John David Pellegrin v Diane L. Bingman Pellegrin

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
JOHN DAVID PELLEGRIN
OPINION BY
v. 	Record No. 2142-98-4 	JUDGE ROSEMARIE ANNUNZIATA
MARCH 14, 2000
DIANE LYNN BINGMAN PELLEGRIN
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
John D. Pellegrin, pro se.
David M. Levy (Surovell, Jackson, Colten &
Dugan, on brief), for appellee.
John David Pellegrin ("husband") appeals from the decision
of the trial court, claiming it erred in refusing to terminate
spousal support. 	Husband specifically contends that the court
(1) improperly declined to impute income to his former spouse,
Diane Lynn Bingman Pellegrin ("wife"); (2) failed to consider
wife's gross income earned from rental properties that she
owned; (3) failed to consider husband's disability; and (4)
failed to find wife was cohabiting on a "substantially
full-time" basis with her paramour, all in contravention of
various provisions of the parties' Property Settlement Agreement
("PSA") governing spousal support. 	Husband also contends the
trial court erred in awarding attorney's fees to wife.

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The parties were divorced by final decree of the Circuit
Court of Fairfax County on March 5, 1991. 	The decree
incorporated the parties PSA, whose provisions provide the basis
of husband's claims on appeal. 	The trial court denied husband's
petition seeking to terminate the spousal support he was
obligated to pay to wife under the PSA.
I.
Husband first contends the trial court erred in denying his
petition to terminate support because the court failed to impute
income to wife. 	The court's ruling is based on its construction
of the PSA and its conclusion that since the agreement did not
expressly require wife to seek and obtain employment, income
could not be imputed to wife.
Husband contends the obligation is established by
implication, noting Section 8 of the PSA, which reads, in
pertinent part:
If, as of May 1, 1995, the wife is employed
or thereafter becomes employed with an
annual gross income in excess of $25,000,
husband's obligation to pay spousal support
and maintenance shall be reduced by 50
percent of the amount by which wife's gross
annual income exceeds $25,000, or by fifty
percent of the amount by which wife's
monthly income exceeds $2,083.33.
The PSA also provides:
[S]pousal support payments . . . shall in
any event be reduced to a maximum of Two
Thousand Dollars ($2,000.00) per month,

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after wife's graduation from college, or
June 1, 1997, whichever first occurs.
Finally, the PSA, also provides that husband "shall pay, or
cause to be paid, the tuition and related fees, not including
room and board, for wife in any college, university with an
accredited undergraduate and/or graduate degree program in which
wife is enrolled, husband's liability and responsibility as to
same to terminate as of June 1997 . . . ."
Husband contends that because the PSA required him to pay
for wife's college and graduate school education, and
contemplated decreases in his obligation to support her as her
income increased, the PSA should be construed as requiring wife
to seek employment. 	We agree.
It is well established that a property settlement agreement
is a contract between the parties and that their rights and
obligations are defined under it. 	See Douglas v. Hammett, 28
Va. App. 517, 523, 507 S.E.2d 98, 101 (1998) (separation
agreements and property settlement agreements are contracts);
Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764
(1994) ("[W]e must apply the same rules of interpretation [to
property settlement agreements as are] applicable to contracts
generally."); Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 S.E.2d
796, 799 (1985). 	"'"[W]here a contract is complete on its face,
is plain and unambiguous in its terms, the court is not at
liberty to search for its meaning beyond the instrument itself

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. . . ."'" 	Harris v. Woodrum, 3 Va. App. 428, 432, 350 S.E.2d
667, 669 (1986) (quoting Berry v. Klinger, 225 Va. 201, 208, 300
S.E.2d 792, 796 (1983) (quoting Globe Co. v. Bank of Boston, 205
Va. 841, 848, 140 S.E.2d 629, 633 (1965))). 	In determining the
intent of the parties, courts will generally not infer covenants
and promises which are not contained in the written provisions.
However,
what is necessarily implied is as much a
part of the instrument as if plainly
expressed, and will be enforced as such. 	If
the language of the instrument leaves the
meaning of the parties in doubt, the court
will take into consideration the occasion
which gave rise to it, the obvious design of
the parties, and the object to be attained,
as well as the language of the instrument
itself, and give effect to that construction
which will effectuate the real intent and
meaning of the parties.
Va. Ry. & Power Co. v. City of Richmond, 129 Va. 592, 611, 106
S.E. 529, 536 (1921) (citing Southern Ry. Co. v. Franklin Co.,
96 Va. 693, 32 S.E. 485 (1899)). 	In determining the parties'
intent, courts
are never shut out from the same light which
the parties enjoyed when the contract was
executed, and in that view they are entitled
to place themselves in the same situation
which the parties who made the contract
occupied, so as to view the circumstances as
they viewed them and so to judge of the
meaning of the words and of the correct
application of the language to the things
described.

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Talbott v. Richmond & Danville R. R. Co., 72 Va. (31 Gratt) 685
(1879); see also Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123,
125 (1974) ("Ascertainment of the intent of the contracting
parties is the cardinal rule in the construction of agreements.
To do that the court will put itself in the situation occupied
by the parties and look to the language employed, the subject
matter and purpose of the parties, and all other pertinent
circumstances.").
In the case before us, the record establishes that the
parties agreed that husband's support obligation would be
diminished as wife's income from employment increased. 	That
wife would become employed was clearly within the contemplation
of the parties. 	Furthermore, the parties agreed that the
support obligation was keyed, in part, to wife earning her
undergraduate degree, at which time husband's obligation to
support was to diminish by a set amount. 	Furthermore, husband
specifically agreed to pay the costs of wife's undergraduate
and/or graduate degrees, an obligation which was to terminate
seven years after the PSA was entered, specifically, June 1997.
Given the circumstances attending the agreement, and the object
to be attained, viz., that the level of support which wife could
enjoy under the terms of the PSA was made dependant upon her
ability to contribute to her own support or become wholly
self-supporting, and that, in any event, wife's support would be

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reduced by a set amount upon obtaining her undergraduate degree,
it follows, by implication, that the parties contemplated that
wife would assume responsibility for her support within her
capacity to earn income. 	In sum, we find that husband's
agreement to pay for wife's educational costs after they
divorced relates to wife's capacity to earn income, and when
read together with the provisions requiring a reduction of
support in relation to wife's earned income, established an
implied contractual duty upon wife to make a reasonable effort
to seek employment, at least, upon completion of her degree.
Accordingly, because the trial court erred in finding no such
duty arose from the terms of the contract, we remand for further
proceedings based on the evidence presented.
II.
Husband further argues that rental income enjoyed by wife
should be treated as "income from employment," but this
contention previously was raised by husband in an earlier appeal
and rejected by this Court in Pellegrin v. Pellegrin, No.
0143-96-4 (Va. Ct. App. Oct. 29, 1996). 	This issue therefore is
barred as res judicata, and it will not be addressed further.
III.
Husband argues also that his obligation to pay spousal
support should have been terminated or reduced under the terms

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of the PSA because he is disabled. 	The provision at issue
states:
The parties agree that the [husband's]
obligation to pay spousal support hereunder
shall be subject to modification in the
event of [husband's] disability causing
reduction or loss of income on his part
. . . .
Husband failed to prove that he is disabled and that the
disability caused a reduction in his income; indeed, he
testified that he is "working harder than ever in his life,"
providing evidence which belies his claim of disability. 	This
testimony plainly contradicted husband's earlier testimony as to
a purported medical disability. 	Furthermore, husband presented
no evidence that his medical disability, if any were proven,
caused his claimed reduction in income, as required by the PSA.
Consequently, we find no error in the trial court's conclusion
that husband's health did not render him "disabled" within the
meaning of the PSA.
Furthermore, we find no merit in husband's contention that
the word "disability" should not be limited to a disability
personal to him and should be extended to encompass diminished
ability to earn sufficient income due to factors such as
down-turns in the economy, his employment status, or changes in
his client base. 	Section 8 of the PSA makes clear that the
meaning ascribed to the term "disability" as contemplated by the
parties was one personal to him.

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Indeed, the law of the Commonwealth governing the disabled
is consistent with that of the United States in deeming that a
"'person with a disability' means any person who has a physical
or mental impairment that substantially limits one or more of
his major life activities . . . ." 	Code § 51.5-3; cf. 42
U.S.C.A. § 12102(2)(A). 	Because of Section 8's patent concern
with the earning capacity of the husband, the term "disability"
as used in that section may only be inferred to concern a
disability personal to him.
In addition to the commonly accepted meaning of the term
"disability" as applied in pertinent law, Section 8 of the PSA
states clearly that the disability in question must inhere in
the husband. 	As is patent in husband's argument, the reduction
of income of which he complains was caused by the financial
vicissitudes of third parties; the PSA requires that the
reduction or loss of income result from husband's disability.
If the parties had intended that term to include unexpected
business losses, they should have, and could have, specified
that intent in their agreement. 	Having failed to do so, we will
not redefine "disability" to render it broader than its common
usage and its context within the PSA suggests.
IV.
Next, husband contends that the trial court erred in
denying his petition for a reduction of spousal support because

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wife cohabits on a "substantially full-time" basis with her
paramour in contravention of Section 8 of the PSA. 	That section
provides, in pertinent part, that spousal support shall
terminate if the wife "for any period of one month or more
cohabits on a full-time or substantially full-time basis with a
male non-relative." 	Thus, whether the husband's contention is
valid depends upon the meaning of the word "cohabit" as
contemplated by the PSA. 	See Bergman v. Bergman, 25 Va. App.
204, 211-12, 487 S.E.2d 264, 267 (1997); Smith v. Smith, 3
Va. App. 510, 513, 351 S.E.2d 593, 595 (1986) ("In Virginia,
property settlement agreements are contracts subject to the same
rules of formation, validity, and construction as other
contracts.").
The PSA in question does not define the word "cohabit."
The term has been the subject of judicial construction in
various contexts, however. 	See, e.g., Schweider v. Schweider,
243 Va. 245, 248-49, 415 S.E.2d 135, 137 (1992) (construing the
term within the context of a PSA); Petachenko v. Petachenko, 232
Va. 296, 299, 350 S.E.2d 600, 602 (1986) (considering what
constituted sufficient "cohabitation" to terminate a period of
marital desertion); Tarr v. Tarr, 184 Va. 443, 35 S.E.2d 401
(1945) (deciding what constituted "cohabitation" condoning a
spouse's adultery); Johnson v. Commonwealth, 152 Va. 965, 970,
146 S.E. 289, 291 (1929) (construing the term in a prosecution

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of criminal defendant for lewd and lascivious cohabitation);
Penrod v. Penrod, 29 Va. App. 96, 99-101, 510 S.E.2d 244, 245-46
(1999) (construing "cohabit" as intended in parties' PSA); Frey
v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992) (also
construing cohabitation within intent of a PSA). 	A body of law
of significant consistency which addresses the term's meaning
emerges from these cases and those decided in our sister states,1
particularly those addressing the issue in the context of
property settlement agreements.2 The following factors generally
have been considered relevant to the court's determination of
whether cohabitation has been proved.
1. 	Common residence
The requirement that the payee ex-spouse and that party's
paramour be shown to have established and shared a common
residence is firmly established in Virginia case law. 	See
Schweider, 243 Va. at 248-49, 415 S.E.2d at 137; Frey, 14
1 See, e.g., Konzelman v. Konzelman, 729 A.2d 7, 16 (N.J.
1999) ("Cohabitation involves an intimate relationship in which
the couple has undertaken duties and privileges that are
commonly associated with marriage. 	They can include, but are
not limited to, living together, intertwined finances such as
joint bank accounts, sharing living expenses and household
chores, and recognition of the relationship in the couple's
social and family circle."). 	See also Baker v. Baker, 566
N.W.2d 806 (N.D. 1997); Gordon v. Gordon, 675 A.2d 540 (Md.
1996); Iowa v. Kellogg, 542 N.W.2d 514 (Iowa 1996).
2 The cases we cite in this opinion reflect the current
status of a body of law which continues to evolve. 	It is,
therefore, not intended to be exclusive or definitive.

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Va. App. at 275, 416 S.E.2d at 43 ("cohabitation, analogous to a
marriage," means a status in which a man and woman live together
continuously, or with some permanency, mutually assuming duties
and obligations normally attendant with a marital relationship );
see also Petachenko, 232 Va. at 299, 350 S.E.2d at 602. 	The
shared common residence factor has been utilized as an element
of the definition of cohabitation even before its use in
property settlement agreements. 	See Johnson, 152 Va. at 970,
146 S.E. at 291 (cohabit means "to live together in the same
house as married persons live together, or in the manner of
husband and wife"). 	However, proof of a common or shared
residence does not itself establish cohabitation. 	See Bergman,
25 Va. App. at 213, 487 S.E.2d at 267 (citing Schweider, 243 Va.
at 248, 415 S.E.2d at 137; Frey, 14 Va. App. at 273, 416 S.E.2d
at 42).
2. 	Intimate or romantic involvement
An intimate relationship does not necessarily require
sexual intimacy. 	See Penrod, 29 Va. App. at 101, 510 S.E.2d at
246 (a couple's sexual relationship alone is not a sufficient
consideration in determining cohabitation). 	While sexual
intimacy may provide significant proof of cohabitation, see
Frey, 14 Va. App. at 275, 416 S.E.2d at 43, other indicia of a
couple's close, interrelated functioning are equally important.

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See Penrod, 29 Va. App. at 101, 510 S.E.2d at 246; see also
Petachenko, 232 Va. at 299, 350 S.E.2d at 602. 	"'[Cohabitation]
. . . imports the . . . continuing condition of living together
and carrying out the mutual responsibilities of the . . .
relationship.'" 	Schweider, 243 Va. at 248, 415 S.E.2d at 137
(quoting Petachenko, 232 Va. at 299, 350 S.E.2d at 602).
Compare Gordon v. Gordon, 675 A.2d 540, 547 (Md. 1996) ("[T]he
ordinary definition of 'cohabitation,' describing a relationship
of living together 'as man and wife,' connotes a mutual
assumption of the duties and obligations associated with
marriage.").
3. 	The provision of financial support
Several decisions include receipt of financial
contributions from the paramour to the payee ex-spouse as a
factor to be considered. 	See Schweider, 243 Va. at 248-49, 415
S.E.2d at 137; Frey, 14 Va. App. at 275, 416 S.E.2d at 4; see
also Petachenko, 232 Va. at 299, 350 S.E.2d at 602.
"[Contributions] to financial support [by the paramour] . . .
tend[ ] to prove the assumption of duties or obligations
attendant to marriage . . . ." 	Frey, 14 Va. App. at 275, 416
S.E.2d at 43. 	See also Gordon, 675 A.2d at 548 (Maryland Court
of Appeals found proof of shared assets and common bank accounts
to be significant in determining cohabitation); cf. In the
Matter of the Marriage of Winningstad, 784 P.2d 101, 104 (Ore.

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App. 1989) (holding that without proof of such financial
contribution, Oregon courts shall not terminate spousal
support).
4. 	Duration and continuity of the relationship and other
indicia of permanency
In Petachenko, the Virginia Supreme Court made clear that
marital cohabitation "imports the continuing condition of living
together." 	232 Va. at 299, 350 S.E.2d at 602 (emphasis added);
see also Colley v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630,
632 (1963). 	No bright line test of duration has been
established under our case law. 	See, e.g., Penrod, 29 Va. App.
at 98-101, 510 S.E.2d at 245-46 (dispositive evidence included
intimate relationship of more than six years' duration between
former wife and her paramour).3
In addition to specific measures of time, courts have
examined other factors of a more circumstantial nature which
evidence stability and permanency to determine whether
cohabitation has been proved. 	See, e.g., Gordon, 675 A.2d at
548 (community's view of couple's relationship held probative in
determining cohabitation); Iowa v. Kellogg, 542 N.W.2d 514, 518
(Iowa 1996) (whether couple hold themselves out as "husband and
3 In those cases where the parties' definition of the
requisite time is clear, the PSA controls. 	See Douglas, 28
Va. App. at 523, 507 S.E.2d at 101; Jones, 19 Va. App. at
268-69, 450 S.E.2d at 764; Tiffany, 1 Va. App. at 15, 332 S.E.2d
at 799.

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wife" is an element in determining cohabitation).4 Finally, the
other factors to be applied in determining cohabitation, i.e.
common residence, intimate or romantic involvement, and
provision of financial support, may also be probative of the
continuity and duration of a relationship.
We emphasize that, although the enunciated factors provide
discrete categories of evidence relevant to the issue, no one
factor is determinative. 	See Penrod, 29 Va. App. at 101, 510
S.E.2d at 246 (a court's findings "must be based upon evidence
concerning the overall nature of the relationship, not merely a
piecemeal consideration of individual factors"); Frey, 14
Va. App. at 275, 416 S.E.2d at 43 (trial courts must not give
any single factor dispositive effect); cf. Bergman, 25 Va. App.
at 213, 487 S.E.2d at 267 ("cohabit" and "co-reside" are not
synonymous, each having distinct elements and meanings).
Furthermore, it is within the province of the trial court to
determine what weight to accord each of the factors relevant to
the matter presented. 	See Richardson v. Richardson, 242 Va.
242, 246, 409 S.E.2d 148, 151 (1991) (what weight to give the
evidence is within the unique province of the trier of fact).
4 See also Francis v. Francis, 72 Va. (31 Gratt.) 411
(1879). 	Although not a case involving the issue of cohabitation
in the context of divorce, the holding in Francis includes as
relevant circumstantial evidence of cohabitation the
"impression" of persons in the couple's immediate community that
they were married. 	See id. at 413.

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Applying these principles to the instant case, we find the
trial court did not err in determining that the evidence failed
to prove cohabitation. 	The evidence, stated in the light most
favorable to wife as the prevailing party, see Anderson v.
Anderson, 29 Va. App. 673, 677, 514 S.E.2d 369, 372 (1999),
established that wife has been romantically involved in an
exclusive relationship with her paramour since 1989, that their
relationship has been marked by sexual intimacy since 1990, that
they have attended family functions together, that they have
vacationed together, and that they have made frequent visits to
each other's homes. 	Wife's paramour has established a close and
familial relationship with the parties' daughters. 	However, the
evidence failed to prove that wife shared a common residence
with him or that they mutually assumed the duties and
obligations normally associated with a marriage. 	Although
wife's companion undertook some of the household chores while in
her home, scant evidence proved that he financially contributed
to or supported her household in any significant way. 	Evidence
that he loaned money to wife and her children and that he and
wife regularly exchanged gifts is insufficient to establish the
degree of financial interdependence generally associated with
marital relationships. 	Based on this record and the requisite
standard of review, we cannot say the trial court improperly
weighed the factors or that the evidence established

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cohabitation as a matter of law. 	See Konefal v. Konefal, 18
Va. App. 612, 614, 446 S.E.2d 153, 154 (1994).
V.
Husband's final claim on appeal challenges the trial
court's award of attorney's fees to wife. 	Specifically, he
challenges the award of $5,000 for attorney's fees the wife
expended in the successful defense of the husband's motion to
terminate spousal support; $500 for the fees she incurred in the
enforcement of the PSA in a rule to show cause proceeding; and
$10,000 for fees incurred in her defense of an action brought by
husband to set aside the final decree of divorce and its
incorporated PSA on the ground of fraud.
The latter issue is res judicata. 	In an earlier appeal,
the award of $10,000 attorney's fees was determined appropriate
under, and consistent with, the PSA's provision governing such
awards. 	See Pellegrin v. Pellegrin, No. 0765-98-4 (Va. Ct. App.
Nov. 24, 1998) (rehearing denied, Va. Ct. App. Jan. 4, 1999)
(petition for appeal filed in the Supreme Court, Jan. 25, 1999).
The remaining claims with respect to the award of attorney's
fees are controlled by the language of the PSA, which states:
The parties agree that any expenses,
including but not limited to, counsel fees,
court costs, and travel, incurred by a party
in the successful enforcement of any of the
provisions of this Agreement, whether
through litigation or other action necessary
to compel compliance herewith, shall be
borne by the defaulting party. 	Any such

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costs incurred by a party in the successful
defense to any action for enforcement of any
such provisions shall be borne by the party
seeking to enforce compliance.
The award of attorney's fees is normally within the
discretion of the trial court. 	See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). 	We find that the actions
for which attorney's fees were awarded involved the successful
enforcement of the PSA and that the court did not err in making
its award.
For the reasons stated in this opinion, we affirm in part,
and reverse and remand in part, the decision of the trial court.
Affirmed in part,
reversed and
remanded in part.