Bobby W. Nelson v. Grace V Nelson ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
BOBBY W. NELSON
MEMORANDUM OPINION * BY
v. Record No. 2902-01-2 JUDGE LARRY G. ELDER
JULY 9, 2002
GRACE V. NELSON
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Thomas D. Johnston (Canfield, Shapiro, Baer,
Heller & Johnston, LLP, on briefs), for
appellant.
Robert B. Parkerson for appellee.
Bobby W. Nelson (appellant) appeals from a ruling of the
trial court denying his petition pursuant to Code § 20-109 to
terminate his obligation to pay spousal support to his former
wife, Grace V. Nelson. On appeal, he contends clear and
convincing evidence proved that his former wife cohabited with
another person, appellant's brother, in a relationship analogous
to marriage for a period in excess of one year as required by
the statute. We hold the evidence supports the trial court's
conclusion that appellant failed to prove cohabitation analogous
to marriage by clear and convincing evidence. Thus, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Appellant and Grace originally met through appellant's
brother, Bennie Lee Nelson. Appellant and Grace married in 1965
and divorced in 1980, at which time the court ordered appellant
to pay Grace spousal support. In October 1999, appellant's
brother, Bennie, moved into Grace's home in Richmond and has
resided there since that time.
Under familiar principles, "we construe the evidence in the
light most favorable to . . . the prevailing party below,
granting to [that party] all reasonable inferences fairly
deducible therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818,
448 S.E.2d 884, 885 (1994). The chancellor, as the trier of
fact, "evaluates the testimony and credibility of witnesses.
Thus, a finding of fact, made by a chancellor who has heard the
evidence ore tenus, carries the weight of a jury verdict, and
will not be disturbed unless plainly wrong or without evidence
to support it." Johnson v. Cauley, 262 Va. 40, 44, 546 S.E.2d
681, 684 (2001) (citation omitted).
Code § 20-109 provides, in relevant part, as follows:
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 commencing on or after July 1,
1997, the court shall terminate spousal
support and maintenance unless . . . the
spouse receiving support proves by a
preponderance of the evidence that
termination of such support would be
unconscionable.
Code § 20-109(A).
Evidence is clear and convincing if it "'produce[s] in the
mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt in criminal
cases.'" Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535,
540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120
N.E.2d 118, 123 (Ohio 1954)).
[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)
(quoting Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d
135, 137 (1992) (quoting Petachenko v. Petachenko, 232 Va. 296,
299, 350 S.E.2d 600, 602 (1986))) (construing phrase as used in
settlement agreement).
Factors relevant in determining whether one has proved his
or her former spouse "has been habitually cohabiting with
another person in a relationship analogous to marriage" include
(1) "whether the payee ex-spouse and that party's [alleged]
paramour . . . have established and shared a common residence";
(2) whether their relationship is intimate, which may or may not
include sexual intimacy; (3) whether the payee ex-spouse
receives financial support from the alleged paramour; and
(4) whether the "[d]uration and continuity of the relationship"
and any other relevant factors "evidence stability and
permanency." 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. A court's
findings "must be based upon evidence concerning the overall
nature of the relationship, not merely a piecemeal consideration
of individual factors." Penrod v. Penrod, 29 Va. App. 96, 101,
510 S.E.2d 244, 246 (1999). "Furthermore, it is within the
province of the trial court to determine what weight to accord
each of the factors . . . ." Pellegrin, 31 Va. App. at 766, 525
S.E.2d at 617.
Here, although Grace and Bennie shared a residence and
indicated their intention to do so indefinitely, they testified
that the purpose behind their living arrangement was so that
Grace could provide necessary assistance to Bennie, who had a
longstanding heart condition and had been diagnosed with
terminal prostate cancer, after Bennie's wife died. The
evidence established that Grace and Bennie were former
siblings-in-law and that Grace and her children had maintained a
close relationship with both Bennie and his wife following
Grace's divorce from appellant in 1980. The trial court, as the
finder of fact, accepted Grace's and Bennie's testimony that the
relationship was like that of a brother and sister, involved no
sexual intimacy, and was not "analogous to a marriage." In
light of this testimony, the trial court was entitled to
conclude the factual circumstances surrounding their
relationship did not constitute clear and convincing evidence to
the contrary.
Although Grace and Bennie resided together, Grace owned the
residence and was responsible for all utilities. Bennie paid
Grace rent and occupied a separate bedroom, except on one
occasion when the number of house guests, members of Grace's and
Bennie's family, was so large that multiple people slept in each
bedroom. Although Grace and Bennie frequently traveled together
and shared a hotel room, Grace testified that they had separate
beds when available and that, on those occasions when they
shared a king-sized bed, they did so as "brother and sister."
Further, the evidence established no commingling of
finances. Grace and Bennie maintained separate checking and
credit accounts, purchased most of their groceries separately,
and "meticulously" split the costs of all joint activities,
including eating out, entertainment and traveling.
Grace testified that her relationship with Bennie was
identical to the relationship she had had with an elderly aunt,
except that the aunt was older than Bennie and of the opposite
gender. Grace's aunt had lived with Grace for five years,
during which time her aunt paid rent and resided in the same
bedroom Bennie later occupied, not Grace's bedroom. Grace and
her aunt traveled together just as frequently as Grace and
Bennie traveled together, although Grace and her aunt did not
vacation abroad. When Grace and her aunt traveled, they shared
a hotel room just as Grace and Bennie did.
In light of all the evidence, the trial court's
determination that appellant failed to present clear and
convincing evidence that Grace and Bennie were "habitually
cohabiting . . . in a relationship analogous to a marriage" was
not plainly wrong. Therefore, we affirm the trial court's
denial of appellant's petition to terminate spousal support.
Affirmed.