Frey v. Frey, 0362-91-4

• Decision Date: 07 April 1992
• Docket Number: No. 0362-91-4,0362-91-4
• Citation: 14 Va.App. 270,416 S.E.2d 40
• Parties: Jerome W. FREY, Jr. v. Judith B. FREY. Record
• Court: Virginia Court of Appeals

Page 40

416 S.E.2d 40

14 Va.App. 270

Jerome W. FREY, Jr. v. Judith B. FREY.

Record No. 0362-91-4.

Court of Appeals of Virginia.

April 7, 1992.

James R. Hart, Fairfax (Dixon, Smith & Stahl, on briefs), for appellant.

Kathleen O'Brien, McLean (Anne E. Goodwin, Motes, Fite and O'Brien, on brief), for appellee.

Present: BARROW, COLEMAN and DUFF, JJ.

COLEMAN, Judge.

Jerome Frey, Jr. (husband) appeals the trial court's denial of his motion to terminate spousal support to Judith Frey (wife) based on the terms of their property settlement agreement. The parties agreed that the husband's obligation to pay the wife support would terminate upon "her cohabitation, analogous to a marriage, with another man." The husband contends that the court erred by interpreting the phrase, "cohabitation, analogous to a marriage," to require a showing that the wife's male companion had assumed the duty of providing financial support for the wife in order to terminate spousal support. He also contends that the trial court erred by refusing to admit parol evidence to prove what the parties intended by including that provision in the contract. Finally, he argues that the evidence was sufficient to establish that the wife's relationship with her male companion constituted "cohabitation, analogous to a marriage" so that the trial court should have terminated his duty to pay spousal support.

We reverse the decision of the trial court because it was based on the erroneous ruling that the plain meaning of the phrase "cohabitation, analogous to a marriage" necessarily requires an agreement or arrangement between the parties in regard to financial support. Financial support is but one of a number of factors which may make a living arrangement "analogous to a marriage." The trial court did not err, however, in ruling that the contested phrase is unambiguous and its meaning does not depend upon what the parties intended by the terminology. Therefore, the trial court correctly ruled that parol evidence was not admissible. Nevertheless, because the trial court held that a relationship is analogous to a marriage only if cohabiting parties assume the responsibility of providing some financial support to one another, the trial court did not resolve all factual disputes necessary to decide whether the relationship was in other respects analogous to marriage. Therefore, we remand the case for further consideration to determine the facts and to decide whether, based upon those facts, the relationship was analogous to a marriage as hereinafter defined.

The husband and wife were divorced by a final decree entered on October 20, 1989. The final decree incorporated by reference the parties' property settlement agreement, which provided, in pertinent part, that the husband's obligation to pay spousal support would terminate upon the wife's "cohabitation, analogous to a marriage, with another man."

Some time later, the husband learned the former wife was having a relationship with John Jeffrey Hall. Hall had moved into the former wife's residence and had lived there with her for three months in 1989. During this period, Hall and the former wife had a sexual relationship. Hall paid her $150 per month for rent. After the husband filed his motion to terminate spousal support, the former wife and her paramour continued their romantic relationship, but Hall stopped living with her all the time. Hall continued to spend three or four nights a week at her house, however.

The trial court, after an ore tenus hearing, denied the husband's motion to terminate spousal support, finding that the phrase "cohabitation, analogous to a marriage" meant that the wife's paramour had to have assumed financial support of the wife before the husband's spousal support obligation could be terminated.

The husband contends that the trial court erred in interpreting "cohabitation, analogous to a marriage" as encompassing a financial support component. "[O]n appeal if all the evidence which is necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which readily can be ascertained by this court." Fry v. Schwarting, 4 Va.App. 173, 180, 355 S.E.2d 342, 346 (1987). Consequently, a reviewing court is not bound by a trial court's construction of disputed contract provisions. Smith v. Smith, 3 Va.App. 510, 513, 351 S.E.2d 593, 595 (1986).

The plain and unambiguous meaning of the phrase, "cohabitation, analogous to a marriage," as contained in the agreement, is that the cohabiting parties have agreed to live together permanently or for an indefinite period and to assume duties and obligations normally attendant with a marital relationship. See Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135, 137 (1992). Although spouses are legally obligated to support a former spouse who is in necessitous circumstances, Code § 20-61, financial support of a spouse is not a condition that exists in all marriages. Thus, while contribution to support is a factor that must be considered, the lack of support or lack of an agreement concerning support does not mean that the relationship is not "analogous to a marriage."

The meaning of "cohabitation, analogous to a marriage" as a condition warranting termination of a former spouse's support obligation, as provided in this property settlement agreement, presents an issue which was recently considered in Virginia. See id. at ----, 415 S.E.2d at 138. Courts in other jurisdictions also have interpreted similar language in property settlement agreements and have generally concluded that it has a precise legal meaning. Construing the phrase, "marriage-type arrangement," the Maryland Court of Appeals said that, "[a]lthough the particular language, 'marriage-type arrangement,' may be unique, the concept which it embodies is not. Clauses of this type are not uncommon, either in separation agreements or statutes, and they routinely have been construed to envision nothing less than the functional equivalent of a marriage." Fisher v. Fisher, 75 Md.App. 193, 200-01, 540 A.2d 1165, 1168 (1988). The Maryland court said that the phrase encompasses "a common residence which each party regards as his or her home, a common household to which each contributes, and a personal relationship that is more than casual and has a significant meaning to each." Id. at 202, 540 A.2d at 1169. The Oregon Court of Appeals said that "cohabitation" as used in the phrase, "cohabitation with a member of the opposite sex," means "a domestic arrangement between a man and a woman who are not married to each other, but who live as husband and wife, in that, for more than a brief period of time, they share a common domicile and living expenses and are sexually intimate." Marriage of Edwards, 73 Or.App. 272, 278, 698 P.2d 542, 547 (1985). "Cohabitation" as used in the phrase "continuous or...