717 S.E.2d 797
Va. Ct. App.2011Background
- Divorce finalized May 11, 2007; divorce decree incorporated a prior letter agreement on support.
- Letter agreement provided $8,000 monthly permanent spousal support and $2,000 monthly child support, modifiable only for child support.
- Cranwell moved to modify child support based on material change and sought termination of spousal support.
- Trial court granted modification of child support but denied termination of spousal support; it did not include spousal support in income for child-support calculation.
- Cranwell paid $80,000 toward spousal-support arrearages in May 2010; Cranwell’s income fluctuated from 2006–2010.
- Abuse of discretion concerns: whether Campbell cohabited in a relationship analogous to marriage for one year; whether spousal support should be included in income for child-support calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cohabitation sufficient to terminate spousal support | Cranwell argues Campbell cohabited for ≥1 year with a person of opposite sex. | Campbell contends no cohabitation under the agreement; lacking common residence. | No error; Campbell did not cohabit with a common residence for one year. |
| Inclusion of spousal support in child-support income | Cranwell argues $8,000 ongoing spousal support and $80,000 arrearage payment must be included in gross income. | Campbell argues not included; spousal support should be accounted differently. | Trial court erred in not including spousal support in gross income for child-support calculation. |
Key Cases Cited
- Frey v. Frey, 14 Va. App. 270 (1992) (cohabitation requires living together with permanency; common residence essential)
- Schweider v. Schweider, 243 Va. 245 (1992) (cohabitation entails living together in the manner of husband and wife)
- Pellegrin v. Pellegrin, 31 Va. App. 753 (2000) (four-factor framework for cohabitation; common residence is a threshold requirement)
- Johnson v. Johnson, 56 Va. App. 511 (2010) (definition and interpretation of cohabitation in context of marriage-like relationships)
- Petachenko v. Petachenko, 232 Va. 296 (1986) (cohabitation requirements and matrimonial duties considered)
- Frazer v. Frazer, 23 Va. App. 358 (1996) (income included in gross income for child-support calculations; spousal support treated as income)