A man can stop paying support to his ex-wife because she is living with a woman friend in a “relationship analogous to marriage,” the Court of Appeals has found.
The women were not lesbians, just very close friends who lived under the same roof. Their lives were “closely intertwined,” the court said.
The unpublished decision, written by Judge Stephen R. McCullough is Brennan v. Albertson (VLW 012-7-223).
A member of the Coalition for Family Law Legislation, a multi-bar organization that reviews and vets new family law bills every year, predicted that the case will spawn numerous bills, going in several directions.
The couple was divorced in 2007, with the husband, Paul Albertson, agreeing to pay support through 2019. Last year, Albertson sought to end payments, claiming that his ex-wife was in a romantic relationship with another woman.
Virginia Code § 20-109(A) allows a payor spouse to stop support if the payee if “habitually cohabiting with another person in a relationship analogous to marriage.”
The wife, Sheila Brennan, befriended Lisa Baker in 2006 when they met at an Alcoholics Anonymous meeting. Baker became Brennan’s AA sponsor. They went on golf weekends together. Baker moved in with Brennan in November 2007.
Both women testified that they were “like sisters” and that it was a platonic friendship, not a romantic or lesbian relationship.
Brennan bought a new house in 2008 and made Baker a joint tenant with right of survivorship, a move, she testified, would help take care of Baker’s children. The women occupy separate bedrooms in the house. They maintain separate bank, credit card and investment accounts; they each own their own vehicles.
The trial judge, Fairfax Circuit Judge J. Howe Brown, found there was no evidence of sexual intimacy, but concluded this relationship was one “analogous to marriage.”
McCullough, after reviewing the applicable cases, wrote that the absence of sexual intimacy doesn’t preclude such a finding.
The threshold finding under case law, the judge wrote, is that the two people live under one roof, a requirement easily satisfied here.
The court reviewed the other evidence, finding that the women regard the arrangement as permanent or indefinite.
It will be a “rare case where friendly roommates achieve a relationship like the one shown here,” McCullough wrote. But they have lived together for a number of years, they are “greatly interdependent” on one another financially and they “have formed close and lasting social and emotional bonds.”
The majority upheld the trial judge’s finding. And McCullough noted that “nothing in this opinion should be construed as supporting or opposing a conclusion that Code §20-109(A) applies or does not apply to same sex relationships.”
That question was not before the court in the Brennan case and he said the court was not going to raise it sua sponte.
Chief Judge Walter S. Felton dissented in the case, reviewing the legislative history of the code section and later amendments. He said he thought the General Assembly intended only cohabitation between a man and woman to qualify as a relationship analogous to marriage. He would have reversed the trial court finding.
Fairfax lawyer Jacob Alzamora, counsel for Brennan, said that he and his client were reviewing whether to seek a rehearing en banc in the case.
He said that due to the “hot button nature of same-sex marriage” in Virginia, he sought to draft his appeal as narrowly as possible, and to emphasize the nature of the friendship.
Brennan is “not a lesbian and not in a same-sex relationship,” so Alzamora did not seek to argue that issue.
The decision is unpublished, a step the court sometimes takes if a matter is not something new. “But I think it is,” Alzamora said.
Albertson represented himself pro se before the Court of Appeals.
Chesterfield attorney Lawrence D. Diehl said that most of the cases on cohabitation provide a list of factors for analyzing whether the relationship was analogous to marriage. Sexual intimacy is one of them. The court, with this result in Brennan, may be backing away from that point or emphasizing others more, he said.
Charlottesville lawyer Ronald R. Tweel is a member of the Coalition for Family Law Legislation, a group founded by the Virginia Bar Association and the Virginia Trial Lawyers Association, with members from all major bar. The group seeks to ensure good policy for the commonwealth.
Tweel said he is virtually certain the coalition will want to address this case in the 2013 General Assembly session, but he said he couldn’t predict what the result would be.
Some will want to make it easier to make a finding of cohabitation and cut off support; they will advocate removing the word “marriage” in the Code section, he said. Others will agree with Felton and want to spell out that cohabitation must be between a man and woman.
Gay groups will have a difficult time determining which side of the argument to support, Tweel said. While they will not want lesbians or gay men to suffer economic harm, nonetheless they may want to be recognized as a family unit.
Diehl noted that regardless of whether the statute gets changed, a husband has a basis for arguing for cutting off or reducing support.
The case of Hollowell v. Hollowell, 6 Va.App. 417 (1988) was decided before there was the cohabitation statute; the case may have been the trigger for its passage, Diehl said.
But the court there allowed a reduction in support based on economic impact. A ex-spouse living with another person, whether male or female, likely will have changed economic circumstances. That might provide the basis for a motion, Diehl said.