Support - Child and Spousal § 4-3 (H)(2) - § 4-4

(2) Cohabitation, Effect of

2016—Luttrell v. Cucco, 291 Va. 308
Both the trial court and the Court of Appeals erred in concluding that, for purposes of terminating spousal support pursuant to Code of Virginia § 20-109(A), same-sex couples cannot “habitually [cohabit] with another person in a relationship analogous to marriage.” The ordinary meaning of the words used in the statute and its legislative history indicate that the General Assembly intended the word “person” to include individuals of either sex. This interpretation is consistent with the purpose of Code § 20-109, which is to maintain the relative standing of the parties at the time of the initial support award and to prevent a former spouse from obtaining a windfall at the expense of the other after the recipient has entered a financially interdependent relationship with a third person.

2015—Lommen v. Lommen , Va. Court of Appeals, Unpublished, No. 0964-15-1
The trial court did not err in denying Husband’s motion to terminate spousal support based on Wife’s alleged cohabitation. Although the evidence showed that Wife and her current boyfriend had a child together, that the boyfriend paid $800.00 per month to Wife as child support, and that the boyfriend stayed at Wife’s house a few nights per month, such evidence was insufficient to establish that Wife and her boyfriend shared a common residence.

2015—Coalson v. Coalson, Va. Ct. of Appeals, Unpublished, No. 2022-14-2
The trial court did not err in granting Mother’s motion to strike Father’s evidence on his motion to terminate spousal support. The parties’ separation agreement provided that Father’s support obligation would terminate upon clear and convincing evidence that Mother had been cohabiting for one year or longer with another person in a relationship analogous to marriage. Although the trial court heard that Mother was involved in a romantic relationship with her boyfriend for over a year, that the boyfriend frequently stayed overnight at Mother’s residence, and that Mother and the boyfriend attended family functions and vacationed together, the evidence failed to demonstrate that Mother and her boyfriend shared a common residence.

2013—Kellogg v. Kellogg, Va. Ct. of Appeals, Unpublished, No. 0025-13-4
The trial court did not err in failing to terminate the husband’s obligation to pay supposal support where there was sufficient evidence to support a finding that wife and her boyfriend did not cohabitate in a relationship analogous to marriage. While wife and her boyfriend were in a monogamous and continuous relationship and spent overnights together in one another’s residence approximately 40 percent of the time, they maintained separate residences and finances, did not keep clothing or receive mail at the other’s residences, and split costs when they travelled together. The Court of Appeals specifically noted that the Wife’s three children resided exclusively at Wife’s residence, spending no overnights in her boyfriend’s condo, and found it “inconceivable” that Wife and her boyfriend “would establish and share a common residence excluding Wife’s children.”

2012—Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 1957-11-2
The trial court did not err in refusing to terminate husband’s spousal support obligation where husband failed to prove by clear and convincing evidence that wife had habitually cohabited with another man analogous to marriage for over one year. Though wife’s boyfriend spent the night at the residence periodically, he kept no clothes there and maintained a separate residence in the area.

2012—Brennan v. Albertson, Va. Ct. of Appeals, Unpublished, No. 2042-11-4
The trial court did not err in concluding that former wife was habitually cohabitating with another woman in a relationship analogous to a marriage, pursuant to Va. Code § 20-109(A), despite finding that there was no evidence of sexual intimacy in the relationship. The trial court properly found that the former wife’s relationship was analogous to marriage. The wife and another woman shared a residence for a period of years, and regarded this arrangement as permanent or indefinite; were interdependent with respect to childcare and financial matters; functioned as a family unit, routinely sharing meals and household chores, vacationing together every year, attending each other’s family reunions, occasionally attending church together, and attending the activities of each other’s children; formed close and lasting social and emotional bonds; and manifested an uncommon degree of mutual trust. In determining whether two persons are cohabiting, no one factor is determinative and it is within the province of the trial court to determine what weight to accord each of the factors relevant to the matter presented. (Citing Pellegrin v. Pellegrin, 31 Va. App. 753 (2000)). Consequently, romance and sexual intimacy are not absolute prerequisites for a finding of cohabitation in a relationship analogous to marriage. Therefore, the trial court did not err in granting the former husband’s motion to terminate his obligation to pay spousal support.

2012—Belcher v. Belcher, Va. Ct. of Appeals, Unpublished, No. 2226-11-2
The trial court erred in denying husband’s motion to terminate spousal support and holding that the termination events in Va. Code §20-109, specifically wife’s habitual cohabitation with another person in a relationship analogous to marriage, did not apply to the parties where the only termination event expressly stated in the parties’ separation agreement was wife’s remarriage. In cases involving cohabitation, remarriage, or death, the agreement (if entered into after July 1994) must expressly preclude termination of spousal support on one or all of the statutory grounds. If it fails to do so, Va. Code §20-109 provides that spousal support shall terminate upon the occurrence of any of the cited events. Here, because the agreement did not expressly preclude cohabitation as a possible termination event, the trial court erred in refusing to terminate husband’s spousal support obligation upon wife’s cohabitation with another person.

2011—Cranwell v. Campbell, 59 Va. App. 155
Four factors are used to determine whether one party proves that the other has “cohabited in a relationship analogous to marriage” such that spousal support would terminate: (i) the sharing of a common residence; (ii) intimate or romantic involvement; (iii) the provision of financial support; and (iv) the duration and continuity of the relationship and other indicia of permanency.” Although the trial court has discretion with regard to the weight to assign each factor, the requirement that a common residence be established and shared is a threshold requirement. The later three factors are relevant to determining whether a man and woman who are living together have mutually assumed duties and obligations normally attendant with a marital relationship.
The trial court did not err in finding that wife was not cohabiting with her boyfriend in a relationship analogous to marriage, and thus, did not err in refusing to terminate husband’s spousal support obligation. Wife and the boyfriend resided in different cities, occasionally spent the night together when one party had traveled to the city where the other resided, kept only limited sundries at one another’s respective residences, and did not have keys to one another’s respective residences. Because the parties had not established a common residence, they were not cohabiting.

2009—Tolley v. Tolley, Va. Ct. of Appeals, Unpublished, No. 2736-08-1
Evidence that wife resided in a trailer with another man, slept in a separate room and used a separate bathroom, occasionally wrote checks from her bank account to pay bills for the man after receiving money from him to do so, and occasionally used the man’s vehicle, was insufficient to prove that wife was cohabitating with the man “in a relationship analogous to marriage.” The evidence failed to show that wife and the other man had “mutually assumed the duties and obligations normally associated with a marriage,” failed to prove that the two held themselves out to the community as husband and wife, and failed to show that they were involved in any intimate or romantic relationship with one another.

2007—Stroud v. Stroud, 49 Va. App. 359
Trial court erred in concluding that, for the purposes of interpreting a provision in a Settlement Agreement between Husband and Wife, same sex individuals may not cohabit in Virginia.

2005—O’Hara v. O’Hara, 45 Va. App. 788
Property Settlement Agreement called for spousal support to terminate upon Wife’s habitual cohabitation. Burden of proof is by a preponderance, not the clear and convincing standard pursuant to Va. Code §20-109.

2002—Goldmann v. Goldmann, Va. Ct. of Appeals, Unpublished, No. 1071-02-2
Husband sought to terminate spousal support obligation due to Wife’s cohabitation. Trial court ruled that parties’ agreement negated the Va. Code §20-109 cohabitation provision, and that Husband did not prove cohabitation. The Court of Appeals assumed that the trial court was in error that the agreement negated Va. Code §20-109 cohabitation provision, but affirmed the trial court’s discretion regarding the evidence.

2000—Pellegrin v. Pellegrin, 31 Va. App. 753
Evidence failed to prove ex-Wife cohabited with her boyfriend. Wife’s duty to obtain employment can be inferred from agreement even though not explicitly stated.

1999—Penrod v. Penrod, 29 Va. App. 96
Wife’s long term, intimate and monogamous relationship with male companion amounted to cohabitation within meaning of parties’ separation agreement and warranted termination of spousal support.

1997—Bergman v. Bergman, 25 Va. App. 204
Property Settlement Agreement provided that spousal support shall cease if Wife resides with another man. Facts were that Wife did not reside with another man. “Shall cease” means end permanently.

1996—Min v. Min, Va. Ct. of Appeals, Unpublished, No. 1150-96-3
"Cohabit" means to live together in the manner of Husband and Wife. S chweider 243 Va. 245 (1992).

1992—Schweider v. Schweider, 243 Va. 245
The trial court erred in determining that wife had not “cohabitated with another man” as defined in parties’ PSA. After considering out-of-state caselaw and defining the term “cohabit” as to live together in the same house as married persons live together, or in the manner of husband and wife, the Court found that wife buying a house with another man, combined with periodically sharing a bedroom, occasionally having sexual intercourse, sharing closet space, each other’s furniture, the responsibility for cleaning the house, the mortgage, utilities, and maintenance payments was sufficient to satisfy the definition of “remarriage” set forth in the parties’ PSA.

(3) Remarriage, Effect of

2007—Barker v. Hutson-Wiley, Va. Ct. of Appeals, Unpublished, No. 0740-06-4
Where Property Settlement Agreement stated that Husband’s spousal support “shall not be modified or terminated except in the sole event of the death of either party” and was therefore silent on the issue of remarriage, the trial court did not err based on the holdings in MacNelly and Hardesty that the Property Settlement Agreement does not clearly, expressly, and unequivocally preserve Wife’s right to spousal support in the event of remarriage.

2003—Hardesty v. Hardesty, 40 Va. App. 663
Husband’s obligation to pay spousal support terminates upon Wife’s remarriage in the absence of an express statement to the contrary. Language that support “cannot be terminated for any reason” is not sufficient for support to continue after remarriage.

1998—Langley v. Johnson, 27 Va. App. 365
Spousal support terminates upon remarriage of recipient in the absence of express language in an agreement that support survives remarriage. Va. Code §20-109.

1993—MacNelly v. MacNelly, 17 Va. App. 427
In order to be effective, any agreement which seeks to abrogate the effect of the statutory mandate that spousal support terminates upon the death of either party or the remarriage of the spouse receiving support must contain express language either citing Code of Virginia §20-109 or stating that death or remarriage does not terminate the obligation. The absence of language regarding the effect of remarriage on the spousal support obligation, even if the agreement contains language regarding the effect of death on the obligation, is insufficient to establish the parties’ intent to avoid the statute.

(I) Appeal

2011—West v. West, 59 Va. App. 225
The trial court erred in finding that it had no authority on remand to hear motions to modify child and spousal support filed after the original case was remanded to the trial court. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances alleged in the modification petitions did not exist at the time of the order initially appealed, nor was the subject of the order appealed.

2007—Robinson v. Robinson, 50 Va. App. 189
The failure of a trial court to make written findings supporting its decisions when awarding spousal support in contested cases constitutes reversible error. (See also Benzino v. Benzino, 52 Va. App. 256).

2005—Robinson v. Robinson, 46 Va. App. 652
Where an equitable distribution award is reversed on appeal and the provisions with regard to the marital property are to be considered on remand, the court must necessarily re-examine spousal support in the light of whatever new or different considerations flow from the additional proceedings.

1996—Nenninger v. Nenninger, Va. Ct. of Appeals, Unpublished, No. 1415-95-3
District Court order superseded by Circuit Court order. Reversal of Circuit Court order, on appeal, does not revive District Court order. Court of Appeals needs transcript of trial.

1993—Reid v. Reid, 245 Va. 409
A party is not entitled as a matter of course to suspension of a judgment for spousal support pending appeal. Va. Code §8.01-676.1(D) authorizes a court to refuse to suspend such orders.

A party is not entitled to restitution of spousal support paid pursuant to an order that is later reversed on appeal.

(J) Jurisdiction (1) Personal (2) Subject Matter

2015—Ozfidan v. Ozfidan, Va. Ct. of Appeals, Unpublished, No. 1265-14-2
The circuit court erred in refusing to address the spousal support issue for the sole reason that Wife did not request support in her circuit court pleadings. In Husband’s pleadings, he requested the circuit court to limit the duration of spousal support awarded by the juvenile court. Thus, the circuit court had authority under Code of Virginia § 20-79(b) to address spousal support.

2014—Wroblewski v. Russell, 63 Va. App. 468
The trial court erred in awarding wife spousal support despite having granted Husband’s motion to strike her Complaint when she filed to corroborate her grounds for divorce. With no other pleading before it requesting spousal support, the trial court lacked the authority to award spousal support to Wife.

(3) Transfer

2012—Williams v. Williams, 61 Va. App. 170
Va. Code §20-79(c) authorizes a circuit court to transfer to an appropriate juvenile court jurisdiction pertaining to maintenance of a spouse, support, care, and custody of children after the entry of a divorce decree. However, the statute does not authorize such a transfer from one circuit court to another. Though a transfer may be appropriate in cases where venue is improper, when a court lacks subject matter jurisdiction, the case must be dismissed.

2010—Kotara v. Kotara, Va. Ct. of Appeals, Unpublished, No. 0290-09-4
A Virginia court adjudicated all issues involved in a divorce, including spousal support. After both husband and wife moved from Virginia to Texas, the husband sought modification of spousal support in a Texas court. The Texas court refused to consider modification of spousal support based on Virginia’s exclusive and continuing jurisdiction under the Uniform Interstate Family Support Act. When the husband subsequently moved the Virginia court to “dismiss issues of spousal support from the court’s jurisdiction” based on Va. Code § 8.01-265, Virginia’s forum non conveniens statute, the trial court denied the motion. A jurisdictional issue prohibited the Court of Appeals from hearing the appeal.

(4) Uniform Interstate Family Support Act (UIFSA)

2012—O’Neil v. O’Neil, 60 Va. App. 156
The trial court erred in transferring Husband’s appeal of a spousal support modification case to Louisiana based on Va. Code §8.01-265, the general forum non conveniens statute. Va. Code §20-88.43:2, part of the Uniform Interstate Family Support Act (UIFSA), requires that the court that issued a spousal support order retain continuing, exclusive jurisdiction to modify the support order for the duration of the support obligation, and supplants Va. Code §8.01-265. The primary purpose of the prohibition of modification of spousal support by a non-issuing state tribunal under UIFSA is to minimize choice of law problems. Avoiding conflict of law problems becomes almost impossible if spousal support orders are subject to modification in a second state. (Note that this ruling is limited to spousal support cases under UIFSA, as UIFSA does provide for alternative treatment of multi-jurisdictional issues in child support matters.)

Although the General Assembly has not formally adopted any of the official comments in conjunction with the adoption of UIFSA’s various provisions, the comments are an appropriate aid in determining how UIFSA applies in a given case.

§4-4. Separate Maintenance

1997—Scott v. Scott, 24 Va. App. 364
Court has no jurisdiction to award spousal support in a common law separate maintenance action after entry of decree of divorce.

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