Pellegrin v. Pellegrin

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

JOHN DAVID PELLEGRIN
OPINION BY
v. Record No. 2142-98-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 14, 2000
DIANE LYNN BINGMAN PELLEGRIN

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

John D. Pellegrin, pro se.

David M. Levy (Surovell, Jackson, Colten &
Dugan, on brief), for appellee.

John David Pellegrin ("husband") appeals from the decision

of the trial court, claiming it erred in refusing to terminate

spousal support. Husband specifically contends that the court

(1) improperly declined to impute income to his former spouse,

Diane Lynn Bingman Pellegrin ("wife"); (2) failed to consider

wife's gross income earned from rental properties that she

owned; (3) failed to consider husband's disability; and (4)

failed to find wife was cohabiting on a "substantially

full-time" basis with her paramour, all in contravention of

various provisions of the parties' Property Settlement Agreement

("PSA") governing spousal support. Husband also contends the

trial court erred in awarding attorney's fees to wife.
 The parties were divorced by final decree of the Circuit

Court of Fairfax County on March 5, 1991. The decree

incorporated the parties PSA, whose provisions provide the basis

of husband's claims on appeal. The trial court denied husband's

petition seeking to terminate the spousal support he was

obligated to pay to wife under the PSA.

I.

Husband first contends the trial court erred in denying his

petition to terminate support because the court failed to impute

income to wife. The court's ruling is based on its construction

of the PSA and its conclusion that since the agreement did not

expressly require wife to seek and obtain employment, income

could not be imputed to wife.

Husband contends the obligation is established by

implication, noting Section 8 of the PSA, which reads, in

pertinent part:

If, as of May 1, 1995, the wife is employed
or thereafter becomes employed with an
annual gross income in excess of $25,000,
husband's obligation to pay spousal support
and maintenance shall be reduced by 50
percent of the amount by which wife's gross
annual income exceeds $25,000, or by fifty
percent of the amount by which wife's
monthly income exceeds $2,083.33.

The PSA also provides:

[S]pousal support payments . . . shall in
any event be reduced to a maximum of Two
Thousand Dollars ($2,000.00) per month,

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 after wife's graduation from college, or
June 1, 1997, whichever first occurs.

Finally, the PSA, also provides that husband "shall pay, or

cause to be paid, the tuition and related fees, not including

room and board, for wife in any college, university with an

accredited undergraduate and/or graduate degree program in which

wife is enrolled, husband's liability and responsibility as to

same to terminate as of June 1997 . . . ."

Husband contends that because the PSA required him to pay

for wife's college and graduate school education, and

contemplated decreases in his obligation to support her as her

income increased, the PSA should be construed as requiring wife

to seek employment. We agree.

It is well established that a property settlement agreement

is a contract between the parties and that their rights and

obligations are defined under it. See Douglas v. Hammett, 28

Va. App. 517, 523, 507 S.E.2d 98, 101 (1998) (separation

agreements and property settlement agreements are contracts);

Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764

(1994) ("[W]e must apply the same rules of interpretation [to

property settlement agreements as are] applicable to contracts

generally."); Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d

796, 799 (1985). "'"[W]here a contract is complete on its face,

is plain and unambiguous in its terms, the court is not at

liberty to search for its meaning beyond the instrument itself

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. . . ."'" Harris v. Woodrum, 3 Va. App. 428, 432, 350 S.E.2d

667, 669 (1986) (quoting Berry v. Klinger, 225 Va. 201, 208, 300

S.E.2d 792, 796 (1983) (quoting Globe Co. v. Bank of Boston, 205

Va. 841, 848, 140 S.E.2d 629, 633 (1965))). In determining the

intent of the parties, courts will generally not infer covenants

and promises which are not contained in the written provisions.

However,

what is necessarily implied is as much a
part of the instrument as if plainly
expressed, and will be enforced as such. If
the language of the instrument leaves the
meaning of the parties in doubt, the court
will take into consideration the occasion
which gave rise to it, the obvious design of
the parties, and the object to be attained,
as well as the language of the instrument
itself, and give effect to that construction
which will effectuate the real intent and
meaning of the parties.

Va. Ry. & Power Co. v. City of Richmond, 129 Va. 592, 611, 106

S.E. 529, 536 (1921) (citing Southern Ry. Co. v. Franklin Co.,

96 Va. 693, 32 S.E. 485 (1899)). In determining the parties'

intent, courts

are never shut out from the same light which
the parties enjoyed when the contract was
executed, and in that view they are entitled
to place themselves in the same situation
which the parties who made the contract
occupied, so as to view the circumstances as
they viewed them and so to judge of the
meaning of the words and of the correct
application of the language to the things
described.

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Talbott v. Richmond & Danville R. R. Co., 72 Va. (31 Gratt) 685

(1879); see also Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123,

125 (1974) ("Ascertainment of the intent of the contracting

parties is the cardinal rule in the construction of agreements.

To do that the court will put itself in the situation occupied

by the parties and look to the language employed, the subject

matter and purpose of the parties, and all other pertinent

circumstances.").

In the case before us, the record establishes that the

parties agreed that husband's support obligation would be

diminished as wife's income from employment increased. That

wife would become employed was clearly within the contemplation

of the parties. Furthermore, the parties agreed that the

support obligation was keyed, in part, to wife earning her

undergraduate degree, at which time husband's obligation to

support was to diminish by a set amount. Furthermore, husband

specifically agreed to pay the costs of wife's undergraduate

and/or graduate degrees, an obligation which was to terminate

seven years after the PSA was entered, specifically, June 1997.

Given the circumstances attending the agreement, and the object

to be attained, viz., that the level of support which wife could

enjoy under the terms of the PSA was made dependant upon her

ability to contribute to her own support or become wholly

self-supporting, and that, in any event, wife's support would be

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reduced by a set amount upon obtaining her undergraduate degree,

it follows, by implication, that the parties contemplated that

wife would assume responsibility for her support within her

capacity to earn income. In sum, we find that husband's

agreement to pay for wife's educational costs after they

divorced relates to wife's capacity to earn income, and when

read together with the provisions requiring a reduction of

support in relation to wife's earned income, established an

implied contractual duty upon wife to make a reasonable effort

to seek employment, at least, upon completion of her degree.

Accordingly, because the trial court erred in finding no such

duty arose from the terms of the contract, we remand for further

proceedings based on the evidence presented.

II.

Husband further argues that rental income enjoyed by wife

should be treated as "income from employment," but this

contention previously was raised by husband in an earlier appeal

and rejected by this Court in Pellegrin v. Pellegrin, No.

0143-96-4 (Va. Ct. App. Oct. 29, 1996). This issue therefore is

barred as res judicata, and it will not be addressed further.

III.

Husband argues also that his obligation to pay spousal

support should have been terminated or reduced under the terms

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of the PSA because he is disabled. The provision at issue

states:

The parties agree that the [husband's]
obligation to pay spousal support hereunder
shall be subject to modification in the
event of [husband's] disability causing
reduction or loss of income on his part
. . . .

Husband failed to prove that he is disabled and that the

disability caused a reduction in his income; indeed, he

testified that he is "working harder than ever in his life,"

providing evidence which belies his claim of disability. This

testimony plainly contradicted husband's earlier testimony as to

a purported medical disability. Furthermore, husband presented

no evidence that his medical disability, if any were proven,

caused his claimed reduction in income, as required by the PSA.

Consequently, we find no error in the trial court's conclusion

that husband's health did not render him "disabled" within the

meaning of the PSA.

Furthermore, we find no merit in husband's contention that

the word "disability" should not be limited to a disability

personal to him and should be extended to encompass diminished

ability to earn sufficient income due to factors such as

down-turns in the economy, his employment status, or changes in

his client base. Section 8 of the PSA makes clear that the

meaning ascribed to the term "disability" as contemplated by the

parties was one personal to him.

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 Indeed, the law of the Commonwealth governing the disabled

is consistent with that of the United States in deeming that a

"'person with a disability' means any person who has a physical

or mental impairment that substantially limits one or more of

his major life activities . . . ." Code § 51.5-3; cf. 42

U.S.C.A. § 12102(2)(A). Because of Section 8's patent concern

with the earning capacity of the husband, the term "disability"

as used in that section may only be inferred to concern a

disability personal to him.

In addition to the commonly accepted meaning of the term

"disability" as applied in pertinent law, Section 8 of the PSA

states clearly that the disability in question must inhere in

the husband. As is patent in husband's argument, the reduction

of income of which he complains was caused by the financial

vicissitudes of third parties; the PSA requires that the

reduction or loss of income result from husband's disability.

If the parties had intended that term to include unexpected

business losses, they should have, and could have, specified

that intent in their agreement. Having failed to do so, we will

not redefine "disability" to render it broader than its common

usage and its context within the PSA suggests.

IV.

Next, husband contends that the trial court erred in

denying his petition for a reduction of spousal support because

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wife cohabits on a "substantially full-time" basis with her

paramour in contravention of Section 8 of the PSA. That section

provides, in pertinent part, that spousal support shall

terminate if the wife "for any period of one month or more

cohabits on a full-time or substantially full-time basis with a

male non-relative." Thus, whether the husband's contention is

valid depends upon the meaning of the word "cohabit" as

contemplated by the PSA. See Bergman v. Bergman, 25 Va. App.

204, 211-12, 487 S.E.2d 264, 267 (1997); Smith v. Smith, 3

Va. App. 510, 513, 351 S.E.2d 593, 595 (1986) ("In Virginia,

property settlement agreements are contracts subject to the same

rules of formation, validity, and construction as other

contracts.").

The PSA in question does not define the word "cohabit."

The term has been the subject of judicial construction in

various contexts, however. See, e.g., Schweider v. Schweider,

243 Va. 245, 248-49, 415 S.E.2d 135, 137 (1992) (construing the

term within the context of a PSA); Petachenko v. Petachenko, 232

Va. 296, 299, 350 S.E.2d 600, 602 (1986) (considering what

constituted sufficient "cohabitation" to terminate a period of

marital desertion); Tarr v. Tarr, 184 Va. 443, 35 S.E.2d 401

(1945) (deciding what constituted "cohabitation" condoning a

spouse's adultery); Johnson v. Commonwealth, 152 Va. 965, 970,

146 S.E. 289, 291 (1929) (construing the term in a prosecution

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of criminal defendant for lewd and lascivious cohabitation);

Penrod v. Penrod, 29 Va. App. 96, 99-101, 510 S.E.2d 244, 245-46

(1999) (construing "cohabit" as intended in parties' PSA); Frey

v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992) (also

construing cohabitation within intent of a PSA). A body of law

of significant consistency which addresses the term's meaning

emerges from these cases and those decided in our sister states, 1

particularly those addressing the issue in the context of

property settlement agreements. 2 The following factors generally

have been considered relevant to the court's determination of

whether cohabitation has been proved.

1. Common residence

The 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. See

Schweider, 243 Va. at 248-49, 415 S.E.2d at 137; Frey, 14

1
See, e.g., Konzelman v. Konzelman, 729 A.2d 7, 16 (N.J.
1999) ("Cohabitation involves an intimate relationship in which
the couple has undertaken duties and privileges that are
commonly associated with marriage. They can include, but are
not limited to, living together, intertwined finances such as
joint bank accounts, sharing living expenses and household
chores, and recognition of the relationship in the couple's
social and family circle."). See also Baker v. Baker, 566
N.W.2d 806 (N.D. 1997); Gordon v. Gordon, 675 A.2d 540 (Md.
1996); Iowa v. Kellogg, 542 N.W.2d 514 (Iowa 1996).
2
The cases we cite in this opinion reflect the current
status of a body of law which continues to evolve. It is,
therefore, not intended to be exclusive or definitive.

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Va. App. at 275, 416 S.E.2d at 43 ("cohabitation, analogous to a

marriage," means a status in which a man and woman live together

continuously, or with some permanency, mutually assuming duties

and obligations normally attendant with a marital relationship);

see also Petachenko, 232 Va. at 299, 350 S.E.2d at 602. The

shared common residence factor has been utilized as an element

of the definition of cohabitation even before its use in

property settlement agreements. See Johnson, 152 Va. at 970,

146 S.E. at 291 (cohabit means "to live together in the same

house as married persons live together, or in the manner of

husband and wife"). However, proof of a common or shared

residence does not itself establish cohabitation. See Bergman,

25 Va. App. at 213, 487 S.E.2d at 267 (citing Schweider, 243 Va.

at 248, 415 S.E.2d at 137; Frey, 14 Va. App. at 273, 416 S.E.2d

at 42).

2. Intimate or romantic involvement

An intimate relationship does not necessarily require

sexual intimacy. See Penrod, 29 Va. App. at 101, 510 S.E.2d at

246 (a couple's sexual relationship alone is not a sufficient

consideration in determining cohabitation). While sexual

intimacy may provide significant proof of cohabitation, see

Frey, 14 Va. App. at 275, 416 S.E.2d at 43, other indicia of a

couple's close, interrelated functioning are equally important.

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See Penrod, 29 Va. App. at 101, 510 S.E.2d at 246; see also

Petachenko, 232 Va. at 299, 350 S.E.2d at 602. "'[Cohabitation]

. . . imports the . . . continuing condition of living together

and carrying out the mutual responsibilities of the . . .

relationship.'" Schweider, 243 Va. at 248, 415 S.E.2d at 137

(quoting Petachenko, 232 Va. at 299, 350 S.E.2d at 602).

Compare Gordon v. Gordon, 675 A.2d 540, 547 (Md. 1996) ("[T]he

ordinary definition of 'cohabitation,' describing a relationship

of living together 'as man and wife,' connotes a mutual

assumption of the duties and obligations associated with

marriage.").

3. The provision of financial support

Several decisions include receipt of financial

contributions from the paramour to the payee ex-spouse as a

factor to be considered. See Schweider, 243 Va. at 248-49, 415

S.E.2d at 137; Frey, 14 Va. App. at 275, 416 S.E.2d at 4; see

also Petachenko, 232 Va. at 299, 350 S.E.2d at 602.

"[Contributions] to financial support [by the paramour] . . .

tend[ ] to prove the assumption of duties or obligations

attendant to marriage . . . ." Frey, 14 Va. App. at 275, 416

S.E.2d at 43. See also Gordon, 675 A.2d at 548 (Maryland Court

of Appeals found proof of shared assets and common bank accounts

to be significant in determining cohabitation); cf. In the

Matter of the Marriage of Winningstad, 784 P.2d 101, 104 (Ore.

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App. 1989) (holding that without proof of such financial

contribution, Oregon courts shall not terminate spousal

support).

4. Duration and continuity of the relationship and other
indicia of permanency

In Petachenko, the Virginia Supreme Court made clear that

marital cohabitation "imports the continuing condition of living

together." 232 Va. at 299, 350 S.E.2d at 602 (emphasis added);

see also Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630,

632 (1963). No bright line test of duration has been

established under our case law. See, e.g., Penrod, 29 Va. App.

at 98-101, 510 S.E.2d at 245-46 (dispositive evidence included

intimate relationship of more than six years' duration between

former wife and her paramour). 3

In addition to specific measures of time, courts have

examined other factors of a more circumstantial nature which

evidence stability and permanency to determine whether

cohabitation has been proved. See, e.g., Gordon, 675 A.2d at

548 (community's view of couple's relationship held probative in

determining cohabitation); Iowa v. Kellogg, 542 N.W.2d 514, 518

(Iowa 1996) (whether couple hold themselves out as "husband and

3
In those cases where the parties' definition of the
requisite time is clear, the PSA controls. See Douglas, 28
Va. App. at 523, 507 S.E.2d at 101; Jones, 19 Va. App. at
268-69, 450 S.E.2d at 764; Tiffany, 1 Va. App. at 15, 332 S.E.2d
at 799.

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wife" is an element in determining cohabitation). 4 Finally, the

other factors to be applied in determining cohabitation, i.e.

common residence, intimate or romantic involvement, and

provision of financial support, may also be probative of the

continuity and duration of a relationship.

We emphasize that, although the enunciated factors provide

discrete categories of evidence relevant to the issue, no one

factor is determinative. See Penrod, 29 Va. App. at 101, 510

S.E.2d at 246 (a court's findings "must be based upon evidence

concerning the overall nature of the relationship, not merely a

piecemeal consideration of individual factors"); Frey, 14

Va. App. at 275, 416 S.E.2d at 43 (trial courts must not give

any single factor dispositive effect); cf. Bergman, 25 Va. App.

at 213, 487 S.E.2d at 267 ("cohabit" and "co-reside" are not

synonymous, each having distinct elements and meanings).

Furthermore, it is within the province of the trial court to

determine what weight to accord each of the factors relevant to

the matter presented. See Richardson v. Richardson, 242 Va.

242, 246, 409 S.E.2d 148, 151 (1991) (what weight to give the

evidence is within the unique province of the trier of fact).

4
See also Francis v. Francis, 72 Va. (31 Gratt.) 411
(1879). Although not a case involving the issue of cohabitation
in the context of divorce, the holding in Francis includes as
relevant circumstantial evidence of cohabitation the
"impression" of persons in the couple's immediate community that
they were married. See id. at 413.

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 Applying these principles to the instant case, we find the

trial court did not err in determining that the evidence failed

to prove cohabitation. The evidence, stated in the light most

favorable to wife as the prevailing party, see Anderson v.

Anderson, 29 Va. App. 673, 677, 514 S.E.2d 369, 372 (1999),

established that wife has been romantically involved in an

exclusive relationship with her paramour since 1989, that their

relationship has been marked by sexual intimacy since 1990, that

they have attended family functions together, that they have

vacationed together, and that they have made frequent visits to

each other's homes. Wife's paramour has established a close and

familial relationship with the parties' daughters. However, the

evidence failed to prove that wife shared a common residence

with him or that they mutually assumed the duties and

obligations normally associated with a marriage. Although

wife's companion undertook some of the household chores while in

her home, scant evidence proved that he financially contributed

to or supported her household in any significant way. Evidence

that he loaned money to wife and her children and that he and

wife regularly exchanged gifts is insufficient to establish the

degree of financial interdependence generally associated with

marital relationships. Based on this record and the requisite

standard of review, we cannot say the trial court improperly

weighed the factors or that the evidence established

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cohabitation as a matter of law. See Konefal v. Konefal, 18

Va. App. 612, 614, 446 S.E.2d 153, 154 (1994).

V.

Husband's final claim on appeal challenges the trial

court's award of attorney's fees to wife. Specifically, he

challenges the award of $5,000 for attorney's fees the wife

expended in the successful defense of the husband's motion to

terminate spousal support; $500 for the fees she incurred in the

enforcement of the PSA in a rule to show cause proceeding; and

$10,000 for fees incurred in her defense of an action brought by

husband to set aside the final decree of divorce and its

incorporated PSA on the ground of fraud.

The latter issue is res judicata. In an earlier appeal,

the award of $10,000 attorney's fees was determined appropriate

under, and consistent with, the PSA's provision governing such

awards. See Pellegrin v. Pellegrin, No. 0765-98-4 (Va. Ct. App.

Nov. 24, 1998) (rehearing denied, Va. Ct. App. Jan. 4, 1999)

(petition for appeal filed in the Supreme Court, Jan. 25, 1999).

The remaining claims with respect to the award of attorney's

fees are controlled by the language of the PSA, which states:

The parties agree that any expenses,
including but not limited to, counsel fees,
court costs, and travel, incurred by a party
in the successful enforcement of any of the
provisions of this Agreement, whether
through litigation or other action necessary
to compel compliance herewith, shall be
borne by the defaulting party. Any such

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 costs incurred by a party in the successful
defense to any action for enforcement of any
such provisions shall be borne by the party
seeking to enforce compliance.

The award of attorney's fees is normally within the

discretion of the trial court. See Graves v. Graves, 4 Va. App.

326, 333, 357 S.E.2d 554, 558 (1987). We find that the actions

for which attorney's fees were awarded involved the successful

enforcement of the PSA and that the court did not err in making

its award.

For the reasons stated in this opinion, we affirm in part,

and reverse and remand in part, the decision of the trial court.

Affirmed in part,
reversed and
remanded in part.

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