Next-door neighbors not cohabiting

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An ex-husband’s spousal-support obligations were not extinguished by his former wife’s long-term relationship with a man who ultimately moved in next door to her but maintained his own residence, the court held.

Kathryn Sue Elmore Gobble (Wife) and Mark Lowell Gobble (Husband) were married from 1989 to 2007, when they divorced and executed a post-nuptial agreement. The agreement included a provision obligating Husband to pay Wife $4,500 per month in spousal support. The parties have one Child, born in 1995. In 2016, Husband earned $688,778 from his employment as a senior vice president and managing director at a financial planning office. Wife’s annual salary from her job as a professor is $45,902.

Since 2006, Wife has maintained an exclusive romantic relationship with Jeffrey J. Howard. In 2011, the couple exchanged rings, and Howard posted on Facebook that they were engaged, but they did not get married. Howard refers to himself as Child’s stepfather and to his own children as Child’s stepsiblings.

In 2013, Howard purchased the lot adjoining Wife’s property. Howard and Wife built a path between their houses, and Howard regularly keeps his vehicle at Wife’s house. Husband’s private investigator observed that, during various periods of 2014 to 2015, Howard spent approximately half the nights observed at Wife’s house. Howard never spent the night or parked his car at Wife’s house when Child was in town. The investigator also observed Howard changing clothes and taking out the trash at Wife’s house. At trial, Wife testified that, due to Howard’s need for a C-PAP machine, they have not spent a night together since 2015.

Howard eats approximately 25 meals per month at Wife’s house. He cleans the gutters, shovels snow, cares for her dog, fixes plumbing issues, paints, and often cooks. Howard also does yard work for Wife and keeps a garage full of tools, yard equipment, bicycles, kayaks, and a boat on Wife’s property. However, for the last two years he has kept only a toothbrush at Wife’s house. He does not have a key to Wife’s house or receive mail there.

Wife and Howard take family vacations together and spend the holidays at each other’s parents’ houses. The couple does not share checking, savings, or investment accounts. In short, the couple does not share finances beyond the occasional meal or similar joint-tab item.

Husband moved to terminate or reduce spousal support based on the contention that Wife has been habitually cohabiting with another person in a relationship analogous to marriage for one year or more.

Cohabitation

Wife is not cohabiting with Howard in a relationship analogous to marriage. The threshold question to determining cohabitation is whether the parties share a common residence. A common residence is analyzed according to factors such as the number of nights spent at the couple’s respective homes, whether each has a key to the other’s home, the type and number of personal items kept at the other’s home, and the type of shared household responsibilities borne by the couple at their respective homes.

Several Virginia cases are instructive. In Pellegrin v. Pellegrin, 31 Va. App. 753 (2000), the court of appeals held that cohabiting individuals must live together in the same house as married persons live together. In that case, even though the couple had been in an exclusive sexual relationship for 10 years, had attended family functions together, had frequently visited each other’s homes, and had established a close familial relationship with each other’s children, they did not share a common residence. Although the wife’s companion occasionally did household chores while in her home, scant evidence indicated that he financially contributed to or supported her household in any significant way.

In Cranwell v. Cranwell, 59 Va. App. 155 (2011), the wife lived in Virginia and her boyfriend lived in California. They visited each other often and kept a small number of personal items at each other’s homes. The court of appeals concluded that failure to share a common residence means the parties are not cohabitating. In Cranwell, the couple was set up for visits but not for living together; they kept only incidental items at each other’s houses, and neither had a key to the other’s house.

In Kellog v. Kellog, 2013 Va. App. LEXIS 244 (Nov. 26, 2013), the wife spent two-five nights per week at her boyfriend’s house, and he spent one night a week at her house. The boyfriend did not have a key to the wife’s residence, but she had unfettered access to his condo and a personal parking space there. However, the wife kept only a few toiletries at the condo, and the boyfriend kept only a toothbrush at her house. They occasionally purchased groceries for each other, prepared meals together, and shared responsibility for the wife’s dog. The trial court found it a “close call,” but concluded the couple was not cohabitating. The court of appeals affirmed, reasoning that the wife and boyfriend did not assume the duties normally associated with marriage, did not keep clothing or receive mail at the other’s residence, kept their finances separate, and split the costs when they traveled together.

By contrast, in Stroud v. Stroud, 49 Va. App. 359 (2007), the court of appeals found that the couple was cohabitating. The wife and her girlfriend each owned separate residences, but the girlfriend spent five nights per week at the wife’s home; kept clothes, toiletries, and personal files there; washed her clothes and dishes there; and had a key to the home. The girlfriend ate meals there and merely visited her own home, which she rented to a third party. The wife never visited the girlfriend’s home. Further, the couple shared some financial obligations and each considered the other’s family to be her own family, indicating continuity and indicia of permanency.

Under these precedents, Husband has failed to show by a preponderance of the evidence that Wife and Howard have cohabitated. Wife and Howard do not share a common residence. While it is clear that the couple is set up for more than occasional visits as in Cranwell, they do not live together as the couple in Stroud. For the last two years, the couple has had no overnights. There is no evidence that Howard uses Wife’s house when she is not home. The personal items Howard keeps at Wife’s house are transient in nature.

In addition, Howard does not regularly take on the household duties of a married person. It is common for homeowners to get help with the type of work that Howard has done for Wife; by contrast, there is no evidence he cleans bathrooms, vacuums, washes windows, takes the dog for grooming, or any other of a myriad of regular household chores that would be shared by a married couple. His occasional help with outdoor needs or the occasional taking out of the trash, washing dishes, or cooking dinner do not arise to the level of assuming duties regularly associated with marriage.

The purpose of spousal support is to prevent income and standard of living disparities as a marriage relationship transitions into two independent lives. The purpose of the termination statute is to prevent a divorced person from receiving a windfall and having two spousal-like sources of maintenance and support. This is not the case here because Wife and Howard do not live in a marriage-type relationship.

The physical proximity of each person’s dwelling is not at issue here. A dating couple could live under the same physical roof in separate apartments or townhouses and not be sharing a common residence. Conversely, a couple could live in dwellings across the country and share a residence, depending on their habits. It is not the proximity of their homes but rather their interactions which indicate whether they are sharing a common residence. Their interactions do not support that conclusion and, thus, Husband’s motion to terminate spousal support is denied.

Gobble v. Gobble, Case No. CL06-317-01, Jan. 23, 2018; Salem Cir. Ct. (Dorsey). VLW 018-8-006, 15 pp.