Opinion
Case No. CL-2007-10034 Case No. CL-2007-3241
05-04-2011
Karen Buchanan v. Hyrom Buchanan
Arlene Pripeton, Esquire Counsel for Plaintiff Adam Elfenbein, Esquire Counsel for Defendant/Petitioner
MARCUS P. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKCRT
RICHARD J. JAMBORSKY
JACK R. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL R. McWEENY
GAYLORD L. FINCH. JR.
STANLEY P. KLEIN
RETIRED JUDGES
May 4, 2011
Dear Counsel:
This matter came before the Court on Defendant's "Petition for Declaratory Judgment that Spousal Support Terminated Before October 1, 2008, and Further Relief." Upon consideration of the pleadings, arguments of counsel, and the applicable governing authorities, the Court grants in part and denies in part Defendant's petition.
Background
Plaintiff Karen Buchanan ("Wife") and Defendant Hyrom Buchanan ("Husband") were married in 1992. The parties separated in December 2005. On March 26, 2008, they entered into a property settlement agreement ("PSA") which was affirmed, ratified and incorporated, but not merged into the final divorce decree dated March 22, 2008. In paragraph 2A of the PSA, the parties agreed that Husband would pay Wife $600 per month in spousal support for thirty-six months, and that:
[s]aid spousal support payment shall cease upon the thirty-sixth payment, or earlier upon . . . [Wife's] habitual cohabitation with another individual in a relationship analogous to marriage for a period in excess of one year . . .
On December 22, 2010, Husband filed a petition in this Court alleging that Wife had been cohabitating with another man in a relationship analogous to marriage since October 1, 2008. Husband's petition asks the Court for a declaratory judgment stating that his duty to pay spousal support terminated on November 1, 2009. Husband's petition further asks for a judgment against Wife in the amount of all spousal support payments improperly deducted from his pay since November 1, 2009.
On April 4, 2011, the Court held an evidentiary hearing on Husband's petition. Husband presented two witnesses - the parties' son, Julius Buchanan, and his mother, Deborah Lowe ("Ms. Lowe"). Julius testified that Wife had lived and cohabitated in the same home with Ed Burnside ("Mr. Burnside") since October 2008. Julius also testified that Wife and Mr. Burnside shared the same bed, and that Wife did not pay for her living arrangement with Mr. Burnside. Julius further testified that Wife and Mr. Burnside had discussed getting married. Ms. Lowe testified that she had visited Wife multiple times since October 2008, and that Wife and Mr. Burnside were living together. Ms. Lowe further testified that she saw a checkbook containing both Wife's name and Mr. Burnside's name.
In rebuttal, Wife presented a lease agreement between herself and Mr. Burnside dated October 1, 2008, that required Wife to pay $500 in rent for three bedrooms in Mr. Burnside's home. Wife also put forth three witnesses - herself Mr. Burnside, and the parties' daughter, Kiera Lynwood.
Mr. Burnside testified that he never shared a bedroom with Wife and that their relationship was platonic. However, Mr. Burnside also testified that he and Wife sometimes took meals together, Wife regularly cleaned the house, and that Wife only paid rent once or twice while living there. Moreover, Mr. Burnside's testimony on cross-examination was often inconsistent with his prior answers, and at times Mr. Burnside could not recall simple details regarding his living arrangement with Wife.
Wife testified that her relationship with Mr. Burnside was that of landlord tenant and nothing more. However, Wife admitted that she never paid any rent to Mr. Burnside, and that they sometimes "went to eat together." Furthermore, the Court found several of Wife's statements unbelievable and evasive. For example, when asked whether Wife held a joint checking account with Mr. Burnside, Wife responded "not that I know of."
Kiera testified that there was never any romantic relationship between Wife and Mr. Burnside. Kiera further testified that Mr. Burnside and Wife never presented themselves as boyfriend-girlfriend, and that Wife did not wash Mr. Burnside's laundry or clean his room. Although Kiera's testimony mirrored Wife's, the Court found several of Kiera's statements unbelievable. For example, Kiera testified that Wife slept in a bedroom with her every night while riving with Mr. Burnside. Furthermore, it became clear during cross-examination that Kiera possessed a heightened level of animosity towards Husband.
In addition to presenting evidence that there was no cohabitation, Wife further argued that the Court should preclude Husband's petition under the doctrine of unclean hands. According to Wife, Husband was substantially in arrears in the payment of spousal support when he filed the petition, and therefore, Husband came to court with unclean hands and should be barred from proceeding. Wife also argued that the Court should preclude Husband's petition under the doctrine of laches. Wife claims that Husband unreasonably delayed bringing his petition because Husband was aware of this alleged cohabitation since October 2008 and yet he did not take action until December 2010, a period of over two years.
During the April 4, 2011, hearing, the parties also disputed the proper evidentiary standard. Wife argued that that Husband had to prove cohabitation by clear and convincing evidence as required by Virginia Code § 20- 109(A). Husband, on the other hand, argued that because this case involves an action to enforce a contract between the parties, the burden was to prove cohabitation by a preponderance of the evidence.
At the conclusion of the April 4, 2011, hearing, Husband asked the Court for attorney's fees. Husband did not present any evidence regarding attorney's fees at the hearing, but instead requested the Court leave to submit a fee affidavit. Without making any ruling on Husband's request, the Court allowed Husband to submit an attorney's fee affidavit.
The Court opted to take Husband's petition under advisement and instructed both parties to submit supplemental briefs. The Court has now had the opportunity to review the pleadings, briefs, and testimony, and the rulings are as follows.
Analysis
This case presents four issues. First, what is the applicable standard that Husband must meet to prove cohabitation - preponderance of the evidence or clear and convincing evidence. Second, whether Husband has met the applicable standard and presented sufficient evidence that Wife and Mr. Burnside cohabitated in a relationship analogous to marriage for one year or more. Third, whether Husband's petition is precluded by laches or the doctrine of unclean hands. Fourth, whether Husband is entitled to attorney's fees. Issue 1 - What Is The Applicable Evidentiary Standard For
Cohabitation In This Case
During the Court's hearing, Wife argued that that Husband had to prove cohabitation by clear and convincing evidence as required in Virginia Code § 20-109(A),1 Husband, on the other hand, argued that because this case involves an action to enforce a contract between the parties (i.e. the PSA), the burden to prove cohabitation is by a preponderance of the evidence.
The Virginia Court of Appeals addressed this very issue in the case O'Hara v. O'Hara, 45 Va. App. 788, 613 S.E.2d 859 (Va. Ct. App. 2005). In O'Hara, the husband was seeking to terminate spousal support based upon language in their property settlement agreement which stated that spousal support terminated if the wife cohabitated with a man in a relationship analogous to marriage for more than one year. 45 Va. App. at 790-95, 613 S.E.2d at 860-63. Husband's counsel argued that the correct standard should be preponderance of the evidence; wife's counsel, citing Code § 20-109(A), argued that the standard should be clear and convincing evidence. Id. at 794-95, 613 S.E.2d at 862-63. The Court of Appeals adopted the preponderance of the evidence standard because the husband was seeking to terminate spousal support based upon the property settlement agreement and not Code § 20-109(A). Id. at 795-96, 613 S.E.2d at 862-63. The court specifically held:
The PSA, which was affirmed, ratified, and incorporated into the final decree, expressly authorized the termination of spousal support if wife habitually cohabited with another person in a relationship analogous to a marriage for one year or more. Husband filed the petition for termination of spousal support pursuant to the PSA, which we note does not reference Code § 20-109(A). 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, 613 S.E.2d at 863.
In this case, as in O'Hara, Husband filed his petition pursuant to the PSA and not Code § 20-109(A). Moreover, Code § 20-109(A) is not cited or referenced in the PSA. Accordingly, 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 cohabitated with Mr. Burnside in a relationship analogous to a marriage for one year or more, not to prove cohabitation by clear and convincing evidence. Issue 2 - Did Husband Establish Bv A Preponderance Of The Evidence
That Wife Habitually Cohabitated With Mr. Burnside In A Relationship
Analogous To Marriage For One Year Or More
The PSA provides that "spousal support payment[s] shall cease . . . upon . . . [Wife's] habitual cohabitation with another individual in a relationship analogous to marriage for a period in excess of one year . . . ." This language is clear that Husband's obligation to provide spousal support terminated automatically if Wife cohabitated with another individual for a period in excess of one year. Accordingly, for the Court to grant Husband the declaratory rehef requested in his petition — a declaratory judgment stating that his duty to pay spousal support terminated on November 1, 2009 - Husband needed to show by a preponderance of the evidence that Wife cohabitated with Mr. Burnside in a relationship analogous to marriage from October 2008 through November 2009.
The phrase "cohabitation analogous to a marriage" has been consistently interpreted by Virginia courts as encompassing a continuity element and an assumption of marital duties. See Frey v. Frey, 14 Va. App. 270, 275, 416 S,E.2d 40, 43 (Va. Ct. App. 1992). In Schweider v. Schweider, the Supreme Court of Virginia stated:
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 cohabitation1 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, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986).243 Va. 245, 248, 415 S.E.2d 135, 137 (1992). Factors relevant to the determination of whether cohabitation has been proved include: common residence, intimate or romantic involvement, the provision of financial support, and the continuity and duration of a relationship. See Pellegrin v. Pellegrin, 31 Va. App. 753, 764-66, 525 S.E.2d 611, 616-17 (Va. Ct. App. 2000). "Although the enunciated factors provide discrete categories of evidence relevant to the issue, no one factor is determinative." Id. at 766, 525 S.E.2d at 617.
In this case, Husband offered credible testimony that Wife and Mr. Burnside shared a common residence in the manner of husband and wife from October 2008 through November 2009. Julius testified that between October 2008 and November 2009 Wife shared a house and bed with Mr. Burnside. The testimony evidence also indicates that Wife and Mr. Burnside had a romantic relationship during this period. Moreover, the evidence was undisputed that Wife did not pay Mr. Burnside rent during this time, and that Wife often cleaned Mr. Burnside's home. Mr. Burnside also admitted during cross-examination that he and Wife often shared meals together. Ms. Lowe offered credible testimony that Wife and Mr. Burnside shared finances. Although Wife put forth testimony that there was no relationship analogous to marriage, the Court did not find Wife's witnesses credible. For instance, after testifying that Wife did not share a room with him, Mr. Burnside had trouble remembering which bedroom Wife used and the number of beds it/contained. Furthermore, the lease agreement Wife presented between herself and Mr. Burnside is of little evidentiary value since Mr. Burnside's testimony clearly established that they never adhered to the lease terms.
Accordingly, the Court finds that Husband has proved by a preponderance of the evidence that Wife cohabitated with Mr. Burnside in a relationship analogous to marriage from October 2008 through November 2009, and therefore, Husband's spousal support obligation terminated pursuant to the PSA on November 1, 2009. Given this finding, the Court grants Husband's request for a declaratory judgment that his duty to pay spousal support terminated on November 1, 2009.
Husband's petition also requested that the Court enter "judgment against [Wife] in the amount of all spousal support payments improperly deducted from [Husband's] paychecks" since November 1, 2009. Wife, however, contends that the Court is without authority to grant this relief. Without deciding whether it has authority to order such relief, the Court finds that Husband is not entitled to such a judgment because he failed to submit any evidence regarding the amount of support, if any, he paid from November 1, 2009, until present. Wife argued during the hearing that Husband was substantially in arrears in the payment of spousal support. Without proper evidence regarding the amount of support Husband actually paid, the Court will not enter the judgment requested. Issue 3 - Is Husband's Petition Precluded By Laches Or The Doctrine
Of Unclean Hands.
The doctrine of unclean hands basically provides that a person seeking equitable relief must not himself have been guilty of any inequitable or wrongful conduct with respect to the transaction sued of. Equity will not give relief where the party seeking relief has been guilty of fraud, illegality, tortious conduct or the like. Cline v. Berg. 273 Va. 142, 147, 639 S.E.2d 231, 234 (2007); Richards v. Musselman, 221 Va. 181, 186, 267 S.E.2d 164, 167 (1980). Application of the doctrine turns upon the facts of each particular case and is therefore left to the sound discretion of the fact finder. Wiglesworth u. Taylor, 239 Va. 603, 608, 391 S.E.2d 299, 303 (1990).
In the instant case, Wife argues that the doctrine of unclean hands should preclude Husband's petition for equitable relief because he "is in arrears on paying spousal support as ordered." Although Wife asserted throughout the hearing that Husband was behind on his support obligations, there was insufficient evidence presented for the Court to determine what amount, if any, Husband was in arrears. Although the Court is satisfied that the failure to pay spousal support could activate the doctrine of unclean hands under the appropriate circumstances, the Court is unconvinced that the doctrine is applicable on the facts of this case. Accordingly, Wife's unclean hands defense is denied.
The doctrine of laches involves the failure of a party to assert a known right or claim for an unexplained period of the time resulting in prejudice to the adverse party. 1924 Leonard Rd„ L.L.C v. Van Roekel, 272 Va. 543, 559, 636 S.E.2d 378, 387 (2006); Stewart v. Lady, 251 Va. 106, 114, 465 S.E.2d 782, 786 (1996). The burden of proving laches rests with the party asserting it. Stewart, 251 Va. at 114, 465 S.E.2d at 786. Even though a finding of laches rests primarily within the discretion of the trial court, the party asserting this defense must still prove prejudice. Masterson v. Board of Zoning Appeals, 233 Va. 37, 48, 353 S.E.2d 727, 735 (1987).
Wife contends that Husband unreasonably delayed bringing his petition, and thus, the doctrine of laches should preclude his request. According to Wife, Husband "alleges that he was aware of [t]his alleged cohabitation since October 1, 2008, and didn't file his petition until December 22, 2010, a period of over two years."
First, Wife's contention that Husband delayed brining his petition for over two years is simply incorrect. The plain language of the PSA required Wife to cohabitate with another man for one year or more before spousal support terminated. Accordingly, the cause of action addressed in Husband's petition did not accrue in October 2008 when he became aware of the cohabitation, but instead one year later in November 2009. Therefore, Husband only delayed 13 months In bringing his petition. The Court does not find this delay unreasonable. Second, Wife failed to offer sufficient proof that she was prejudiced by Husband's delay. Although Wife alleges prejudice in her supplemental brief she failed to set forth how she was prejudiced or present any evidence to this effect. Accordingly, the Court finds the doctrine of laches inapplicable in this case.
Issue 4 - Is Husband Entitled to Attorney's Fees
The Supreme Court of Virginia has held that when a settlement agreement has been affirmed, ratified, and incorporated into the parties' final decree of divorce, "'[Virginia Code] § 20-109 restricts the court's jurisdiction over awarding "alimony, suit money, or counsel fee" to the terms of the contract.'" Thomas u. Thomas, 216 Va. 741, 743, 222 S.E. 2d 557, 559 (1976) (quoting McLoughlin v. McLoughlin, 211 Va. 365, 368, 177 S.E. 2d 781, 783 (1970)). As these cases hold, the statutory language of Code § 20-109(C) restricts this Court to decreeing according "to the terms", of the settlement agreement. Accordingly, no decree or order directing the payment of counsel fees can be entered except in accordance with the parties' settlement agreement. See Rutledge v. Rutledge, 45 Va. App. 56, 60-62, 608 S.E.2d 504, 506-07 (Va. Ct. App. 2005).
Wife contends that the PSA and Code § 20-109(C) preclude granting attorney's fees in this case. According to Wife, the PSA allows attorney's fees only in the event that either party takes legal action for the other's failure to abide by the agreement. Husband's petition, however, is an action for declaratory judgment and not an action for failure to abide. Therefore, any order granting attorney's fees on Husband's petition would not adhere with the PSA as required.
Wife's argument is without merit because the PSA is not as restrictive regarding attorney's fees as she contends. Concerning attorney's fees, the PSA states:
In the event either party should take legal action against the other by reason of the other's failure to abide by this Agreement, the party who is found to be substantially in violation of this Agreement shall pay to the party who substantially prevails in said action, the prevailing party's reasonable attorney's fees . . .
This paragraph shall be in addition to any rights either party may have to petition for attorney fees and costs and shall not preclude either party from petitioning or from being awarded by a Court. . . attorney fees and costs in any future proceeding wherein such fees are permitted by law.(emphasis added). Succinctly stated, the PSA provides that the Court shall award attorney's fees in the event that either party takes legal action for the other's failure to abide by the agreement, but in all other cases the Court maintains jurisdiction to award fees as allowed by law. Accordingly, the PSA does not prohibit the Court from issuing attorney's fees in this case.
It should also be noted that the PSA does not mandate attorney's fees in this case. The plain language of the PSA requires the imposition of attorney's fees only when either party takes legal action for the other's failure to abide by the agreement. Husband's petition is not for Wife's failure to abide, but instead to declare a date that spousal support terminated. Indeed, Husband's petition does not allege that Wife violated or failed to act in accordance with the PSA. Thus, the PSA neither requires nor prohibits the Court from issuing attorney's fees in this case.
Husband, therefore, contends that the Court may issue attorney's fees at its discretion in this case. In support of this position, Husband cited the case of Cooke v. Cooke, 23 Va. App. 60, 474 S.E.2d 159 (Va. Ct. App. 1996). In Cooke, the Virginia Court of Appeals noted that in cases to modify child support an award of attorney's fees is a matter within the trial court's sound discretion. 23 Va. App. at 65, 474 S.E.2d at 161. The Court is unsatisfied that Cooke establishes jurisdiction to discretionally award attorney's fees in this case because Husband's petition is in the form of a contract action and not a domestic relations matter. However, assuming arguendo that the Court may award attorney's fees at its discretion in this case, the Court declines to enter such relief. The evidence indicates that Wife continues to support the parties' minor child with meager resources; thus, any award of attorney's fees would only prejudice the minor child. Moreover, Husband did not request this relief in his petition, and Wife had no opportunity to object or question the reasonableness of the fees requested because Husband did not present attorney's fees evidence until after the hearing. Accordingly, Husband's request for attorney's fees is denied.
Conclusion
For the reasons set forth above, Husband's petition is granted in part and denied in part. An order reflecting the Court's ruling is enclosed.
Sincerely, Jonathan C. Thacher
Circuit Court Judge, Fairfax County
ORDER
THIS MATTER came to be heard on Defendant Hyrom Buchanan's Petition for Declaratory Judgment that Spousal Support Terminated Before October 1, 2008, and Further Relief; and
IT APPEARING to the Court for the reasons stated in the Court's Letter Opinion of May 4, 2011, that Defendant's Petition should be granted in part and denied in part; it is therefore
ORDERED that Defendant's request for a declaratory judgment that his duty to pay spousal support terminated on November 1, 2009. is GRANTED; it is further
ORDERED that Defendant's request for a judgment against Plaintiff in the amount of all spousal support payments improperly deducted from Defendant's pay since November 1, 2009, is DENIED; it is further
ORDERED that Defendant's request for attorney's fees is DENTED.
ENTERED this 4th day of May, 2011. _________________
Honorable Jonathan C. Thacher
Fairfax County Circuit Court
In order to expedite the disposition of this matter, endorsement of this Order 1:13 of the Rules of the Supreme Court of Virginia. _______________________________________________ 1 Code § 20-109(A) provides, in relevant part:
Upon order of the court based upon dear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1,1997, the court shall terminate spousal support and maintenance...