COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia
FLAVIA DIAZ de TANGER MEMORANDUM OPINION * BY v. Record No. 2017-00-3 JUDGES SAM W. COLEMAN III AUGUST 7, 2001 WILLIAM HENRY TANGER, III
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Clifford R. Weckstein, Judge
Flavia Diaz de Tanger, pro se.
Harwell M. Darby, Jr. (Glenn, Feldmann, Darby & Goodlatte, on brief), for appellee.
In this domestic relations appeal, we decide whether the
trial judge erred by terminating the spousal support of Flavia
Diaz de Tanger, appellant, pursuant to Code § 20-109(A) for
cohabiting in a relationship analogous to marriage. The trial
judge found that appellant was and had been habitually cohabiting
with another person in a relationship analogous to a marriage for
one year or more "since July 1, 1997." Appellant contends that
the trial judge erred by finding that the relationship was
analogous to marriage and in terminating her spousal support
because termination was unconscionable. She also asserts that the
trial judge erred in failing to accept into evidence certain
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. documents she proffered. Finding no error, we affirm the trial
judge's decision.
Appellant and William Henry Tanger, III, appellee, were
divorced in 1981. The parties did not enter into a property
settlement or other separation agreement that would have affected
spousal support. By final decree dated November 21, 1996, the
trial judge awarded appellant spousal support of $700 per month.
In July 1999, appellee filed a motion to terminate spousal support
on the ground that appellant had been cohabiting for a period of
at least one year commencing on or after July 1, 1997 with a Mr.
Pringle in a relationship analogous to marriage. See Code
§ 20-109(A). Appellant filed a motion to increase the amount of
monthly spousal support.
On February 25, 2000, the trial judge heard evidence on the
motions which resulted in the trial judge's termination of spousal
support. Appellant contends that the evidence fails to prove that
her relationship with Pringle was cohabitation analogous to a
marriage. At the hearing, the evidence proved that appellant has
lived in Pringle's residence since 1995. Appellant's adult
daughter also resided in Pringle's home for a period of two or
three years. Appellant pays Pringle no rent, and she pays no
utility bills. Appellant testified she resides in an apartment
within Pringle's house that is separate from Pringle's living
quarters. Pringle and appellant testified they do not have a
sexual relationship, and they do not sleep together.
- 2 - Appellant and Pringle represented that their relationship is
solely a business arrangement. Pringle, who owns his business,
stated that appellant runs errands for the business and performs
secretarial tasks for him. He stated that appellant also
corresponds with companies he deals with in Mexico because she
speaks fluent Spanish. Pringle testified that appellant is
compensated for her services by living rent-free in his residence
and by having limited use of one of his cars. Pringle stated that
he typically rented the apartment occupied by appellant for $400
per month. Pringle's business also pays appellant's health
insurance.
Appellant uses credit cards issued in Pringle's name to
purchase food, to pay for her dental care, and to pay for gasoline
when she drives Pringle's car. Appellant also pays her athletic
club membership with Pringle's credit card. A dog belonging to
appellant's daughter was housed at Pringle's residence for about
five years, including several years after the daughter had left
the residence. Appellant paid the dog's veterinary bills with
Pringle's credit card.
Pringle testified that appellant is not required to obtain
his permission before using his credit cards, but she must
reimburse him for the items she purchases with his credit card.
Appellant testified she reimburses Pringle in cash for the use of
his credit cards, but she had no records to verify these payments.
- 3 - Appellant and Pringle testified they occasionally eat meals
together and have traveled together to Mexico where they stayed
with appellant's family. Appellant accompanied Pringle to visit
his father after the father had a stroke. Pringle accompanied
appellant to visit her daughter in Connecticut when the daughter
was recovering from an accident. Appellant and Pringle have
traveled together to Europe several times. They testified that
these trips were business trips during which they attended trade
shows related to Pringle's business.
Appellant testified she does not cook or clean for Pringle.
She does not launder his clothing, and she pays for her own food.
The trial judge did not believe the testimony of appellant
and Pringle that their relationship was "purely and solely a
business relationship." The trial judge found that "clear and
convincing evidence" proved that appellant and Pringle "have
habitually been cohabiting with one another in a relationship
analogous to marriage for one year or more commencing on or after
July 1, 1997." The trial judge stated that he specifically relied
on the appearance and demeanor of the witnesses while they
testified in making this finding. The trial judge also stated
that, in making his decision, he considered such facts as:
appellant's daughter residing at Pringle's residence for a period
of time; appellant's and Pringle's visits to each other's
families; Pringle providing long term care for appellant's
daughter's dog; and the "extraordinary implausibility of the
- 4 - proposition" that appellant reimbursed Pringle solely in cash
while keeping no business records concerning the transactions.
The trial judge found that the lack of a sexual relationship was
"nearly irrelevant" to the question of whether the cohabitation
was analogous to a marriage.
At the conclusion of the February 25, 2000 hearing, the trial
judge reserved his ruling on the issue of whether spousal support
would be decreased or terminated. On May 12, 2000, the trial
judge heard evidence on the issue of whether termination of
appellant's spousal support would be unconscionable. 1
Appellee testified he earns $380 per week, and his monthly
net income is $529. Appellee's adjusted income for calendar year
1999 was about $20,000. Appellee stated that his net worth is
about $100,000, and he presented evidence that his monthly living
expenses reflected a shortfall of several thousand dollars.
Appellant, who has a college degree in art history and
Spanish literature, testified her income and expenses had not
changed since 1996. In the past, appellant had been a Spanish
language court interpreter, but she no longer works as a court
interpreter because she failed to pass the certification test.
1 The parties agreed to proceed under the terms of Code § 20-109(A) as amended and approved by the Governor on April 2, 2000. The General Assembly, in 2000, amended Code § 20-109(A) by substituting "shall" for "may decrease or" and by substituting "be unconscionable" for "constitute a manifest injustice." See 2000 Va. Acts, ch. 218.
- 5 - Appellant stated she has no money in the bank, owns no real
estate, and holds no credit cards. She testified that Pringle
does not give her financial support, and she has been unable to
find employment other than with Pringle. Appellant admitted that
subsequent to 1996 she has made only four telephone calls in
search for employment and those were to friends. Appellant
testified that Pringle no longer allowed her to use his credit
cards. Otherwise, she continued to live at Pringle's home under
the same arrangement.
The trial judge found that appellant failed to meet her
burden of proving that termination of her spousal support would be
unconscionable.
At the May 12, 2000 hearing, appellant proffered a binder of
documents that she asserted were relevant to the issue of
unconscionability. The trial judge refused to admit the documents
into evidence, ruling that all documents were either already in
the record or were irrelevant to unconscionability. Appellant
appeals the trial judge's rulings.
TERMINATION OF SPOUSAL SUPPORT
Code § 20-109(A) provides:
Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually
- 6 - cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.
Appellant contended on brief and at oral argument that this
Court's panel decision in Rubio v. Rubio, 33 Va. App. 74, 531
S.E.2d 612, reh'g en banc granted, mandate stayed, 33 Va. App.
440, 534 S.E.2d 336 (2000), controls this case. The panel held
in Rubio that Code § 20-109 did not apply retroactively to
spousal support decrees entered before July 1, 1998. Id. at 77,
531 S.E.2d at 613-14. The panel decision in Rubio was stayed
pending an en banc decision. Rubio has been decided en banc and
that decision vacated the panel's decision upon which appellant
relies. See Rubio v. Rubio, ___ Va. App. ___, ___, ___ S.E.2d
___, ___ (2001) (en banc). Furthermore, the en banc holding in
Rubio does not control or affect our decision in the present
case since no spousal support agreement exists between the
parties here. The Rubio decision held that the terms of the
spousal support agreement controlled so that the cohabitation
disqualifier in Code § 20-109(A) did not apply. Id.
In 1998, the legislature "amended and reenacted" Code § 20-109(A), adding the words "the amount or duration of any" to the first sentence. See 1998 Va. Acts, ch. 604. The Act specifically provided "[t]hat Section 20-109 of the Code of Virginia [is]
- 7 - . . . reenacted as follows." Id. It further provided "[t]hat the provisions of this Act shall apply only to suits for initial spousal support orders filed on or after July 1, 1998, and suits for modification of spousal support orders arising from suits for initial support orders filed on or after July 1, 1998." Id.
Rubio, ___ Va. App. at ___, ___ S.E.2d at ___.
Our decision is controlled by the effect of Code
§ 20-109(A) upon support decrees entered before July 1, 1998,
the effective date of the cohabitation disqualification where no
spousal support agreement exists between the parties.
Significantly, the General Assembly in its 2001 session, as a
result of the panel's decision in Rubio, passed Senate Bill 1014
and House Bill 2215, amending and reenacting Code § 20-109. See
2001 Va. Acts, chs. 725 and 740. The Governor signed these
bills into law on March 26, 2001. Although those bills were
enacted during the pendency of the present suit, they did not
change the provisions of Code § 20-109 as applied to this case.
Rather, the 2001 Acts of the General Assembly were clarifying
and declaratory of existing law.
Furthermore, by 2001 Va. Acts, ch. 720, the General
Assembly provided:
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section number 1-13.39:3 as follows:
- 8 - § 1-13.39:3. Statutory construction of titles and enactment clauses.
Whenever the word "reenacted" is used in the title or enactment of a bill or act of assembly, it shall mean that the changes enacted to a section of the code of Virginia or an act of assembly are in addition to the existing substantive provision in that section or act, and are effective prospectively unless the bill expressly provides that such changes are effective retroactively on a specified date.
The provisions of this section are declaratory of existing public policy and law.
2. That the provisions of this act are intended to reverse the ruling in Rubio v. Rubio, 33 Va. App. 74, 531 S.E.2d 612 (2000).
3. That an emergency exists and this act is in force from its passage.
(Emphasis added). This Act states plainly the legislative
intent that the limitation upon application set forth in 1998
Va. Acts, ch. 604, addressed only the amendments effected by
that Act and, with respect to Code § 20-109(A) applied only to
the language "the amount or duration of any" that was added to
the first sentence.
Moreover, both chapters 725 and 740 of the Acts of Assembly
contain the following sentence after the last line of
Code § 20-109(A)(ii): "The provisions of this subsection shall
apply to all orders and decrees for spousal support, regardless
of the date of the suit for initial setting of support, the date
of entry of any such order or decree, or the date of any
- 9 - petition for modification of support." Therefore, the
legislature's latest revision of Code § 20-109 controls this
case. The statute makes clear that its provisions including the
clarification that no time limitation relates to the forfeiture
provision for "cohabitation analogous to a marriage," apply to
this case.
Under familiar principles, "we construe the evidence in the
light most favorable to [appellee], 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).
We find that the trial judge did not err in terminating
appellant's spousal support award.
[T]he phrase, "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. 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."
Frey v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992)
(citations omitted). Cohabitation is also defined as "[t]he
fact or state of living together, esp. as partners in life, usu.
with the suggestion of sexual relations." Black's Law
Dictionary 254 (7th ed. 1999).
- 10 - Factors relevant to the determination of whether
cohabitation has been proved include: common residence,
intimate or romantic involvement, the provision of financial
support, and the continuity and duration of a relationship.
Pellegrin v. Pellegrin, 31 Va. App. 753, 764-66, 525 S.E.2d 611,
616-17 (2000). "[A]lthough the enunciated factors provide
discrete categories of evidence relevant to the issue, no one
factor is determinative." Id. at 766, 525 S.E.2d at 617. "[I]t
is within the province of the trial [judge] to determine what
weight to accord each of the factors relevant to the matter
presented." Id.
Credible evidence supported the trial judge's finding that
appellant cohabited with Pringle in a relationship analogous to
marriage for one year commencing on or after July 1, 1997.
Appellant has lived in Pringle's residence since 1995. She
receives in-kind rent, ostensibly in exchange for performing
secretarial duties for Pringle. She makes no utility payments.
Appellant's daughter and dog also resided in Pringle's house for
several years. Appellant used Pringle's credit cards and his
car for her personal use. Although she stated that she
reimbursed Pringle in cash when she used his credit cards, she
produced no records of those payments. Appellant and Pringle
traveled together to visit their families. In addition,
appellant and Pringle traveled together to Europe on several
occasions. Although appellant and Pringle testified that those
- 11 - trips were for business purposes only, the trial judge did not
accept their testimony that their relationship was "purely and
solely a business relationship." "The credibility of the
witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the opportunity to see and
hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
"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." Penrod v. Penrod, 29 Va. App. 96,
101, 510 S.E.2d 244, 246 (1999). Viewed as a whole, the
evidence supports the trial judge's finding that appellant and
Pringle cohabited in a relationship analogous to marriage.
Furthermore, appellant failed to prove that termination of
spousal support was unconscionable. "[U]nconscionability is
. . . concerned with the intrinsic fairness . . . in relation to
all attendant circumstances, including the relationship and
duties between the parties." Derby v. Derby, 8 Va. App. 19, 28,
378 S.E.2d 74, 78 (1989) (interpreting validity of a separation
agreement).
The trial judge heard evidence of the parties' financial
needs and financial circumstances. Although appellant asserts
she can find no employment other than with Pringle, she has a
college degree and is bilingual. She also admitted that she had
- 12 - made only four telephone calls to friends in her search for
other employment. Furthermore, under her arrangement with
Pringle, appellant pays no rent, no utilities, no car payments,
and no real estate taxes. Pringle's business pays for her
health insurance coverage. In other words, appellant has few
living expenses.
Moreover, appellee represented that his net monthly income
was $529 and his adjusted income for the year 1999 was about
$20,000. Based upon the evidence presented, particularly in
light of appellee's ability to pay in relation to appellant's
financial needs, the trial judge did not err in ruling that the
termination of spousal support was not unconscionable.
PROFFERED EVIDENCE
At the May 12, 2000 hearing, appellant proffered documents
that she contends address the issue of whether the termination
of her spousal support is unconscionable. Appellant's counsel
conceded at the time of the proffer that "the majority of it is
information that [appellant] has gone back and gleaned from the
record . . . ."
The first document in the binder is a biographical history
of appellant's family background and a history of her
relationship with appellee. In general, other materials in the
binder include marriage documents, and pleadings and depositions
from other lawsuits between the parties and lawsuits involving
one of the parties. The binder also includes flyers from trade
- 13 - shows, miscellaneous newspaper articles, and miscellaneous
correspondence.
The trial judge ruled that, to the extent that the
documents had previously been made a part of the record, those
documents were "a part of the record already." Furthermore, the
trial judge ruled that the materials were "far afield about
matters that have gone on over the last thirty years or so."
Concerning appellant's biographical narrative, the trial judge
stated, "[U]pon a cursory look at this narrative, [it] seem[s]
not to have anything to do with economic impact and seem[s] to
be set forth in an effort to incline the reader against
[appellee] and in favor of [appellant] . . . ." The trial judge
ruled that if he admitted the proffered materials into evidence,
appellee would then be allowed to submit materials in rebuttal,
and those materials would be "just as far afield and just as
irrelevant as the initial material."
Evidence ordinarily is admissible if it "is both material--
tending to prove a matter that is properly at issue in the
case--and relevant--tending to establish the proposition for
which it is offered." Johnson v. Commonwealth, 2 Va. App. 598,
601, 347 S.E.2d 163, 165 (1986). We find that the materials are
either irrelevant and immaterial to the issue of
unconscionability, or are cumulative of evidence properly before
the trial judge from the testimony of the witnesses and from
documents previously made a part of the record. Therefore, the
- 14 - trial judge did not err in refusing to admit the proffered
materials into evidence.
Accordingly, the judgment of the trial judge is affirmed.
Affirmed.
- 15 -