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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Moon, Judges Baker, Benton, Coleman,
Koontz,*  Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
ROBERT MICHAEL EWING
v.                                                                    Record No.  0281-94-1   OPINION
BY JUDGE JOSEPH E. BAKER
PATRICIA LYNN EWING                                                   SEPTEMBER  5,  1995
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Lawrence D. Diehl for appellant.
Timothy P. Sceviour  (Abrons, Fasanaro & Sceviour,
on brief), for appellee.
Robert Michael Ewing  (husband) appeals from a decree of the
Circuit Court of the City of Chesapeake  (trial court) that
awarded Patricia Lynn Ewing  (wife) a divorce, custody of the
child born of their marriage, and support monies.    In his initial
appeal to this Court, husband contended that the trial court
erred when it  (1) granted wife a divorce on the ground of his
adultery,  (2) failed to award joint custody of the child and
limited his visitation rights,  (3) inequitably divided visitation
on holidays,  (4) failed to apply the "shared" custody provisions
of Code  §  20-108.2, and  (5) failed to consider his child care
expenses, travel expenses, and tax consequences of the parties as
*Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.




required by Code  §  20-108.1.    In a February  28,  1995 unpublished
opinion, all of those issues were decided adversely to husband by
a three-judge panel of this Court, one judge dissenting.    From
that opinion, husband petitioned for a rehearing en banc
requesting only that we define "a day for the purposes of the
interpretation of Virginia Code Ann. Section  20-108.2(G)(3)(c)."1
We agreed to hear that issue en banc.
In husband's brief, filed after his request was granted, he
restated the issue as follows:
Did the trial court error  [sic] in its award
of child support by failing to apply the
shared custody child support guidelines
pursuant to Virginia Code Ann. Section
20-108.2(G)(3)(c) and in its interpretation
of the term "day" as requiring a full  24 hour
period for purposes of said statute?
Code  §  20-108.2, which contains the guidelines for the
determination of child support, reads in pertinent part as
follows:
(G)(3)    In cases involving shared custody,
the amount of child support to be paid is the
difference between the amounts owed by each
parent to the other parent, with the parent
owing the larger amount paying the difference
to the other parent.
*                                                                        *   *   *   *   *   *
(c)  .  .  . The shared custody rules set forth
herein apply when each parent has physical
custody of a child or children born of the
parties,  .  .  . for more than  110 days of the
year.
1Husband did not request a rehearing on the adultery or
other issues decided by the panel.    Accordingly, the panel's
decision on those issues is unaffected by this decision.
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(Emphasis added).    The trial court's decree awarded "legal
custody" to wife and granted the following visitation rights with
child to husband:
[Husband is reserved visitation rights] every
other weekend from Friday evening at  6:00
o'clock p.m. until Sunday evening at  6:00
o'clock p.m. and Tuesday night each week
including overnight if arrangements by
[husband] can be made to deliver the child to
her school the following morning; four weeks
during the summer recess, two of which to be
consecutive to be the last week in June and
first week in July; the week before Labor
day, but not Labor Day weekend unless it is
[husband's] weekend for visitation and the
3rd week in July; that  [wife] shall have two
consecutive weeks with the child in the
summer when there will be no visitation by
[husband] and that while two of the four
weeks when the child is with  [wife] in the
summer will be consecutive, the entire four
weeks will not be consecutive unless agreed
by the parties; and an equal division of the
major holidays alternating said holidays on
an annual basis; the Christmas schedule is to
be from the school recess until December  24th
at  12:00 noon with  [wife];  12:00 noon until
2:00 p.m. December  25th with  [husband];  2:00
p.m. December  25th until  6:00 p.m. December
27th with  [wife], and the remainder of the
Christmas recess to be with  [husband].
Unless the parents can mutually agree on
another schedule, then the time shall
alternate during Christmas  1993 and continue
on an alternating basis hereafter.
Husband concedes that if the Black's Law Dictionary2
definition of a day, "a period of time consisting of twenty-four
hours and including the solar day and the night," is the
definition of "day" the General Assembly intended when Code
2Black's Law Dictionary  357  (5th ed.  1979).
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§  20-108.2(G)(3)(c) was enacted, then he would not be entitled to
the benefits of the shared custody rule.    However, he argues that
he is entitled to credit as a "day" for periods during which he
has visitation rights that are for less than twenty-four hours.
The trial court held that "while Code Section  20-108.2.G.3(c)
sets a threshold figure of  110 days to trigger the 'shared
custody rules,' it is the opinion of the Court that it was the
intent of the General Assembly that these be full twenty-four
hour  (24) hour  [sic] days."    In his brief and during his en banc
oral argument husband argued that a "strict interpretation of
'day'  (as contained in Code  §  20-108.2) requiring a full  24 hour
period of time would be unduly restrictive" and suggested that we
should declare that when enacting that Code section, the General
Assembly intended a day to be defined as follows:
The majority of the time as between each
parent during any  24 hour period which period
shall include an overnight, the said  24 hour
period commencing at the time of the physical
transfer of said child to the parent
exercising said visitation, but excluding
from said computation or times to either
parent any time the child is attending
school, is placed in non-parent day care, or
placed with a third party.
We reject that contention.    We believe that the General
Assembly intended that for the purposes of applying the
provisions of Code  §  20-108.2(G)(3)(c), a day should be defined
as any continuous twenty-four hour period.    We hold that husband
has not shown by this record that the decree awarded him
visitation rights for "more than  110 days of the year," and,
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therefore, the trial court was not required to apply the "shared
custody" provisions of that Code section.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
-  5  -




Elder, J., with whom Benton and Koontz, J.J., join, dissenting.
I respectfully dissent from the majority opinion, which
defines a "day" as a continuous twenty-four hour period.
Instead, as I stated in my separate opinion accompanying the
panel's decision, I would define a day for purposes of the
application of Code  §  20-108.2(G)(3)(C) as "the majority of a
twenty-four hour period, including an overnight."
While I disagree with the majority's definition of a "day,"
I applaud its decision to adopt a definition that courts may
uniformly apply, something the panel majority declined to do.
Unfortunately, the majority's definition is too strict.    In my
view, a "day" should be defined in a fashion that equitably
accounts for the actual time each parent spends with his or her
child.    The majority states that the Black's Law Dictionary
definition of a "day" reveals the General Assembly's intended
definition.    However, Black's lists multiple definitions of a
"day."    For example, "day" is also defined as follows:
The whole or any part of period of  24 hours
from midnight to midnight.  .  .
*                                                                  *   *   *   *   *   *
An artificial period of time, computed from
one fixed point to another twenty-four hours
later, without any reference to the
prevalence of light or darkness.  .  .
The period of time, within the limits of a
natural day, set apart either by law or by
common usage for the transaction of
particular business or the performance of
labor; as in banking, in laws regulating the
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hours of labor, in contracts for so many
"days work," and the like, the word "day" may
signify six, eight, ten, or any number of
hours.
Black's Law Dictionary,  396  (6th ed.  1990).    It is unclear to me
how the majority arrived at its determination that one of several
of the Black's definitions supplies the General Assembly's
intent, and, as I stated earlier, the majority announces a
standard that is too strict.
The facts of this case reveal that for mid-week visitations,
daughter was picked up by husband from school, slept overnight at
husband's residence, ate breakfast with husband, and was returned
to school by husband.    After school, daughter went to day care,
where wife later picked her up.    I believe it is unfair to hold
that husband should not have been credited with a "day's"
visitation in such instances, simply because daughter attended
school during a portion of the twenty-four hour period following
the time he gained physical custody of the daughter.    I do not
believe that the General Assembly meant for courts to apply the
definition of a "day" so rigidly.
My definition of a "day" comports with the majority of
states that have addressed the shared custody issue.    These
states have used "overnight" as the standard with which to
determine whether parents have shared custody of a child.    See,
e.g., Colo. Rev. Stat.  §  14-10-115(8)  (1994)  (stating "shared
physical custody" means that each parent keeps the child
overnight for more than ninety-two nights of the year); Idaho
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Code Rules Civ. Proc., Rule  6(c)(6)  (1993)  (stating a
determination of "shared physical custody" involves whether a
child spends more than  35% of overnights with a parent in a
year); Md. Code Ann., Fam. Law  §  12-201  (1994)  (stating "shared
physical custody" means that each parent keeps the child
overnight for more than  35% of the year).
The parties agreed at trial that if the court were to count
daughter's midweek visitations with husband as "days," husband
would have exceeded the  110 day threshold.    Therefore, I would
reverse the trial court's child support order and remand the
order for a reconsideration based on Code  §  20-108.2's shared
custody guidelines and the definition of a "day" found herein.
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