COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
BETTIE W. PENROD
OPINION BY
v. Record No. 0650-98-4 JUDGE WILLIAM H. HODGES
FEBRUARY 2, 1999
JAMES E. PENROD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
Thomas P. Mains, Jr. (Mains & Mains, L.C., on
brief), for appellant.
David D. Masterman (Condo & Masterman, P.C.,
on brief), for appellee.
Bettie W. Penrod (wife) appeals the decision of the circuit
court terminating her spousal support payments. Wife contends
the trial court erred when it found that James E. Penrod
(husband) established that she cohabitated with a man for more
than sixty consecutive days so as to be "remarried" under the
terms of the parties' separation agreement. Finding no error, we
affirm the decision of the trial court.
Under familiar principles, "we construe the evidence in the
light most favorable to husband, the prevailing party below,
granting to him all reasonable inferences fairly deducible
therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818, 448 S.E.2d
884, 885 (1994) (citation omitted).
A separation agreement . . . is a contract
and must be construed as such. Where the
agreement is plain and unambiguous in its
terms, the rights of the parties are to be
determined from the terms of the agreement
and the court may not impose an obligation
not found in the agreement itself.
Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764
(1994). "[O]n appeal if all the evidence which is necessary to
construe a contract was presented to the trial court and is
before the reviewing court, the meaning and effect of the
contract is a question of law which can readily be ascertained by
this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d
342, 346 (1987).
Wife and husband entered into a property settlement
agreement in December 1987 in connection with their divorce and
separation. The trial court ratified, affirmed, and incorporated
the agreement into the final decree of divorce. The court
entered that decree on December 31, 1987. In pertinent part, the
agreement provided:
12. The Husband shall pay to the Wife
as and for her support and maintenance the
sum of Five Hundred Dollars ($500) per month,
commencing on the thirtieth (30th) day of the
month in which this Agreement is fully
executed. The payments shall continue
thereafter on the thirtieth (30th) day of
each and every month until the Husband's
obligation to provide child support pursuant
to paragraph 11(b) ceases, at which time the
amount the Husband shall pay to the Wife as
and for her support and maintenance shall
increase to Eight Hundred Dollars ($800) per
month. The Husband's obligation to pay
spousal support is nonmodifiable as to amount
and shall continue until the Wife remarries,
dies, or until the Husband's death, whichever
event occurs first. For the purposes of this
Agreement, the Wife shall be deemed to have
"remarried" in the event she cohabits and
lives with a member of the opposite sex in a
sexual relationship without the benefit of
marriage for a period in excess of sixty (60)
consecutive days.
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The underlined phrases were handwritten and initialed additions
to the typed agreement. The closing phrase "or with the same
individual for a period in excess of thirty (30) days during a
consecutive twelve (12) month period" was crossed out.
On December 1, 1995, husband filed a motion to terminate
spousal support and for restitution based on fraudulent receipt
of spousal support. Husband alleged that wife committed fraud by
cohabiting with Gerald Hardman. At a March 4, 1998 hearing,
husband and a private investigator testified. The parties also
introduced the depositions of wife, the parties' eldest daughter,
and Hardman's oncologist.
The uncontested evidence established that wife lived in a
house owned by Hardman in Virginia after the parties divorced.
Wife relocated to Florida in 1989. Hardman moved to the same
area. Wife maintained an apartment in Florida but kept
"valuable" items at Hardman's home. Wife stayed at Hardman's
house three or four nights a week during the period through 1995,
often sleeping in the same bed. Wife could be reached by
telephone at Hardman's home, not at her apartment. Wife had keys
to Hardman's home. Wife displayed her family photographs at
Hardman's home. One of the parties' daughters lived in wife's
apartment and paid the utilities, although wife paid the
mortgage. Wife and Hardman vacationed together, largely, if not
entirely, at Hardman's expense.
Husband testified that wife admitted she had at least one
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sexual encounter with Hardman during the parties' marriage. Wife
denied ever having a sexual relationship with Hardman, although
she admitted that Hardman was not seeing anyone else. In his
deposition, Hardman's oncologist stated that Hardman reported
having sex every two weeks in January 1994, but said the
frequency had dropped to every three weeks by May 1994 following
Hardman's treatment for prostate cancer. Hardman's medical file
also contained a notation dated November 1994 in which Hardman
reportedly told his doctor that he lived with a friend who would
lose alimony if they lived together for more than sixty days,
that it was a friendship only and not a sexual relationship, and
that he would like his records if requested.
Wife contended that Hardman's home was larger and more
secure than her apartment. She admitted that she was conscious
of the restriction in the parties' agreement and denied ever
cohabitating with Hardman for sixty consecutive days.
In Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135
(1992), the Virginia Supreme Court stated that "the term
'cohabit' means 'to live together in the same house as married
persons live together, or in the manner of husband and wife.'"
Id. at 248, 415 S.E.2d at 137. The Court further stated that
"[w]hile engaging in sexual relations is a factor in determining
cohabitation, '"matrimonial cohabitation" consists of more than
sexual relations. It also imports the continuing condition of
living together and carrying out the mutual responsibilities of
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the marital relationship.'" Id. (citation omitted). The
parties' agreement in Schweider provided that spousal support
would terminate upon wife's remarriage, which was defined to
include "'the wife's permanent cohabitation with a male as if to
all appearances they were otherwise married.'" The evidence in
Schweider proved that wife and her live-in companion purchased a
home together, shared the master bedroom and closet, shared
mortgage and utility expenses, and had a sexual relationship.
The trial court found that wife's permanent relationship with her
companion was a matter of economic necessity and that they acted
more like roommates than spouses. The Supreme Court reversed the
trial court's decision, finding that the undisputed evidence
established that wife's relationship was a "remarriage" for
purposes of the parties' agreement. "We cannot conceive of what
conduct the husband and the wife contemplated if that conduct did
not include at least the wife's sharing a bedroom with another
man for a substantial amount of time since 1988." Id. at 250,
415 S.E.2d at 138.
In Frey v. Frey, 14 Va. App. 270, 416 S.E.2d 40 (1992), the
wife had a sexual relationship with her live-in companion but
maintained separate finances. We reversed the trial court's
finding that the phrase "'cohabitation, analogous to a marriage'
necessarily require[d] an agreement or arrangement between the
[wife and her live-in companion] . . . in regard to financial
support." Id. at 272, 416 S.E.2d at 41. We held
that the phrase, "cohabitation, analogous to
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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. It involves more than living
together for a period of time and having
sexual relations, although those factors may
be significant; "[i]t also imports the
continuing condition of living together and
carrying out the mutual responsibilities of
the marital relationship."
Id. at 275, 416 S.E.2d at 43 (citations omitted).
Here, credible evidence supports the trial court's finding
that wife and Hardman were involved in an ongoing relationship
analogous to marriage. To a private investigator posing as a
real estate buyer interested in buying Hardman's house, wife
described herself as living in Hardman's house for the past four
or five years. Wife admitted staying at Hardman's house three or
four times a week over a period of years, sleeping in the same
room and sometimes in the same bed. Wife also admitted that she
kept numerous items of personalty, including clothing, at
Hardman's home. Hardman and wife vacationed together, usually at
Hardman's expense. Hardman gave wife gifts, including a diamond
ring. While wife testified that the relationship with Hardman
was not sexual, other evidence which the trial court found more
credible indicated that Hardman and wife were involved in a
long-term intimate and monogamous relationship. Wife admitted in
her deposition that she consciously caused breaks in the time she
stayed at Hardman's home because of the "sixty consecutive days"
requirement in the parties' agreement. The trial court found
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that wife returned to her separate apartment for a portion of
each week in an attempt to circumvent the language in the
parties' agreement triggering the cessation of spousal support.
A finding of "cohabitation" must be based upon evidence
concerning the overall nature of the relationship, not merely a
piecemeal consideration of individual factors such as its sexual
or financial components. Viewed as a whole, the trial court
found that wife's long-term relationship with Hardman amounted to
cohabitation and living in a sexual relationship for a period in
excess of sixty consecutive days. That finding is supported by
credible evidence. Therefore, pursuant to the parties'
agreement, wife was no longer entitled to spousal support.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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