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. 
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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 In a February 28, 1995 unpublished 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.
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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.