Luttrell v. Cucco, 784 S.E.2d 707

Michael Luttrell and Samantha Cucco divorced in 2008; their Property, Custody, and Support Agreement (PSA) required Luttrell to pay spousal support for eight years but provided that payments would terminate on the recipient’s death, remarriage, or by court action under Va. Code § 20-109 for cohabitation.
The PSA also included a cost-shifting clause awarding reasonable expenses, including attorney fees, to a party who successfully defends against enforcement actions and assigning costs to a defaulting party who unsuccessfully seeks enforcement.
In 2014 Luttrell moved to terminate spousal support, alleging Cucco had cohabited with her fiancée (another woman) for at least one year; Cucco conceded the relationship facts but argued a same-sex relationship cannot constitute “cohabiting…in a relationship analogous to a marriage” under § 20-109(A).
The circuit court concluded § 20-109(A) applied only to opposite-sex cohabitation, denied Luttrell’s motion, and awarded Cucco attorney’s fees under the PSA; the Court of Appeals affirmed.
The Virginia Supreme Court reviewed whether § 20-109(A) reaches same-sex cohabitation and whether the attorney-fee award should stand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 20-109(A)’s phrase “habitually cohabiting with another person in a relationship analogous to a marriage” applies to same-sex relationships	Luttrell: statute is gender neutral; "person" includes same-sex partners; legislative history shows omission of "of the opposite sex" was deliberate	Cucco: prior case law and common understanding limit “cohabit…analogous to marriage” to opposite-sex relationships	Held: Statute is gender neutral and covers same-sex cohabitation; Court of Appeals erred to limit § 20-109(A) to opposite-sex couples
Whether the circuit court’s attorney-fee award to Cucco should stand	Luttrell: requested termination; if he prevails on cohabitation showing, fee award is improper	Cucco: she successfully defended the enforcement action below; PSA authorizes fees for successful defense	Held: Fee award vacated because Cucco did not ultimately prevail on the substantive statutory interpretation; remand for evidentiary hearing and reconsideration of fees

Schweider v. Schweider, 243 Va. 245 (discussing "cohabit" as living together as married persons and matrimonial cohabitation)
Petachenko v. Petachenko, 232 Va. 296 (defining matrimonial cohabitation as living together and carrying out mutual marital responsibilities)
Frey v. Frey, 14 Va. App. 270 (factors for a relationship "analogous to marriage": shared residence, intimacy, financial support, mutual duties)
Stroud v. Stroud, 49 Va. App. 359 ("analogous to marriage" need not be a legal marriage; guides interpretation of analogous relationships)
Eberhardt v. Fairfax Cnty. Emps. Ret. Sys., 283 Va. 190 (statement of de novo review for statutory interpretation)