COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
UNPUBLISHED
Argued at Richmond, Virginia
CLIFTON LEE HARRIS
MEMORANDUM OPINION ∗ BY
v. Record No. 1957-11-2 JUDGE WILLIAM G. PETTY
NOVEMBER 13, 2012
LAURA TERESA HARRIS
FROM THE CIRCUIT COURT OF GREENE COUNTY
J. Howe Brown, Judge Designate
John L. Bauserman, Jr. (Pikrallidas & Associates, on briefs), for
appellant.
Kelly A. Hobbs (Dygert, Wright, Hobbs & Heilberg, PLC, on brief),
for appellee.
Clifton Lee Harris (“husband”) appeals an order of the trial court denying his motion to
modify spousal and child support. Husband alleged that Laura Teresa Harris (“wife”) had been
habitually cohabiting with another man in a relationship analogous to a marriage for more than
one year. Accordingly, husband sought to terminate his spousal support payments pursuant to
Code § 20-109(A). 1 On appeal, husband assigns the following errors: (1) the trial court erred by
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Code § 20-109(A) provides, in pertinent part:
Upon order of the court based upon clear and convincing evidence
that the spouse receiving support has been habitually cohabiting
with another person in a relationship analogous to a marriage for
one year or more commencing on or after July 1, 1997, the court
shall terminate spousal support and maintenance unless
(i) otherwise provided by stipulation or contract or (ii) the spouse
receiving support proves by a preponderance of the evidence that
termination of such support would be unconscionable.
concluding the evidence was insufficient to prove that wife was cohabiting with another person
in a relationship analogous to a marriage for more than one year; (2) the trial court erred by
misinterpreting and misapplying the applicable common law factors to the facts of this case in its
determination of whether wife was cohabiting with another person in a relationship analogous to
a marriage for more than one year; and (3) the trial court erred by permitting wife’s lay witnesses
to give opinion testimony regarding the ultimate issue of fact (i.e., whether wife was cohabiting
with another person in a relationship analogous to a marriage). For the reasons expressed below,
we disagree with husband’s arguments. Therefore, we affirm the judgment of the trial court.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. “On appeal, we view the evidence in the light most favorable to . . . the party
prevailing below, ‘and grant all reasonable inferences fairly deducible therefrom.’” Johnson v.
Johnson, 56 Va. App. 511, 513-14, 694 S.E.2d 797, 799 (2010) (quoting Anderson v. Anderson,
29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999)). Moreover, “[u]nlike questions of fact,
which are binding on this Court if supported by evidence, we review questions of law de novo.”
Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999)
(en banc).
II.
A. Cohabitation in a Relationship Analogous to a Marriage
As husband’s first two assignments of error are related, we will discuss them together.
Husband contends that the trial court erred both as a matter of law and as a matter of fact in its
analysis and findings regarding whether wife habitually cohabited with another person in a
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relationship analogous to a marriage for one year or more. We find no reason to disturb the
findings or conclusion of the trial court on this matter.
As we have recently emphasized, “‘the term “cohabit” means to live together in the same
house as married persons live together, or in the manner of husband and wife.’” Cranwell v.
Cranwell, 59 Va. App. 155, 161, 717 S.E.2d 797, 800 (2011) (quoting Schweider v. Schweider,
243 Va. 245, 248, 415 S.E.2d 135, 137 (1992)). Indeed, “[t]he requirement that the payee
ex-spouse and that party’s paramour be shown to have established and shared a common
residence is firmly established in Virginia case law.” Pellegrin v. Pellegrin, 31 Va. App. 753,
764, 525 S.E.2d 611, 616 (2000) (citing Schweider, 243 Va. at 248-49, 415 S.E.2d at 137;
Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); Frey v. Frey, 14
Va. App. 270, 275, 416 S.E.2d 40, 43 (1992)). “Thus, if two individuals do not share a common
residence, they are not cohabiting. Although ‘proof of a common or shared residence does not
itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.”
Cranwell, 59 Va. App. at 162, 717 S.E.2d at 800 (quoting Pellegrin, 31 Va. App. at 764, 525
S.E.2d at 616). If the finder of fact concludes that two individuals have not established and
shared a common residence, then there is no need to perform further analysis or consider
additional factors—the two individuals are not cohabiting. See id. at 163, 717 S.E.2d at 801.
Here, while the evidence was in conflict regarding the number of nights wife’s boyfriend
spent at her house, the trial court did not find that husband’s evidence proved that wife and her
boyfriend had established and shared a common residence. The boyfriend testified that he
maintained a separate residence and that he was not living at wife’s house. The parties’
daughter, who lived with wife, also testified that she saw the boyfriend only once or twice a
week and that at times she would not see him for two weeks. The daughter also verified that the
boyfriend had a separate house near Charlottesville. Friends of the wife, who had been to her
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home, testified that they did not see any men’s clothing in the house. Finally, wife denied that
her boyfriend resided at her house.
The trial court concluded that husband had failed to prove, by clear and convincing
evidence, that wife was cohabitating with her boyfriend. The trial court expressly found, “I don’t
think they ever established a common residence.” The trial court based its conclusion on the fact
that the boyfriend did not keep clothes at wife’s house. The trial court reasoned that although the
boyfriend was involved in a long-term romantic relationship with wife and kept his snow blower
and motorcycle at wife’s house, such actions did not render him a resident of the house. We
cannot say that the trial court’s conclusion was “plainly wrong or without evidence to support it.”
Code § 8.01-680.
Because husband failed to prove that wife and her boyfriend shared a common residence,
wife has not “been habitually cohabiting with another person in a relationship analogous to a
marriage for one year or more,” under Code § 20-109(A), and the trial court did not err in so
concluding.
B. Admission of Lay Opinion Testimony
With respect to husband’s third assignment of error regarding the admission of lay
opinion testimony, we note that husband’s entire argument on this issue in his brief consists of
the following: “It further was material error of law to allow the opinion testimony of lay
witnesses as to the ultimate issue of fact, of whether the wife and her paramour were living
together, over the objection of the appellant. The trial court committed material and prejudicial
error in this regard.” Appellant’s Br. at 30. Husband cites no legal authority whatsoever to
support his contentions regarding this issue, and husband’s counsel stated at oral argument,
“There’s no cases on point to that.” Oral Argument at 12:20 (Oct. 17, 2012).
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We have repeatedly stated that if a party believes a circuit court has erred, it is that
party’s “duty to present that error to us with legal authority to support [the party’s] contention.”
Fadness v. Fadness, 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008). A party’s failure to do
so, if significant, waives the party’s right to have its contention reviewed by this Court. Id.; see
Rule 5A:20(e) (requiring that an appellant’s opening brief contain “the argument (including
principles of law and authorities) relating to each assignment of error”).
Here, there is a statute directly on point, Code § 8.01-401.3, which provides:
No expert or lay witness while testifying in a civil
proceeding shall be prohibited from expressing an otherwise
admissible opinion or conclusion as to any matter of fact solely
because that fact is the ultimate issue or critical to the resolution of
the case. However, in no event shall such witness be permitted to
express any opinion which constitutes a conclusion of law.
Code § 8.01-401.3(B). Husband has not mentioned this statute—or any other related legal
authority—in his brief, and has thus provided us with no reason why, in the face of this statute,
we should hold that it was error for the trial court to admit the testimony of which husband
complains. Indeed, were we to so hold, we would first have to become an advocate on husband’s
behalf and try to create and develop legal arguments for him. This, however, we will not do.
“A court of review is entitled to have the issues clearly defined and
to be cited pertinent authority. The appellate court is not a
depository in which the appellant may dump the burden of
argument and research. To ignore such a rule by addressing the
case on the merits would require this court to be an advocate for, as
well as the judge of the correctness of, [appellant’s] position on the
issues he raises. On the other hand, strict compliance with the
rules permits a reviewing court to ascertain the integrity of the
parties’ assertions which is essential to an accurate determination
of the issues raised on appeal.”
Fadness, 52 Va. App. at 850, 667 S.E.2d at 865 (alteration in original) (quoting Jones v.
Commonwealth, 51 Va. App. 730, 734-35, 660 S.E.2d 343, 345 (2008)).
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We conclude that husband’s complete failure to cite any legal authority for his argument
regarding his third assignment of error is significant. Therefore, we hold that husband has
waived this argument.
C. Attorneys’ Fees
Wife requests this Court to award her attorneys’ fees and costs incurred in this appeal.
We recognize that “[an] appellate court has the opportunity to view the record in its entirety and
determine whether the appeal is frivolous or whether other reasons exist for requiring additional
payment.” O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Here,
however, we do not deem husband’s appeal frivolous or see other reasons sufficient to warrant
an award of attorneys’ fees and costs. Therefore, we deny wife’s request for such an award.
III.
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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Clifton Lee Harris v. Laura Teresa Harris
Combined Opinion