Marriage of Woillard CA2/6

Filed 1/14/14 Marriage of Woillard CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re the Marriage of CORA B. and JOHN 2d Civil No. B241536
R. WOILLARD. (Super. Ct. No. D154961)
(Ventura County)

CORA B. WOILLARD,

Appellant,

v.

JOHN R. WOILLARD,

Respondent.

The Woillards' lengthy marriage terminated by dissolution in 1990. A term
of the judgment provided that respondent (John) would pay appellant (Cora) $4,000 per
month in spousal support. The order further provided the support was "non-modifiable,"
and that it would end upon John or Cora's death, or her remarriage or "cohabitation with
an un-related male," and that she had a duty to notify John of her cohabitation.
In 2011, John sought to recover support payments he made after July 2005,
contending his obligation to pay support terminated when Cora commenced her
cohabitation with Keith McLeod (Keith). As we shall explain, substantial evidence
supports the trial court's finding that Cora's relationship with Keith established itself as
"cohabitation," by August 1, 2005. The record strongly supports the conclusion that the
relationship was tantamount to a marriage. The court correctly determined that John's
obligation to pay support terminated upon Cora's cohabitation with Keith, and awarded
John the sum of his subsequent support payments.
The marriage of Cora and John Woillard terminated in 1990. The judgment
of dissolution incorporated their marital settlement agreement (MSA) and provided for
non-modifiable spousal support. In 2011, John filed an order to show cause to terminate
spousal support. He alleged his obligation to pay support terminated in July 2005, when
Cora started cohabiting with an unrelated male. Cora appeals from the trial court's order
awarding John $256,000 for spousal support payments he made after July 2005. Cora
contends the trial court erred by concluding she was cohabiting with an unrelated male,
and by "retroactively terminating [her] support." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Cora and John married in 1967 and separated in 1986. Their marriage
terminated on December 18, 1990. The 1990 judgment incorporated their MSA and
required that (1) John pay non-modifiable spousal support of $4,000 per month to Cora,
until he died, or until Cora died, remarried, and/or cohabited with an unrelated male, and
(2) Cora notify John "upon the event of her cohabitation with an un-related male."1 After
the termination of the marriage, Cora told "family and friends . . . that if she cohabitated,
she would lose her spousal support."

1 The relevant section of the judgment and agreement follows: "15. SPOUSAL
SUPPORT. Respondent [John] shall pay to Petitioner [Cora] for her support and
maintenance the sum of four thousand ($4,000.00) dollars per month, payable half on the
first day and half on the fifteenth day of each calendar month commencing June 1, 1990
and continuing each month thereafter until [Cora] dies, remarries, and/or cohabitates with
a non-related male and/or [John] dies. Said Spousal Support is non-modifiable. The
Court shall not have the jurisdiction to either increase and/or decrease the amount of
spousal support from the agreed sum of $4,000 per month. Neither party may seek an
increase and/or decrease in Spousal Support payments. Neither party may seek a
termination of Spousal Support except on grounds of [Cora's] death, remarriage, and/or
cohabitation with an un-related male. The Court shall not retain jurisdiction to terminate
spousal support except upon the grounds of [Cora's] death, remarriage, and/or
cohabitation with an un-related male. [Cora] shall notify [John] upon the event of her
cohabitation with an un-related male."

2
 In 2000, Cora began an exclusive dating relationship with Keith McLeod.
She quickly made sure he read the MSA's provision for the termination of spousal
support upon her cohabitation with an unrelated male. Throughout their relationship,
Cora and Keith shared significant resources. In 2001, she loaned him approximately
$30,000 to buy a home in Pine Mountain. He repaid that loan. They were engaged in
November 2004. Cora always wore her engagement ring.
In June 2005, Keith was hospitalized for about three weeks and diagnosed
with end stage renal failure. After his release, he received dialysis treatments three times
a week for "a few years." At the time of the proceedings below, he received just one
treatment each week. Keith always stayed with Cora in her Thousand Oaks home on the
night before his treatment. He had a key to her home, where he kept clothing and
personal property, and received his mail. Cora was the beneficiary of Keith's insurance.
On August 8, 2005, Cora and Keith purchased a boat for $210,000, as joint
tenants. Their $200,000 boat loan was secured by Cora's equity in her home. Keith made
the boat loan payments. He slept on the boat when he did not sleep at Cora's home. On
most weekends and holidays, they stayed together on the boat, for one or two nights.
Cora had "unrestricted access to the boat." They vacationed together, at Keith's expense,
and attended all family and social functions together.
In 2006, Cora acquired two rental condominiums in Port Hueneme in a tax-
free exchange for her unimproved land in Bell Canyon, plus $60,000. She paid Keith a
$60,000 finder's fee. Cora owned the condominiums "free and clear," and obtained a
joint checking account with Keith for condominium expenses and rental income. He
controlled that account and did not disburse any profits to Cora before 2011. The trial
court explicitly rejected Cora's contention that the condominiums did not generate any
profits.
Cora never notified John that she was cohabiting with Keith. John paid her
monthly spousal support through November 2010. On January 26, 2011, John filed an
order to show cause for termination of spousal support, as of July 1, 2005, the date on

3
which he alleged Cora was cohabiting with Keith.2 John further alleged Cora failed to
notify him of her cohabitation, and he was unaware of it until December 2010. He
asserted that Cora's cohabitation terminated spousal support as of July 2005, and required
her to refund all subsequent support payments. Following an evidentiary hearing, the
trial court made several findings, including the following: (1) Cora had been cohabiting
with Keith since August 1, 2005; (2) Cora was "patently deceptive" and made
"considered efforts to conceal her significant, monogamous relationships from John;" and
(3) Cora and Keith "bought the boat as a place that Keith could 'live apart' from [her] to
give the distinct appearance of living separately." The court concluded that John's
obligation to pay spousal support "terminated pursuant to the express agreement of the
parties on August 1, 2005," and John overpaid Cora $256,000 of spousal support. The
court awarded John $256,000, and reserved any issue of interest.
DISCUSSION
Cohabitation
Cora claims that she was not cohabiting with Keith because they
maintained separate residences and did not live together. We disagree.
Standard of Review
"'"A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
error." [Citations.]'" (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898
(Bower).)
The cohabitation issue presents a mixed question of law and fact that
"requires a critical consideration, in a factual context, of legal principles and their
underlying values . . . ." (Crocker National Bank v. City and County of San Francisco

2 On June 17, 2011, the court allowed John to amend his order to show cause to
allege that Cora cohabited with George McKeehan from May 1993 through 1994. The
court concluded John failed to establish that Cora was cohabiting with George.
4
(1989) 49 Cal.3d 881, 888.) Where the "pertinent inquiry requires application of
experience with human affairs, the question is predominantly factual and its
determination is reviewed under the substantial-evidence test." (Ibid.) Cohabitation is
such an issue. (See In re Marriage of Davis (2013) 220 Cal.App.4th 1109, 1118
[substantial evidence review applies to factual issue of the date of separation].)3
In deciding whether parties are cohabiting, courts consider the personal,
financial, and residential aspects of the parties' relationship.4 Cohabitation involves a
committed personal relationship, which can be sexual or romantic, or a homemaker-
companion relationship. (In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, 535;
Bower, supra, 96 Cal.App.4th at p. 901 [concerning statutory requests for modification or
termination of spousal support under former Civ. Code, § 4801.5 (Thweatt) or Fam.
Code, § 4323 (Bower)].) 5 Cohabitation also involves the sharing of significant finances
or labor. (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1299 [§ 4323].) In
Geraci, the court found ample evidence of cohabitation where a supported spouse lived
with her boyfriend, who provided her with a car and a credit card. She did not pay rent
but contributed domestic services to the household. She owed her boyfriend more than
$30,000 in back rent and other debt, to be paid when she was financially able to do so.
(Ibid.) In most cases addressing cohabitation, the residential aspect of the relationship
concerns payment for housing, with no dispute that the parties share housing. (See, e.g.,
Geraci, supra, at p. 1299.)
Cora claims she was not cohabiting with Keith because they had separate
residences which they did not share. The record belies her claim. Cora and Keith shared

3 Cora argues that a de novo standard should apply to our review, and cites In re
Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1157, which concerned the issue of
the date of separation. Based on the facts before us, we would affirm the trial court's
determination under either standard of review.
4 In resolving the cohabitation issue, the trial court relied in part on penal statues
and criminal cases which address or define cohabitation in that distinct context. We
conclude they have no application to the cohabitation issue before us.

5 All further statutory references are to the Family Code unless otherwise stated.

5
two residences, their boat and her home, and slept together four or five nights a week, for
at least a few years, starting in August 2005. Keith used Cora's home address as his, and
received mail there. They shared substantial financial benefits and responsibilities, and
attended social and family functions together. Their "affectionate, and devoted
relationship" has lasted more than 10 years. Taken together, the totality of the
circumstances of their relationship provides substantial evidence that Cora and Keith
were cohabiting in August 2005.
Retroactivity
Cora argues that the trial court violated section 3603 and misapplied section
4334 by "retroactively" terminating support, and awarding John $256,000 for support
payments he made before he filed this action. We disagree.
Standard of Review
We apply the de novo standard of review to a trial court's interpretation of a
statute. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th
911, 916.)
"'Marital settlement agreements incorporated into a dissolution judgment are
construed under the statutory rules governing the interpretations of contracts generally.'"
(In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518.) We conduct an
independent review of the agreement that is the subject of the appeal. (In re Marriage of
Smith (2007) 148 Cal.App.4th 1115, 1120.) We construe the agreement under the rules
governing the interpretation of contracts. (In re Marriage of Iberti (1997) 55 Cal.App.4th
1434, 1439 (Iberti).)
Cora relies on section 36036 in arguing that the court erroneously
terminated her support retroactively. Her reliance is misplaced. That section only applies

6 Section 3603 states as follows: "An order made pursuant to this chapter may be
modified or terminated at any time except as to an amount that accrued before the date of
the filing of the notice of motion or order to show cause to modify or terminate."

6
to support awards made while a proceeding is pending.7 Section 3603 does not apply to
the contractually based non-modifiable spousal support at issue here, which was a term of
the parties' final judgment of dissolution.
Further, the court did not terminate support "retroactively," as Cora claims.
Rather, John's obligation to pay spousal support terminated pursuant to the explicit terms
of the MSA. The MSA obligated John to pay Cora support monthly until one of several
events occurred, including her cohabitation with an unrelated male. "When the language
of the judgment incorporating the marital settlement agreement is clear, explicit, and
unequivocal, and there is no ambiguity, the court will enforce the express language."
(Iberti, supra, 55 Cal.App.4th at p. 1440.) Here, because Cora and Keith were cohabiting
on August 1, 2005, John's obligation to pay support terminated on that date, pursuant to
the MSA.
We also reject Cora's argument that the trial court erred by relying upon
section 4334 in ordering her to pay John for support payments he made before January
2011, when he filed this action. Cora first argues that her cohabitation with an unrelated
male is not a "contingency" which can terminate support within the meaning of section
4334. She is wrong. Subdivision (a) of that section provides: "If a court orders spousal
support for a contingent period of time, the obligation of the supporting party terminates
on the happening of the contingency. The court may . . . order the supported party to
notify the supporting party, or the supporting party's attorney of record, of the happening
of the contingency." Section 4334 does not expressly define contingency, or exclude any
event (including cohabitation) from operating as a contingency that terminates support.
The plain language of the MSA specifies only a few events, including Cora's cohabitation

7 Section 3600 provides: "During the pendency of any proceeding for dissolution
of marriage or for legal separation of the parties or under Division 8 (commencing with
Section 3000) (custody of children) or in any proceeding where there is at issue the
support of a minor child or a child for whom support is authorized under Section 3901 or
3910, the court may order (a) the husband or wife to pay any amount that is necessary for
the support of the wife or husband, consistent with the requirements of subdivisions (i)
and (m) of Section 4320 and Section 4325, or (b) either or both parents to pay any
amount necessary for the support of the child, as the case may be." (Italics added.)
7
with an unrelated male, that terminate spousal support. The record leaves no doubt that
Cora understood that contingency.
Cora also argues the trial court erred, or acted unfairly, in relying upon section
4334, subdivision (b), to award John the value of payments he made before he filed this
action. We disagree. Section 4334, subdivision (b), provides as follows: "If the
supported party fails to notify the supporting party, . . . of the happening of the
contingency and continues to accept spousal support payments, the supported party shall
refund payments received that accrued after the happening of the contingency . . . ."
In issuing the 1990 judgment, the court ordered Cora to notify John if she was
cohabiting with an unrelated male, as required by the MSA. Because she failed to do so,
section 4334, subdivision (b), authorized the court to order Cora to repay John for
payments she received when she was cohabiting with Keith. Despite that, Cora argues
she had no duty to notify him, because she did not believe she was cohabiting with Keith.
Cora agreed to the terms of the MSA. Her attorney participated in its preparation. The
1990 judgment and the MSA expressly required her to notify John of her cohabitation
with an unrelated male. The record contains overwhelming evidence that she was
cohabiting with Keith. Under the circumstances, the trial court reasonably concluded that
Cora's subjective belief did not excuse her failure to notify John of their cohabitation.
DISPOSTION
The judgment is affirmed. Respondent is awarded costs on appeal.
NOT TO BE PUBLISHED.

PERREN, J.
We concur:

GILBERT, P. J.

YEGAN, J.

8
 John R. Smiley, Judge

Superior Court County of Ventura

______________________________

Taylor, McCord, Praver & Cherry and Patrick G. Cherry for Appellant.
Buter, Buzard, Fishbein & Royce and Gary Fishbein for Respondent.

9