Virginia Family Law Appeals

Boyfriend spending the night once or twice a week does not constitute cohabitation that would terminate alimony -- Harris v. Harris

Harris v. Harris, Va. App. unpublished (11/13/2012)

The husband appeals an order of the trial court denying his motion to modify spousal and child support. Husband alleged that his 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). On appeal, husband assigns the following errors. The trial court erred by 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, 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 the trial court erred by permitting wife’s lay witnesses to give opinion testimony regarding the ultimate issue of fact. The court addressed the husband's first two assignments of error simultaneously because they are closely related. 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) 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.” “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.”  The parties’ daughter, who lived with wife, 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. The trial court concluded that husband had failed to prove, by clear and convincing evidence, that wife was cohabiting with her boyfriend. The trial court expressly found, “I don’t think they ever established a common residence.” 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.” Therefore, there was no error in trial court’s finding that appellant did not prove by clear and convincing evidence that appellee was cohabiting with her boyfriend; appellant’s issue regarding lay opinion testimony waived under Rule 5A:20(e). 

Living under the same roof in separate rooms isn't cohabitation, if you handle your finances like roommates, not a couple

Tolley v. Tolley, 2009 Va. App. Unpublished (09/29/2009) 
The husband and wife divorced in 2006. In their divorce decree, the husband needed to pay the wife $1,200 spousal support per month for an unidentified period of time. However, the decree stated that the spousal support would be terminated at the event of either of the party's death, if the wife remarried or if the wife cohabited “with a member of the opposite sex in a relationship analogous to a marriage.” Two years later the ex-husband filed a petition that the wife was cohabiting with another man, and he sought to terminate the spousal support. The court denied his petition stating that the evidence established that wife’s living arrangements created only the “perception” of cohabitation. On Mr. Tolley's appeal, evidence that his ex-wife suffered from bipolar manic depression and was rendered disabled made her lose her apartment. She then moved into a trailer with her boyfriend, where they occupied separate bedrooms and bathrooms. The ex-wife would write checks to pay for boyfriend’s bills because he did not have a bank account. Then the boyfriend would give ex-wife money to cover the amount of the checks she wrote for his bills. The ex-wife would occasionally drive boyfriend’s vehicle.  The court "conclude[s] that the trial court did not err in finding that the evidence failed to show that wife and Allmond [boyfriend] “mutually assumed the duties and obligations normally associated with a marriage.” Id. at 767, 525 S.E.2d at 618. See Frey v. Frey, 14 "Other than wife’s payment of rent to Allmond to share living space in his trailer home, and using cash given to her by Allmond to pay some of his bills from her checking account, Allmond and wife did not support each other financially. The fact that each benefited financially from that financial arrangement did not establish that they were living together in a relationship analogous to marriage. They did not own property together. Allmond’s name was not on wife’s bank account." No error in trial court’s finding that the evidence presented at trial did not prove appellee was cohabitating with another in a relationship analogous to marriage in violation of the parties’ divorce decree.

 

Constitution doesn't require expanding parenthood & marriage until they lose all meaning

The Court of Appeals refuses to retroactively change the law to make all artificially-conceived children of gay couples legally be the children of both partners, saying that doing so would effectively destroy the exclusively parental rights which the appellant is seeking equal access to, and the distinctive value and meaning of marriage which the U.S. Supreme Court gave equal access to in Obergefell v. Hodges.

In Hawkins v. Grese, a cohabiting lesbian couple decided to have a child together, and one of them was artificially inseminated and gave birth. They did not do an adoption to formalize the other's legal status as a parent, and they never married. They raised the child together until their relationship ended in 2014. They informally shared custody for another two years, then the biological mother cut off the child's  contact with the other, who then filed for custody and visitation. The juvenile court awarded joint physical custody, finding that removing one parent from the child's life was harmful to the child and caused behavioral problems.

On a de novo appeal, the Circuit Court found that while everyone involved agreed that Hawkins had standing to contest custody -- as a "person with a legitimate interest" if not as a parent -- she did not overcome the presumption favoring parents over non-parents, though it expressed "grave concern that separation from Hawkins "would cause [the child] continued harm." It did grant her visitation. Hawkins appealed to the Court of Appeals, claiming that it was unconstitutional to consider her a non-parent, and that “non-biological parents in planned families comprising same-sex couples and their children are in fact parents.” 

As for current Virginia law, looking at various "areas within the Code of Virginia where parent is used, it is clear that the term 'parent' contemplates a relationship to a child based upon either the contribution of genetic material through biological insemination or by means of legal adoption. For example, the Code provides that parentage may be established by 'scientifically reliable genetic tests,' '[a] voluntary written statement of the father and mother made under oath acknowledging paternity,' or 'proof of lawful adoption.'” And the very statute that gives standing to people who are not parents, but have acted like parents in some ways, Code § 20-124.1, thus makes clear that they are not considered parents. So

Where custody disputes are concerned, the term “parent” is a relationship to a child only through either biological procreation or legal adoption. This ... is also consistent with the Commonwealth’s refusal to adopt wider parental definitions through other legal constructions such as the de facto or psychological parent doctrines ...

But is this constitutional, as applied to this family? The standard of review is rational-basis, either for a violation of parental rights or for sexual orientation discrimination, the Court of Appeals says.

First, the definition of parent does not discriminate between same-sex and opposite-sex couples. It could apply to a heterosexual couple who used artificial insemination and did not marry. 

The relevant characteristics which classify here are entirely rational—people are considered parents on either biological or adoptive grounds, parties without these qualities retain a fair legal method to intervene if a parent - 10 - is unfit. Further, “[a] classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’” ...

In Obergefell, the Supreme Court held only that same-sex marriage was a constitutionally protected right. ... , the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre-Obergefell, different-sex marriages did not automatically result in the spouses becoming legal parents of each other’s children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation. 

Hawkins suggests that the “special facts and circumstances,” of this case provide an avenue for carving out an exception in this admittedly exceptional case. However, were we to do so, it is clear to us that the constitutional presumption of parental fitness would begin the process of suffering a death by a thousand cuts.

We certainly acknowledge that society has evolved new family structures while simultaneously concluding that qualitatively and quantitatively assessing which among a kaleidoscope of those structures should be given legal recognition is more properly the province of the people’s representatives in the General Assembly rather than the courts and Obergefell does not require a different conclusion.5 Were we to adopt the “know it when we see it,” “special circumstances” definition of parentage urged on us by Hawkins, it would open a Pandora’s box of unintended consequences to hold that a legal parent-child relationship is created simply by virtue of such factors as the amount of time a child spends with, or the strength of an emotional bond that exists between, another living in the same household. It is not hard to imagine profound consequences for society and the courts if a parent knows that an ex-wife, ex-husband, ex-boyfriend, ex-girlfriend, former nanny, au pair or indeed virtually anyone not related to their child through biology or legal adoption, can be placed on equal footing as a biological or adoptive parent solely through a significant emotional bond with the child. 

Much of the Obergefell language Hawkins cites is aspirational, seeking normality for same-sex families. It would be ironic for us to hold that the very decision expressing these aspirations became a tool for the erosion of the object of its aspiration—a family structure based upon marriage. The logical fallacy of this approach is apparent as well, if restricting marriage to opposite sex couples was unconstitutional because it denied same-sex couples the “constellation of benefits” heterosexual couples received, it could not possibly also then require the redefinition of every star in that constellation.

Also, Hawkins is implicitly asking the court to treat her as if she had been married to the mother. But although this couple was not allowed to marry under Virginia law at the time, there was no evidence that that was the only reason they did not marry, i.e., that they otherwise would have married. "How retroactivity applies to the 'constellation of rights' discovered in Obergefell is a question which has not yet been answered, nevertheless, this principle of retroactivity does not license this Court to engage in forensic retrospective marriage construction." 

Hawkins also claimed it was unconstitutional to deprive the child of the right to be raised and nurtured by both parents. However, generally only a parent has standing to defend a child's constitutional rights, and exceptions that give third parties such standing, to pursue a child's constitutional rights against the parents' will, are granted very rarely and reluctantly, usually when a child is being denied medical care, the Court notes. And sometimes, no one, including parents, is allowed to assert constitutional claims on a child's behalf.

The Court also upholds the finding that the presumption in favor of parents was not overcome. "This presumption favoring the parent is a strong one, and can only be rebutted by establishing certain factors by clear and convincing evidence, including “(1) parental unfitness . . . ; (2) a previous order of divestiture, . . . ; (3) voluntary relinquishment, . . . ; and (4) abandonment, . . . [and (5)] . . . a finding of ‘special facts and circumstances . . . constituting an extraordinary reason for taking a child from - 18 - its parent, or parents.’” Bailes v. Sours (1986). The harm to the child from having only visitation with Hawkins, instead of 50-50 or sole custody, does not compare with the harm in Bailes, where the natural mother was a virtual stranger to the child. And even if "psychological evidence shows that harm will necessarily flow from the severance of the relationship between herself and B.G.," "such severance is not a necessary outcome". 

Hawkins v. Grese, Va. Ct. App. 2/13/18, citing the factually similar case of Stadter v. Siperko, 52 Va. App. 81, 661 S.E.2d 494 (2008).

Arguments preserved for appeal without formal objection

In Coalson v. Coalson, unpublished, 7/21/15, about the required proof of cohabitation in order to terminate alimony (see case note posted on this blog on 7/31/15) the Court of Appeals also says:

Code § 8.01-384, however, provides that "[f]ormal exceptions to rulings or orders of the court shall be unnecessary . . . . [I]t shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor."

In the present case, when discussing appellee’s motion to strike, appellant argued to the trial court that it should deny appellee’s motion to strike because appellee and Aliff “shar[ed] one residence” and had “an intimate, romantic” relationship. Additionally, appellant pointed to the facts that Aliff “has a key,” “has . . . a section in the closet for his clothes and shoes,” “buys groceries,” “vacuums, . . . does dishes, . . . cooks, . . . pays for meals,” and “does chores.” In concluding, appellant argued that appellee’s motion to strike should be denied because appellee was trying to “get around [Code § 20-109 by] say[ing] it’s not . . . cohabit[ation] – or it’s not a relationship analogous to marriage . . . .”

Accordingly, because appellant made known the action that he desired the trial court to take and the reasons therefor, the issue is preserved for appeal under Code § 8.01-384 despite the lack of a formal objection. 

The governing rule is stated as:

Rule 5A:18 provides, in relevant part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). 

“Under settled principles, the ‘same argument must have been raised, with specificity, at trial before it can be considered on appeal.’” Johnson v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004)). “‘Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.’” Id. (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)). 

 

No cohabitation where live-in boyfriend had another home

Virginia's Court of Appeals upheld a trial court's refusal to terminate alimony based on cohabitation in a case where the boyfriend in an exclusive, romantic relationship, does the following at the ex-wife's house:

• Spends 4 or 5 nights a week, according to the ex-wife
• Parked his truck long-term while awaiting repair
• Spent family holidays
• Pays some expenses
• Has a key
• Has a part of the closet for his clothes
• Keeps clothes, shoes and hygiene items there when he's there
• Buy groceries
• Cooks, does dishes, vacuums, mows, does trash, does his laundry, and other chores
• Stores ten boxes of his stuff in her garage
• Never was seen carrying luggage when leaving or arriving

The couple also testified that they vacationed together and visit each other's families.

But:

• Ex-wife testified that he lives with his son and another roommate
• No evidence that he keeps personal items necessary for daily living, such as toiletries, there, when not spending the night.

Therefore, the evidence "does not establish that wife's house was the boyfriend's primary residence," nor that they "shared a common residence". Therefore, the ex-husband did not prove cohabitation "in a relationship analogous to marriage" and his motion to terminate alimony was properly denied.

Coalson v. Coalson, unpublished, 7/21/15

Terminating cohabitator's alimony requires court filing, can't be retroactive to before filing

 Alimony can terminate when the payor proves the payee has habitually cohabited “in a relationship analogous to marriage” for a year, under Va. Code §20-109(A) and the identical language widely used in Separation Agreements, but only if, and when, the payor files a court case seeking termination, the Court of Appeals reiterates, reversing a trial court that had modified support retroactively to a date before the termination case was filed.  Va. Code §20-112 clearly forbids any retroactive modification, the Court says.

 The ex-husband argued that when he saw objectively verifiable clear and convincing evidence of the cohabitation, that evidence terminated the alimony under the terms of the Code and the Separation Agreement. But “The ‘clear and convincing’ burden is not met by convincing oneself, but  by convincing a court”, Judge AtLee writes in  Miller v. Green, unpublished (6/23/15).