Peter Donald Lommen v. Shannon Nettles Lommen ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Decker and Senior Judge Felton
UNPUBLISHED
PETER DONALD LOMMEN
MEMORANDUM OPINION*
v. Record No. 0964-15-1 PER CURIAM
DECEMBER 1, 2015
SHANNON NETTLES LOMMEN
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
Robert H. Sandwich, Jr., Judge
(Ashli B. Pack; Crook & Pack, on brief), for appellant.
(Sheera R. Herrell; Hofheimer Family Law Firm, on brief), for
appellee.
Peter Donald Lommen (husband) appeals an order denying his motion to amend spousal
support. Husband argues that the trial court erred by (1) denying his motion to terminate spousal
support because Shannon Nettles Lommen (wife) “has habitually cohabited with her paramour for a
period exceeding one year”; and (2) finding that the “agreement signed by these parties is a contract
which sufficiently defines the events that will terminate spousal support, therefore precluding the
application” of Code § 20-109(A). 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. See Rule 5A:27.
BACKGROUND
Prior to their divorce, the parties entered into a property settlement agreement that
husband drafted. The agreement stated that husband was to pay $2,000 per month in spousal
support to wife until she remarried.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In October 2014, husband filed a motion to amend spousal support. He alleged that wife
was living with another man in a relationship analogous to marriage for two years and that wife
and her paramour, Bowen Craft, have a child together. Husband argued that his spousal support
obligation should terminate.
On May 1, 2015, the parties appeared before the trial court. Wife testified that she and
Craft have been in a relationship for “[a] little over three years.” They are not married. She
admitted that she and Craft are parents to a daughter born in February 2014. Wife denied that
Craft was living with them. She explained that he picks up their daughter from day care in the
afternoon and brings her to wife’s home while wife is at work. He stays until their daughter goes
to bed, and then he goes home, which is approximately thirty-five minutes away from wife’s
home. Wife testified that Craft stays overnight at her house “[p]robably four times a month”;
however, in 2013, he stayed with wife for “a couple of weeks” before the baby was born. He
does not receive mail at her house. He does not keep any personal items at her house. Wife
stated that Craft does not contribute toward her household bills, but he does pay her $800 per
month as child support, which was not ordered by the court.
After hearing the evidence and argument, the trial court found that wife and Craft were
not cohabiting, so it denied husband’s motion to amend. This appeal followed.
ANALYSIS
Assignment of error #1
Husband argues that the trial court erred in denying his motion to amend spousal support
because he contends the evidence proved that wife was habitually cohabiting with Craft for more
than one year.
Code § 20-109(A) states, in pertinent part:
Upon order of the court based upon clear and convincing evidence
that the spouse receiving support has been habitually cohabiting
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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.
The Court has delineated four factors necessary to prove that a party is cohabiting with
another person in a relationship analogous to marriage: (1) a “common residence”;
(2) “[i]ntimate or romantic involvement”; (3) “[t]he provision of financial support”; and (4) the
“[d]uration and continuity of the relationship and other indicia of permanency.” Pellegrin v.
Pellegrin, 31 Va. App. 753, 764-66, 525 S.E.2d 611, 616-17 (2000). The Court further explained
that “if two individuals do not share a common residence, they are not cohabiting.” Cranwell v.
Cranwell, 59 Va. App. 155, 162, 717 S.E.2d 797, 800 (2011).
The evidence proved that wife and Craft do not share a common residence. Craft may
stay at her house a few nights a month, but he has his own house. He does not receive mail at
wife’s house. He does not keep any personal items at her house. He does not pay her bills,
groceries, or utilities; however, he voluntarily provides her with $800 per month for child
support for their daughter. The trial court concluded that, based on the evidence presented,
husband did not prove that wife was cohabiting with Craft. Therefore, wife and Craft were not
engaged in a relationship analogous to marriage.
Considering the record, the trial court did not err in denying husband’s motion to amend
spousal support.
Assignment of error #2
Husband argues that the trial court erred in finding that the “agreement signed by these
parties is a contract which sufficiently defines the events that will terminate spousal support,
therefore precluding the application” of Code § 20-109(A). Husband raises this issue for the first
time on appeal. We “will not consider an argument on appeal which was not presented to the
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trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see
Rule 5A:18.
Attorney’s fees and costs
Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). On consideration
of the record before us, we deny her request for an award of attorney’s fees and costs she
incurred on appeal.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed.1 Rule 5A:27.
Affirmed.
1
On September 24, 2015, wife filed a motion to dismiss the appeal and argued that
husband failed to comply with Rules 5A:20(e) and 5A:25(d). On October 8, 2015, husband filed
a response thereto. We deny wife’s motion to dismiss.
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