Long Distance Romance Not Cohabitation
By Deborah Elkins
Published: December 13, 2011
Tags: Domestic Relations,Tucker Griffin Barnes, Judge William G. Petty, Virginia Court of AppealsPublished: December 13, 2011
The Court of Appeals affirms in part and reverses in part a trial court decision refusing to terminate spousal support and modifying child support without considering child support paid in arrears; husband’s evidence does not prove cohabitation under the parties’ agreement but the trial court erred in refusing to consider husband’s spousal support paid totaling $80,000 in modifying child support.
Husband and wife have three children and divorced in 2007 by a final decree incorporating a 2006 letter agreement providing permanent monthly child support of $2,000 and spousal support of $8,000, subject to termination if wife remarried or cohabitated in a situation analogous to marriage with a person of opposite sex for a year or more. In 2009, husband moved to modify child support based on changed circumstances: his income declined from $739,554 in 2006 to $6,666 monthly in 2010. He also moved to terminate spousal support based on wife’s longstanding romantic relationship with a boyfriend who lived Los Angeles. In 2010, husband paid wife $80,000 in spousal support for 2009 arrearages.
Wife is employed as a flight attendant. She and her boyfriend sometimes visit each other but neither has a key to the other’s residence. Following a hearing, the trial court refused to terminate spousal support but modified child support without considering spousal support paid.
On appeal, husband argues sufficient evidence proves cohabitation. We disagree. Our cases interpret cohabitation to require living together in the same house continuously or with some permanency, mutually assuming marital duties and obligations. Four factors are considered: (1) common residence; (2) intimate or romantic involvement; (3) provision of financial support; and (4) duration and continuity of relationship and other indicia of permanency. Applying this framework, we cannot say the trial court erred in finding wife and her boyfriend do not cohabit in a situation analogous to marriage. They do not share the same residence or keys to each other’s separate residences; storing a few personal items does not amount to sharing a residence.
We agree with husband that the trial court erred in refusing to consider his spousal support payments of $80,000 in modifying child support. Section 20-108.2(C) expressly requires considering spousal support in gross income for determining child support, including it in the recipient spouse’s income and excluding it from the payor’s. The irregularity of the payments does not allowing excluding them but irregularity can be considered in determining whether to deviate from the statutory guideline amount. We reject wife’s argument that the trial permissibly deviated from the statutory guideline amount because the trial court failed to comply with the statutory requirement to state the amount required under the guidelines. We reverse and remand for a determination of child support complying with the statute.
Cranwell v. Cranwell (Petty) No. 2677-10-4, Dec. 6, 2011; Arlington Cir. Ct. (Brown) Robert J. Surovell for appellant; Michael A. Ward for appellee. VLW 011-7-383, 11 pp.
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
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