Luttrell v. Cucco

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette,
S.J.

MICHAEL ALLEN LUTTRELL
OPINION BY
v. Record No. 150770 JUSTICE WILLIAM C. MIMS
April 28, 2016
SAMANTHA MARY JO CUCCO

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether same-sex couples can “cohabit[] . . . in a relationship

analogous to a marriage” for purposes of Code § 20-109(A). The appellant also asks us to vacate

an award of attorney’s fees assessed by the circuit court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Michael Luttrell (“Luttrell”) and Samantha Cucco (“Cucco”) were married on January 6,

1992. They later separated, and Cucco filed for divorce on October 5, 2007. Subsequently, they

executed a “Property, Custody, and Support Settlement Agreement” (the “PSA”). The PSA was

affirmed, ratified, and incorporated into the final decree of divorce granted by the Circuit Court

of Fairfax County on November 6, 2008.

Pursuant to the PSA, the divorce decree ordered Luttrell to pay monthly spousal support

to Cucco for a term of eight years. However, the PSA provided further that the payments would

terminate upon

the death of either party, the remarriage of the wife, or as a result
of action by the Court taken pursuant to § 20-109 of 1950 Code of
Virginia, as amended, relative to cohabitation.

Also relevant to this appeal, the PSA contained a cost-shifting provision in the event of

an enforcement action by one of the parties. That provision states:

The parties agree that any reasonable expenses incurred by a party
in the successful enforcement of any of the provisions of [the
 PSA], or in taking action as a result of the breach of [the PSA] by
the other party, whether through litigation or other action necessary
to compel compliance herewith, or to cure such breach, shall be
borne by the defaulting party. Any such expenses incurred by a
party in the successful defense to any such action shall be borne by
the party seeking to enforce compliance. “Reasonable Expenses”
as referenced herein shall include, but not be limited to, counsel
fees, court costs, and expenses of travel.

On July 10, 2014, Luttrell filed a motion for adjustment of spousal support in the Circuit

Court of Fairfax County. In his motion, Luttrell alleged that Cucco was “engaged to be married”

and had been “cohabiting continuously” with her fiancée for at least a year. Pursuant to the PSA,

Luttrell sought a court order terminating his spousal support obligation on the basis of Cucco’s

alleged cohabitation. Luttrell also requested an order directing Cucco to refund “the equivalent

of at least one year of Spousal Support payments.”

At the hearing on Luttrell’s motion, Cucco did not dispute the allegations. Rather, she

contended that her relationship was with another woman, and therefore she was not “cohabiting”

within the meaning of Code § 20-109(A).

The circuit court reasoned that the right to marry was distinct from the question of its

authority to terminate spousal support pursuant to Code § 20-109(A). Citing the dissent in an

unpublished opinion from the Court of Appeals, the circuit court concluded that only opposite-

sex couples could cohabit for purposes of Code § 20-109(A). 1 Accordingly, the court denied

Luttrell’s motion and awarded Cucco attorney’s fees pursuant to the cost-shifting provision in

the PSA.

Luttrell appealed to the Court of Appeals, which affirmed the judgment of the circuit

court in an unpublished opinion. Luttrell v. Cucco, Record No. 1768-14-4, 2015 Va. App.

1
Brennan v. Albertson¸ Record No. 2042-11-4, 2012 Va. App. LEXIS 240, at *16-24
(July 24, 2012) (Felton, C.J., dissenting).

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LEXIS 135 (Apr. 21, 2015). As relevant to this appeal, the court began its analysis by looking to

the history of Code § 20-109, noting that “[b]efore 1997, Code § 20-109 permitted termination of

spousal support only ‘upon the death or remarriage of the spouse receiving support.’” In 1997,

the General Assembly amended Code § 20-109(A) to authorize termination of spousal support

“[u]pon 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

marriage for one year or more.” 2 Id. at *13 (citing 1997 Acts ch. 241.)

The Court of Appeals interpreted this provision in light of two cases decided five years

prior to its enactment. First, the court identified a statement from this Court’s opinion in

Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d 135, 137 (1992), which noted that

previous case law had defined “cohabit” to mean “liv[ing] together in the same house as married

persons live together, or in the manner of husband and wife.” The court also cited Frey v. Frey,

14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992), which had construed a property settlement

agreement providing for the termination of spousal support upon the former wife’s “cohabitation,

analogous to marriage, with another man.” In that context, the court held that the phrase

“cohabitation, analogous to marriage” meant “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.” Id.

2
In relevant part, Code § 20-109(A) provides:

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 . . ., the court shall terminate spousal support and
maintenance.

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 Reasoning that the General Assembly was aware of these cases when it amended Code §

20-109(A) in 1997, the Court of Appeals concluded that the legislature intended the phrase

“habitually cohabiting with another person in a relationship analogous to a marriage” to mean “a

status in which a man and a woman live together continuously . . . mutually assuming duties and

obligations normally attendant with a marital relationship.” Therefore, it affirmed the circuit

court’s order denying Luttrell’s motion for an adjustment of spousal support. After reviewing

the PSA’s cost-shifting provision, the Court of Appeals also affirmed that portion of the circuit

court’s order awarding attorney’s fees to Cucco.

II. ANALYSIS

A. Code § 20-109(A)

Under the terms of the PSA, Luttrell cannot terminate his spousal support obligation on

grounds of “cohabitation” until a court takes action pursuant to Code § 20-109. Thus, the parties

effectively incorporated the provisions of Code § 20-109 with respect to “cohabitation” into the

PSA, and agreed to be bound by the same. Accordingly, whether Luttrell can terminate his

spousal support obligation on grounds of “cohabitation” depends on whether Cucco’s

relationship with another woman can constitute “cohabitation” for purposes of Code § 20-

109(A). This presents a question of statutory interpretation.

We review questions of statutory interpretation de novo. Eberhardt v. Fairfax Cnty.

Emps. Ret. Sys., 283 Va. 190, 194, 721 S.E.2d 524, 526 (2012). “The purpose for which a

statute is enacted is of primary importance in its interpretation or construction.” Virginia Elec. &

Power Co. v. Board of Cnty. Supervisors, 226 Va. 382, 388, 309 S.E.2d 308, 311 (1983)

(internal quotation marks and citation omitted). “If a statute is subject to more than one

interpretation, we must apply the interpretation that will carry out the legislative intent behind

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the statute.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174,

178 (2007) (collecting cases).

When interpreting a statute, “[t]he general rule . . . is that the words of a statute should

receive their ordinary acceptation and significance, where such construction is consonant, and

not at variance, with the purpose of the statute.” Rountree Corp. v. Richmond, 188 Va. 701, 712,

51 S.E.2d 256, 260-61 (1949). We adhere to this rule because “[l]egislative words derive vitality

from the obvious purposes for which the statutes are enacted.” Id. at 711, 51 S.E.2d at 260.

Thus, we favor a permissible interpretation that furthers rather than obstructs the statute’s

purpose. See Virginia Elec. & Power Co., 226 Va. at 388, 309 S.E.2d 311; Norfolk So. Ry. Co.

v. Lassiter, 193 Va. 360, 364, 68 S.E.2d 641, 643 (1952) (“The statute should have a rational

construction consistent with its manifest purpose, and not one which will substantially defeat its

object.”).

We begin our analysis by observing that the language of Code § 20-109(A) is gender

neutral. The words “spouse” and “person” encompass individuals of either sex, and thus, the

provision may be understood to apply to either same-sex or opposite-sex relationships.

We next examine the relevant case law. As the Court of Appeals recognized, the 1997

amendments to Code § 20-109 occurred against a backdrop of case law interpreting property

settlement agreements that provided for termination of spousal support under certain

circumstances. In Schweider, the Court interpreted a provision in a property settlement

agreement stating that the husband’s spousal support obligation would terminate upon the

“wife’s death or remarriage.” 243 Va. at 246, 415 S.E.2d at 136. In turn, the agreement defined

“remarriage” as “the wife’s permanent cohabitation with a male as if to all appearances they

were otherwise married.” Id. In dictum, the Court stated that in another context it had defined

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“cohabit” to mean “‘liv[ing] 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 (quoting Johnson v.

Commonwealth, 152 Va. 965, 970, 146 S.E. 289, 291 (1929) (interpreting Code § 4545 (1924),

which provided the punishment for lewd and lascivious cohabitation)). We also observed that

“‘matrimonial cohabitation . . . imports the continuing condition of living together and carrying

out the mutual responsibilities of the marital relationship.’” Id. (quoting Petachenko v.

Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986) (contrasting desertion with

matrimonial cohabitation)). Turning to the facts of the case, the Court concluded that the former

wife’s relationship had the appearance of a “‘remarriage’ within the meaning and intent of the

property settlement agreement.” Id. at 250, 415 S.E.2d at 138.

In Frey, the Court of Appeals interpreted a property settlement agreement, which

provided that the husband’s spousal support obligation would terminate upon the wife’s

“cohabitation, analogous to a marriage, with another man.” 14 Va. App. at 271, 416 S.E.2d at

41. After reviewing case law from other jurisdictions, the court held that the phrase in the

parties’ property settlement agreement, “cohabitation, analogous to a marriage,” meant “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.” Id. at 275, 416

S.E.2d at 43. The court explained further that a shared residence, a degree of intimacy, some

financial support, and an assumption of duties normally associated with marriage are factors

relevant to determining whether “a relationship between parties is analogous to marriage.” Id.

Subsequent to these two decisions, the General Assembly added the language in Code §

20-109 that is at issue in the present case. See 1997 Acts ch. 241. When the legislation was

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introduced, the proposed language would have limited its application to only opposite-sex

relationships, such as those at issue in Schweider and Frey:

Upon the death, cohabitation with a person of the opposite sex, or
remarriage of the spouse receiving support, spousal support shall
terminate unless otherwise provided by stipulation or contract.

H.B. 1341, Va. Gen. Assem. (Reg. Sess. 1997) (offered Jan. 22, 1996) (new language indicated

by italics). However, the House Committee for Courts of Justice proposed an amendment in the

nature of a substitute that eliminated the prepositional phrase “of the opposite sex.”

Accordingly, proposed subsection (C) 3 provided for the termination of spousal support

upon order of the court based on clear and convincing evidence
that the spouse receiving support has been habitually cohabiting
with another person for a year or more.

H.B. 1341, Va. Gen. Assem. (Reg. Sess. 1997) (proposed on Dec. 20, 1996). Subsequently, the

Senate Committee for Courts of Justice proposed another amendment in the nature of a substitute

that adopted the gender-neutral phrase used by the House Committee, added the prepositional

phrase “in a relationship analogous to a marriage,” and reorganized the subsections. H.B. 1341,

Va. Gen. Assem. (Reg. Sess. 1997) (proposed on Feb. 10, 1997). This version of the bill was

enacted as 1997 Acts ch. 241.

By declining to modify the word “person” with the phrase “of the opposite sex,” the

General Assembly signaled its intention that “person” would include individuals of either sex.

The General Assembly clearly intended to extend the application of Code § 20-109(A) beyond

the circumstances of Schweider and Frey, both of which involved opposite-sex relationships, by

deliberately omitting “of the opposite sex” from the statute.

3
The amendment also divided Code § 20-109 into subsections.

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 The fact that same-sex marriage was not legal in Virginia in 1997 is not relevant to this

statutory analysis. As the Court of Appeals recognized in another case, “[a] relationship

‘analogous to marriage’ does not mean a ‘marriage.’” See Stroud v. Stroud, 49 Va. App. 359,

378, 641 S.E.2d 142, 151 (2007) (interpreting the phrase “cohabitation with any person . . . in a

situation analogous to marriage” in a property settlement agreement). Therefore, regardless of

the legal definition of marriage in effect when this provision was enacted, there is no textual

basis to interpret “a relationship analogous to marriage” as having precisely the same meaning as

“a marriage.” See Webster’s Third New International Dictionary 77 (1993) (defining

“analogous” as “showing an analogy or a likeness permitting one to draw an analogy: susceptible

of comparison either in general or in some specific detail . . . having a similar function but

differing in structure or origin). Rather, the analogy between the relationship in question and

marriage directs courts to the factors identified in Frey as relevant to “establish[ing] that a

relationship between parties is analogous to marriage.” See 14 Va. App. at 275, 416 S.E.2d at

43.

Those factors reflect the purpose of Code § 20-109, which attempts to maintain the

relative standing of the parties at the time of the initial award of support. Code § 20-109(A)

recognizes that an individual who has entered a committed, financially interdependent

relationship with a third person is no longer dependent upon his or her ex-spouse in the same

manner as when the agreement was executed. Therefore, it provides a mechanism designed to

prevent one former spouse from obtaining a windfall at the expense of the other after the

recipient has entered such a relationship. See Frey, 14 Va. App. at 275, 416 S.E.2d at 43 (noting

that a shared residence and financial support are two factors relevant to determining whether a

relationship is analogous to marriage).

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 A contrary interpretation of Code § 20-109(A) would obstruct this purpose in the case of

a receiving spouse who subsequently cohabits with a same-sex partner. Indeed, it would produce

the following untenable result: two identically-situated individuals with identical spousal

support awards would receive opposite treatment if one cohabits in a same-sex relationship and

the other cohabits in an opposite-sex relationship. The individual in the same-sex relationship

would continue to receive support while the individual in the opposite-sex relationship would

not. We cannot conclude that the General Assembly intended such a result.

Accordingly, the Court of Appeals erred when it concluded that the General Assembly

intended the phrase “habitually cohabiting with another person in a relationship analogous to a

marriage” to refer only to opposite-sex relationships.

B. Attorney’s Fees

The circuit court awarded Cucco attorney’s fees pursuant to the PSA, which states that

“[a]ny [reasonable] expenses incurred by a party in the successful defense to any [enforcement]

action shall be borne by the party seeking to enforce compliance.” The Court of Appeals

affirmed that award because Luttrell had filed a motion to adjust spousal support, which the court

found was an attempt to enforce the PSA, and because it concluded that Cucco had prevailed on

her defense to the motion. As we conclude that same-sex couples can cohabit for purposes of

Code § 20-109(A), we find that Cucco has not prevailed on her defense to the motion at this

time. Accordingly, we will vacate the circuit court’s award of attorney’s fees.

III. CONCLUSION

For the reasons stated, we find that the Court of Appeals erred when it concluded that

same-sex couples cannot “cohabit” for purposes of Code § 20-109(A). Therefore, we reverse the

judgment of the Court of Appeals and vacate the award of attorney’s fees. We remand the case

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to the Court of Appeals with direction to remand the case to the circuit court for an evidentiary

hearing consistent with this opinion to determine whether Cucco cohabited with her fiancée

within the meaning of Code § 20-109(A), and for reconsideration of attorney’s fees pursuant to

the PSA at that time.

Reversed, vacated and remanded.

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