Hong Ki Min v. Sheila Ann Allen Min

• Court: Court of Appeals of Virginia
• Decided: November 12, 1996
• Docket: 1150963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

HONG KI MIN MEMORANDUM OPINION * v. Record No. 1150-96-3 PER CURIAM NOVEMBER 12, 1996 SHEILA ANN ALLEN MIN

FROM THE CIRCUIT COURT OF ROANOKE COUNTY G. O. Clemens, Judge

(Richard E. Viar; Dodson, Pence & Viar, on briefs), for appellant. (James R. Swanson; Phillips & Swanson, on brief), for appellee.

Hong Ki Min (husband) appeals the decision of the circuit

court finding that Sheila Ann Allen Min (wife) was not cohabiting

with another man. Husband contends that the court erred by (1)

relying on a single factor, financial support, to determine if

wife was cohabitating with an unrelated man, and (2) finding that

wife's interaction with the man was attributable to their

children's friendship. Upon reviewing the record and briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

Rule 5A:27. Permanent Cohabitation

Under the terms of the parties' separation agreement,

husband's obligation to pay spousal support terminates upon, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. among other events, "cohabitation by wife with an unrelated male

on a permanent basis." The Virginia Supreme Court has ruled 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.'" Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d

135, 137 (1992) (citation omitted). "While 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 the marital relationship.'" Id. (citation omitted).

Husband alleged that wife was cohabitating with Robert

Kopstein. Numerous witnesses, including husband, wife, the

parties' children, Kopstein, and the private investigator hired

by husband, testified at the hearing. Both wife and Kopstein

testified that they were dating, but had not discussed marriage

and had no plans to marry. No one testified that wife and

Kopstein were living together, although Kopstein spent the night

at wife's home periodically. Although wife and Kopstein shared

some activities, they maintained separate residences, had

separate friends and separate activities. Wife testified

Kopstein did not have, and never had been given, a key to her

residence. Kopstein admitted he sometimes parked his vehicles

overnight at wife's home. He testified that he traveled

extensively for work and occasionally left his vehicles at wife's

2 residence because of a history of break-ins and car damage at his

apartment complex. Husband testified that he often walked by

Kopstein's apartment between 10:00 and 11:00 at night and that he

saw lights on only two times. Husband also testified that he had

not seen Kopstein's cars in the complex's parking lot since July

1995.

"The credibility of the witnesses is within the exclusive

province of the finder of fact because it uniquely has the

opportunity to see and hear the witnesses testify and weigh their

credibility based upon their appearance, demeanor and manner of

testifying." Estes v. Commonwealth, 8 Va. App. 520, 524, 382

S.E.2d 491, 493 (1989). The trial court believed the testimony

of wife and Kopstein, noting that there was no evidence that wife

shared financial support or living expenses with Kopstein or that

they were holding themselves out as husband and wife. While they

admitted having a sexual relationship, we cannot say the trial

court was plainly wrong in ruling that husband failed to

establish that wife's new relationship amounted to permanent

cohabitation. Alleged Error in Factual Finding

Husband contends that the record does not support the trial

court's finding that "much of the time [wife] and Mr. Kopstein

spent together could be attributable to their involvement with

their children and the friendship between their children." The

parties' daughter, Katherine, testified that she was friends with

3 Rebecca Kopstein, who lived with Kopstein's ex-wife. Rebecca

regularly visited Katherine at home, even when Kopstein was not

there. Wife testified that the girls were friends and that she

spoke with Kopstein's ex-wife to arrange Rebecca's overnight

visits. The evidence established that wife and Kopstein took the

children with them on several joint vacations.

Based upon this evidence, we cannot say that the trial

court's finding was clearly erroneous. Moreover, that finding,

even if erroneous, would not affect the court's finding that wife

was not permanently cohabitating with Kopstein. Accordingly, the decision of the circuit court is summarily

affirmed.