I.
The primary issues here for resolution are (1) whether the evidence compels the conclusion that the terms of a property settlement agreement (“PSA”) terminating spousal support upon “cohabitation with any person ... in a situation analogous to marriage” have been met, and (2) if so, whether such a clause involving a relationship among persons of the same sex is operative as a matter of law in Virginia.
Joseph Anthony Stroud (“husband”) maintains that the trial court: (1) erred in finding that husband had not established cohabitation by the preponderance of the evidence, and (2) erred in finding as a matter of law in Virginia that individuals of the same sex cannot cohabitate in a situation analogous to marriage. We agree and reverse on these issues.
Debra Lyn Stroud (“wife”) has assigned as error the trial court decision (1) to permit the introduction of evidence concerning the parties’ negotiations before execution of the PSA, and (2) to deny her request for attorney’s fees. We affirm on these issues.
II.
PAROL EVIDENCE RULE
The parties were divorced by decree entered April 7, 1999. That decree ratified, affirmed, and incorporated a PSA dated March 22, 1999. The PSA required husband to pay wife $4,000 per month spousal support. The PSA continued: “[T]he aforesaid payments shall end upon the death of either party, the remarriage of Wife and/or her cohabitation with any person to whom she is not related by blood or marriage in a situation analogous to marriage for a period of thirty (30) or more continuous days____” (Emphasis added). Husband alleges the “person” here involved, who triggered the spousal support termination clause, was a female we identify as “Robyn.”
In opening statements, wife’s attorney noted that the issues in controversy included her “cohabitation with any person” and Virginia law concerning same-sex relationships. At trial, husband offered a pre-execution draft of the PSA, and testimony concerning the same. The trial court admitted both, concluding the PSA was ambiguous and such evidence, concerning “negotiations for a settlement,” was admissible to discern the parties’ intent in the use of the word “person” in the PSA. Wife has assigned this ruling as cross-error, maintaining the admission of the evidence violated the parol evidence rule. We disagree.
“Property settlement agreements are contracts and are subject to the same rules of construction that apply to the interpretation of contracts generally.”
Southerland v. Estate of Southerland,
In
Vilseck v. Vilseck,
Furthermore, “whether contract language is ambiguous is [a question] of law, not fact.”
Plunkett,
In this case, a foundational issue was whether the parties intended, by the use of the word “person” in the context of the PSA, only individuals of different sexes, or individuals of both sexes. We hold the word “person” can be understood in either way by an objectively reasonable standard and, accordingly, that word is ambiguous as it is used in the PSA.
‘When the language of a contract is ambiguous, parol evidence is admissible, not to contradict or vary contract terms, but to establish the real contract between the parties ... [and] to determine
the intention of the parties.” Tuomala v. Regent Univ.,
Thus, “[t]he facts and circumstances surrounding the parties when they made the contract, and the purposes for which it was made, may be taken into consideration as an aid to the interpretation of the words used. . . .”
Seaboard Air Line R.R. Co. v. Richmond-Petersburg Tpk. Auth.,
Subsequent to the trial court’s ruling on admissibility, husband testified that drafts of a proposed PSA “had already bounced back and forth several times [before] we finalized it on March 16th ... and it was signed on March 22nd.” Introduced into evidence was a draft PSA in which the support termination clause read “cohabitation with a male in a situation analogous to marriage.... ” (Emphasis added). Husband testified, “I remember scratching that out and putting in ‘person,’ and submitting that to my attorney, who submitted it to [wife’s attorney’s] office.”
Likewise, relevant to interpreting the word “person” in the PSA is evidence offered by wife. On direct examination by her counsel, wife testified as follows:
Q. You testified a moment ago that you don’t live with [Robyn] in a relationship analogous to a marriage. Are there reasons for that?
A. Yeah. The most important reason is the fact that I signed an agreement with [husband] in 1999 that said that I would not cohabit with anyone in a situation analogous to marriage for 30 consecutive days, and I was very aware of that and I kept track.
(Emphasis added).
It is long established
1
that “ ‘[w]hen the terms of an agreement are ... uncertain, the interpretation placed thereon by the parties themselves is entitled to great weight and will be followed. . . .’”
Dart Drug Corp. v. Nicholakos,
This uncontested evidence of the negotiations of the parties before execution of the PSA, the various drafts of the PSA, and the interpretation of the word “person” by each of the parties subsequent to its execution, makes clear that each understood at the time of execution of the PSA the word “person” in the spousal support termination provision was to include individuals of both sexes.
III.
FACTS
The evidence considered by the trial court with respect to cohabitation was essentially undisputed. That evidence included wife’s written response to husband’s request for admissions, a transcript of wife’s deposition, a Christmas letter written by Robyn, and a
Responding to husband’s request, wife admitted the following: (1) Robyn stayed overnight in her house “an average of 5 nights per week for a period in excess of one year”; (2) Robyn “sleeps in the same bed” -with her; (3) Robyn keeps clothes in wife’s bedroom closet and toiletries in wife’s bedroom’s bathroom; (4) she engages “in consensual sexual acts” with Robyn; (5) she and Robyn have exchanged rings; (6) she and Robyn have been on vacation trips together to Europe and places in this country, and “share accommodations” on those trips; (7) Robyn washes dishes and laundry at wife’s home, possesses a key to and drives wife’s car, and attends church with wife; (8) she loaned Robyn $8,000 or $9,000 without written evidence of the debt or a repayment schedule; (9) Robyn is listed as the emergency contact on applicable forms for wife, and for wife’s three daughters; and (10) Robyn tells these children she loves them and purchases gifts for them.
Relevant to the above admissions is a Christmas letter, dated December 29, 2004, that Robyn sent to friends and family members. In that letter Robyn relates in detail pres ent activities and future plans concerning the three children. She writes,
[T]he rewards of watching three teenagers grow and mature are endless.
On a personal note, [wife] and I are doing well. Each day presents a new parenting challenge but together we can and have both the joy and the frustrations of raising three girls.... [Wife] is still working in the office ... and comes home every day with a new story____ When she is not working, she is busily putting food on the table, doing laundry, and making sure the pantry is stocked. We could not live without her.
I am the most spoiled of us all! Many of you always said that I was born with a silver spoon in my mouth.... I like to think that I know a good thing when I find it!
At trial Robyn, on many occasions after being reminded of her answers in discovery depositions, testified as an adverse witness that: (1) “[w]hen you’ve been in a relationship with someone as long as [wife] and I have, I think [that being a co-parent to wife’s three children is] a side part to it ... (2) she considered the three children as if they were her three children because “they’re the closest I’m ever going to have to having children”; (3) she acknowledged there was “an understanding of fidelity” between her and wife and viewed herself and wife “as a couple”; (4) she acknowledged that wife is “certainly someone I’m in a relationship with” and that there had been an exclusive or faithful sexual relationship between the two for “[t]hree years or so maybe”; (5) she “routinely” wears the diamond ring she received from wife; and (6) she keeps “an accordion file” of her personal records at wife’s house.
Robyn further admitted that, with respect to the residential property she owned, she rents the same to a woman with children for $900 per month, that her tenant paid all the utilities, that her tenant had complete use of the entire house, except for Robyn’s bedroom and bathroom, for herself and “[h]er children and other guests.” Robyn did not dispute any of the answers wife had submitted in response to husband’s request for admissions.
Both wife and Robyn explained why they did not present themselves as a couple to the public:
Robyn: “what I share with Debb[y] is ... against the law in Virginia ... [and] I am in a profession where I’m not protected by the law because of that.”
Wife: “I’m a Fairfax County public school employee and they don’t exactly welcome me with open arms if I’m having a relationship of some kind with a woman.”
The uncontradicted evidence, offered by both wife and Robyn, is that neither has an ownership interest in, or mortgage obligation on, the real property of the other, that they do not share bank accounts or investment
At trial the parties entered into a stipulation as to the observations of private detectives retained by husband. That stipulation, taken from the transcript, is summarized as follows: Private detectives “placed [wife’s] house under surveillance for a period of ... 34 days ... [from] January 18, 2005 through February 20, 2005 ... [and Robyn] stayed overnight at [wife’s] residence ... [during that time period] with the exception of ... four days.” Further, Robyn “did not spend any appreciable time at her own house. There is the possibility that she may have gone there to pick up mail or something, but she didn’t return to her house during that period of time ... [and if she did so] it would be immaterial to the issue at hand____”
Robyn testified, with respect to the four-day interval, that she left from wife’s home and was driven to the airport for a “business” trip, that she toured the University of Georgia, that wife picked her up at the airport, and that she returned directly to wife’s home.
At the conclusion of this undisputed evidence and argument, the trial court stated:
And so I keep finding myself in equipoise ... it’s cohabitation, analogous to a marriage, and the other, it’s not cohabitation, analogous to a marriage, and it seems to me that’s the classic definition of a failure to prove something by the preponderance of the evidence.
IV.
STANDARD OF REVIEW AS TO THE EVIDENCE
As we have noted above, the evidence in this case is essentially undisputed. In that posture:
The findings of a trial court after an ore tenus hearing should not be disturbed on appeal unless they are plainly wrong or without evidence to support them. A trial court’s conclusion based on undisputed evidence, however, does not have the same binding weight on appeal. Moreover, a fact finder may not arbitrarily disregard uncontradicted evidence that is not inherently incredible.
Schweider v. Schweider,
Thus, when “[n]o controverted fact was passed on by the trial court,”
Rinehart & Dennis Co. v. McArthur,
V.
SUFFICIENCY OF THE EVIDENCE AS TO COHABITATION
In Schweider, the Supreme Court of Virginia stated: We have said that the term “cohabit” means “to live together in the same house as married persons live together, or in the manner of husband and wife.” Johnson v. Commonwealth,152 Va. 965 , 970,146 S.E. 289 , 291 (1929). While engaging in sexual relations is a factor in determining cohabitation, “ ‘matrimonial cohabitation’ consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.” Petachenko v. Petachenko,282 Va. 296 , 299,350 S.E.2d 600 , 602 (1986).
In
Pellegrin v. Pellegrin,
(1) “Common residence.”
Id.
at 764,
(2) “Intimate or romantic involvement.” Id. For five nights a week for at least a year, Robyn has slept in wife’s bed in wife’s home and engaged in “consensual sexual acts.” Robyn testified that there had been an “exclusive or faithful sexual relationship” for “three years” and that they have exchanged diamond rings. We conclude that husband has established by the preponderance of the evidence that Robyn and wife are involved in an intimate or romantic relationship.
(3) “The provision of financial support.”
Id.
at 765,
(4) “Duration and continuity of the relationship and other indicia of permanency.”
Id.
By Robyn’s testimony, she
and wife have been in a “long” relationship for “three years or so.” She characterizes the relationship as “exclusive or faithful.” In the Christmas letter Robyn recites, “Each day presents a new parenting challenge but together we can and have endured both the joy and the frustrations of raising three girls.” In that letter, Robyn details the present activities of the children, plans for their futures, and expresses her joy “in watching [these] teenagers grow and mature____” Robyn testified she considered herself a “co-parent” to these children, ones who are “the closest I’m ever going to have to having children.” It is clear Robyn considers herself a surrogate parent to wife’s children, and the evidence does not disclose any action on wife’s part to diminish such a status. Wife has designated Robyn as the emergency contact for these children, as well as for herself. Robyn and wife routinely wear the diamond
At trial, in response to her counsel’s questions, wife only denied that she had ever entered into a “contract ... verbal or in writing ... [as to either] the longevity ... or the permanency of [her] relationship” and that they had any “ceremony” marking that relationship. Despite the absence of a contract or ceremony, it is clear that Robyn and wife view their relationship as a durable, continuing, and permanent one, and one that includes the joint raising of wife’s children. From these undisputed facts we conclude that husband has established by the preponderance of the evidence the requisite relationship between wife and Robyn.
In concluding husband had failed to prove the existence of a situation analogous to marriage, the trial court noted that wife and Robyn did not present themselves to the public as a couple. In so doing, that court may have relied upon
dicta
in
Pellegrin,
where it was noted that some foreign jurisdictions considered such display a factor “of a more circumstantial nature” in determining the existence of a relationship analogous to marriage.
Pellegrin,
Finally, we compare the evidence in the instant cause with that set forth in
Penrod v. Penrod,
Wife admitted staying at Hardman’s house three or four times a week over a period of years, sleeping in the same room and sometimes in the same bed. Wife also admitted that she kept numerous items of personalty, including clothing, at Hardman’s home. Hardman and wife vacationed together, usually at Hardman’s expense. Hardman gave wife gifts, including a diamond ring. While wife testified that the relationship with Hardman was not sexual, other evidence ... indicated that Hardman and wife were involved in a long-term intimate and monogamous relationship. Wife admitted in her deposition that she consciously caused breaks in the time she stayed at Hardman’s home because of the “sixty consecutive days” requirement in the parties’ agreement. 4
Id.
at 101,
A court’s findings “must be based upon evidence concerning the overall nature of the relationship, not merely a
piecemeal consideration of individual factors----”
Id.
It is our view that the evidence supporting the trial court’s decision in
Penrod
is substantially less compelling than the uncontradicted evidence here. Although the trial court’s conclusion is to the contrary, we think the undisputed evidence establishes, as a matter of law, that wife’s relationship with Robyn constituted cohabitation in a situation analogous to marriage.
See, e.g., Schweider,
VI.
FOR PURPOSES OF CONTRACT INTERPRETATION, MAY INDIVIDUALS OF THE SAME SEX COHABIT IN A SITUATION ANALOGOUS TO MARRIAGE UNDER VIRGINIA LAW?
The trial court was persuaded that “in Virginia, where marriage between persons of the same sex is barred—‘cohabit’ has to mean between people of the opposite sex ... as a matter of law, in Virginia, people of the same sex cannot cohabit, and that’s how the PSA was written.”
Initially we note that an Opinion of the Attorney General, while entitled to due consideration, is not binding upon a court.
Beck v. Shelton,
Such a distinction was emphasized by this Court in
O’Hara v. O’Hara,
Accordingly, Code § 20-109(A), and its clear and convincing burden of proof, does not apply to this case involving the enforcement of a negotiated agreement between husband and wife. Rather, because this case involves an action to enforce a contract between the parties, husband’s burden was to prove by a preponderance of the evidence that wife habitually cohabited with another person in a relationship analogous to a marriage for one year or more, not to prove cohabitation by clear and convincing evidence.
Id.
at 796,
The language of the PSA also contains the phrase “analogous to marriage.” A relationship “analogous to marriage” does not mean a “marriage.” Rather, “analogous” is defined as “similar in some way.”
Webster’s Dictionary
17 (Michael Agnes ed., Wiley Publishing, Inc. 2002).
See also The American Heritage Dictionary of the English Language
65 (3d ed. 1992). This Court defined “similar” in
Frederick Fire & Rescue v. Dodson,
The word similar “is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing but is not identical in form and substance.”
(Emphasis added).
Our analysis of the phrase “analogous to marriage” in the PSA is based upon the factual relationship of wife and Robyn, and explicitly does not purport to grant, or comment upon, any legal status of that relationship. Succinctly stated, that relationship, as established by the facts, is similar “but not identical in form and substance” to a marriage.
For a congruent reason, wife’s reliance on brief on the provisions of Code § 20-45.2 and Code § 20-45.3 is misplaced. The former prohibits same sex marriages in Virginia. The latter prohibits same sex civil unions, partnership contracts, or other arrangements purporting to grant the privileges and obligations of marriage. As stated above, our holding in this case explicitly does not grant any legal status to the relationship between wife and Robyn.
Accordingly, neither the trial court nor this Court is required to review the relationship between wife and Robyn with respect to matters of public policy as set forth in those statutes. Indeed, wife specifically testified that she and Robyn had never entered into a “contract” with respect to their relationship, nor participated in any “ceremony” concerning the same. In short, Code §§ 20-45.2 and 20-45.3 are irrelevant to the issue here raised. Thus, we do not address their application.
In accordance with the foregoing, we hold the trial court erred in concluding that, for the purposes of interpreting the contract between husband and wife, same sex individuals may not cohabit in Virginia as a matter of law. The cause is remanded to the trial court for entry of a decree conforming to this opinion.
ATTORNEY’S FEES
Wife assigns as error the refusal of the trial court to grant her attorney’s fees.
In
Price v. Price,
Affirmed in part, reversed in part, and remanded.
Notes
. For example, see
Clark v. Nunn,
. As the trial court commented: "But if you’re living with someone and you left on a business trip and you come back and you don’t go to your apartment or house, you go right back to living with the other person, aren’t you still cohabiting?”
. We further note that the provision of financial support is not a condition precedent to the existence of an arrangement of cohabitation
analogous to a marriage. Rather, "[financial support is but one of a number of factors” which may support such an analogy.
See Frey v. Frey,
. Exactly as did wife in this cause. See Part II of this opinion, noting wife’s testimony that she would "keep track” of the days to avoid the 30-day portion of the PSA.