Ending support to cohabitating party not unconscionable

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Where the ex-wife was receiving spousal support while habitually cohabitating with another person “in a relationship analogous to a marriage for one year or more,” Code § 20-109, the trial court erred by reducing the support award instead of terminating it.

The statute provides that support “shall” be terminated unless it is unconscionable to do so. Termination is not unconscionable under the facts and circumstances of this case.

Background

Conley moved to terminate his court-ordered monthly support payments to Bonasera under Code § 20-109 because she cohabited with D.P. in a relationship analogous to marriage for a period exceeding one year. The statute provides that support “shall” be terminated under these circumstances unless it would be unconscionable to do so.

Conley and Bonasera’s marital property includes ownership interests in three window installation franchises. “Conley acknowledged that his total income for 2016 was $666,492, an increase from 2015. … The court determined that Conley’s 2017 income was approximately $500,000, based on his salary and added business benefits.

“The court found that Bonasera’s 2017 income was $191,200, before spousal support. Her income was comprised of disbursements and her salary from the company.”

The court concluded that Conley had established Bonasera’s cohabitation with D.P. but determined that ending Bonasera’s support would be unconscionable. The court instead reduced Conley’s support obligation to $4,000 per month and declined to award him attorney’s fees. Conley appealed.

Analysis

“The court found that Bonasera had been ‘habitually cohabiting with [D.P.] in a relationship analogous to a marriage for one year,’ a conclusion clearly supported by the evidence. She does not contest the finding on appeal.

“Conley argues that therefore, based on a plain reading of Code § 20-109(A), the court erred by merely reducing, not terminating, Bonasera’s spousal support. He disputes the court’s decision that termination of spousal support would be unconscionable. He contends that his argument is supported by evidence showing that Bonasera’s income of $191,200 sufficiently met her needs and that she financially supported D.P. …

“This Court has not had occasion to interpret the term ‘unconscionable,’ as used in Code § 20-109(A). The issue of unconscionability primarily has arisen in the context of a challenge to a property settlement or marital agreement. With the exception of provisions related to custody and support of children, such ‘agreements are contracts subject to the same rules of formation, validity, and interpretation as other contracts.’”

We have previously held “that ‘gross disparity in conjunction with pecuniary necessity on the part of the disadvantaged spouse establishes unconscionability.’ … Here, the court found that Window World ‘provides the basis of the income for both parties.’ Because of the ‘change in the ownership of the business [that] now provides … Conley with 75% ownership as opposed to the 25% ownership at the time of the divorce, [Conley] controls the amount of all monies paid to both himself and … Bonasera.’

“Despite the evidence showing that Conley determines the timing and amount of the distributions, he cannot take a distribution without giving Bonasera one. Further, Bonasera’s fears that Conley will suspend distributions are speculative. She admitted that she has been receiving distributions since the end of 2016.

“The distributions have been made on an almost monthly basis since 2017. Bonasera also receives an annual salary of $31,200, despite not working at the business. There was no evidence that Conley controls the amount of her salary or that it is potentially subject to being eliminated. Bonasera’s financial situation differs starkly from the facts of prior cases where marital agreements were found unconscionable. …

“Termination of spousal support in this case would not leave Bonasera destitute. Bonasera regularly receives an annual salary of $31,200, in addition to distributions totaling approximately $137,000 in 2016 and $160,000 for 2017; her spousal support is not a ‘pecuniary necessity.’ …

“She is not disabled and has work experience ‘handl[ing] all the inside operations [of a company] from day to day, managing the employees, unloading window trucks, scheduling, [and] dealing with customers.’

“The court noted in its final order that Conley ‘continues to enjoy a high standard of living after his remarriage that includes trips, vacations, and other high levels of spending that are derived from his benefits from the business that are not enjoyed by’ his former wife.

“However, any discrepancy in the benefits the parties derive from their interests in a company as majority and minority stockholders is a matter to be addressed in business litigation, such as a shareholder derivative suit, not an issue to be resolved through spousal support. …

“Bonasera did not present any evidence that her choice to cohabitate with D.P. in a situation analogous to marriage was a decision made due to her necessitous circumstances. On the contrary, the evidence established that D.P. moved into the former marital home, wrote checks from Bonasera’s account, used her credit cards, and the couple had a child together.

“The evidence did not establish gross disparity between the parties in conjunction with Bonasera’s financial need in light of Conley’s ability to pay. Therefore, termination of Bonasera’s spousal support was not unconscionable and the court erred in awarding Bonasera continuing spousal support. …

“[W]e find that under the facts and circumstances of this case, termination of spousal support to Bonasera is not unconscionable; accordingly, we reverse the court, vacate the award of $4,000 per month in spousal support to Bonasera, and remand the case for entry of an order consistent with this holding.

“We affirm the court’s denial of Conley’s attorney’s fees and costs, and we decline to award either party fees or costs on appeal.”

Affirmed in part, reversed in part and remanded.

Conley v. Bonasera, Record No. 1510-19-2, July 21, 2020. CAV (O’Brien) from Henrico County Cir. Ct. (Harris). Jacqueline W. Critzer for appellant, Sarah J. Conner for appellee. VLW 020-7-157, 11 pp. Published.