                  COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


FLAVIA DIAZ de TANGER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2017-00-3                 JUDGES SAM W. COLEMAN III
                                               AUGUST 7, 2001
WILLIAM HENRY TANGER, III


          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                  Clifford R. Weckstein, Judge

          Flavia Diaz de Tanger, pro se.

          Harwell M. Darby, Jr. (Glenn, Feldmann,
          Darby & Goodlatte, on brief), for appellee.


     In this domestic relations appeal, we decide whether the

trial judge erred by terminating the spousal support of Flavia

Diaz de Tanger, appellant, pursuant to Code § 20-109(A) for

cohabiting in a relationship analogous to marriage.    The trial

judge found that appellant was and had been habitually cohabiting

with another person in a relationship analogous to a marriage for

one year or more "since July 1, 1997."    Appellant contends that

the trial judge erred by finding that the relationship was

analogous to marriage and in terminating her spousal support

because termination was unconscionable.    She also asserts that the

trial judge erred in failing to accept into evidence certain


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
documents she proffered.   Finding no error, we affirm the trial

judge's decision.

     Appellant and William Henry Tanger, III, appellee, were

divorced in 1981.   The parties did not enter into a property

settlement or other separation agreement that would have affected

spousal support.    By final decree dated November 21, 1996, the

trial judge awarded appellant spousal support of $700 per month.

In July 1999, appellee filed a motion to terminate spousal support

on the ground that appellant had been cohabiting for a period of

at least one year commencing on or after July 1, 1997 with a Mr.

Pringle in a relationship analogous to marriage.   See Code

§ 20-109(A).   Appellant filed a motion to increase the amount of

monthly spousal support.

     On February 25, 2000, the trial judge heard evidence on the

motions which resulted in the trial judge's termination of spousal

support.    Appellant contends that the evidence fails to prove that

her relationship with Pringle was cohabitation analogous to a

marriage.   At the hearing, the evidence proved that appellant has

lived in Pringle's residence since 1995.   Appellant's adult

daughter also resided in Pringle's home for a period of two or

three years.   Appellant pays Pringle no rent, and she pays no

utility bills.    Appellant testified she resides in an apartment

within Pringle's house that is separate from Pringle's living

quarters.    Pringle and appellant testified they do not have a

sexual relationship, and they do not sleep together.

                                - 2 -
     Appellant and Pringle represented that their relationship is

solely a business arrangement.    Pringle, who owns his business,

stated that appellant runs errands for the business and performs

secretarial tasks for him.   He stated that appellant also

corresponds with companies he deals with in Mexico because she

speaks fluent Spanish.   Pringle testified that appellant is

compensated for her services by living rent-free in his residence

and by having limited use of one of his cars.   Pringle stated that

he typically rented the apartment occupied by appellant for $400

per month.   Pringle's business also pays appellant's health

insurance.

     Appellant uses credit cards issued in Pringle's name to

purchase food, to pay for her dental care, and to pay for gasoline

when she drives Pringle's car.    Appellant also pays her athletic

club membership with Pringle's credit card.   A dog belonging to

appellant's daughter was housed at Pringle's residence for about

five years, including several years after the daughter had left

the residence.   Appellant paid the dog's veterinary bills with

Pringle's credit card.

     Pringle testified that appellant is not required to obtain

his permission before using his credit cards, but she must

reimburse him for the items she purchases with his credit card.

Appellant testified she reimburses Pringle in cash for the use of

his credit cards, but she had no records to verify these payments.



                                 - 3 -
     Appellant and Pringle testified they occasionally eat meals

together and have traveled together to Mexico where they stayed

with appellant's family.    Appellant accompanied Pringle to visit

his father after the father had a stroke.    Pringle accompanied

appellant to visit her daughter in Connecticut when the daughter

was recovering from an accident.    Appellant and Pringle have

traveled together to Europe several times.   They testified that

these trips were business trips during which they attended trade

shows related to Pringle's business.

     Appellant testified she does not cook or clean for Pringle.

She does not launder his clothing, and she pays for her own food.

     The trial judge did not believe the testimony of appellant

and Pringle that their relationship was "purely and solely a

business relationship."    The trial judge found that "clear and

convincing evidence" proved that appellant and Pringle "have

habitually been cohabiting with one another in a relationship

analogous to marriage for one year or more commencing on or after

July 1, 1997."   The trial judge stated that he specifically relied

on the appearance and demeanor of the witnesses while they

testified in making this finding.    The trial judge also stated

that, in making his decision, he considered such facts as:

appellant's daughter residing at Pringle's residence for a period

of time; appellant's and Pringle's visits to each other's

families; Pringle providing long term care for appellant's

daughter's dog; and the "extraordinary implausibility of the

                                - 4 -
proposition" that appellant reimbursed Pringle solely in cash

while keeping no business records concerning the transactions.

The trial judge found that the lack of a sexual relationship was

"nearly irrelevant" to the question of whether the cohabitation

was analogous to a marriage.

     At the conclusion of the February 25, 2000 hearing, the trial

judge reserved his ruling on the issue of whether spousal support

would be decreased or terminated.   On May 12, 2000, the trial

judge heard evidence on the issue of whether termination of

appellant's spousal support would be unconscionable. 1

     Appellee testified he earns $380 per week, and his monthly

net income is $529.   Appellee's adjusted income for calendar year

1999 was about $20,000.   Appellee stated that his net worth is

about $100,000, and he presented evidence that his monthly living

expenses reflected a shortfall of several thousand dollars.

     Appellant, who has a college degree in art history and

Spanish literature, testified her income and expenses had not

changed since 1996.   In the past, appellant had been a Spanish

language court interpreter, but she no longer works as a court

interpreter because she failed to pass the certification test.


     1
       The parties agreed to proceed under the terms of Code
§ 20-109(A) as amended and approved by the Governor on April 2,
2000. The General Assembly, in 2000, amended Code § 20-109(A) by
substituting "shall" for "may decrease or" and by substituting "be
unconscionable" for "constitute a manifest injustice." See 2000
Va. Acts, ch. 218.



                               - 5 -
Appellant stated she has no money in the bank, owns no real

estate, and holds no credit cards.     She testified that Pringle

does not give her financial support, and she has been unable to

find employment other than with Pringle.    Appellant admitted that

subsequent to 1996 she has made only four telephone calls in

search for employment and those were to friends.    Appellant

testified that Pringle no longer allowed her to use his credit

cards.   Otherwise, she continued to live at Pringle's home under

the same arrangement.

     The trial judge found that appellant failed to meet her

burden of proving that termination of her spousal support would be

unconscionable.

     At the May 12, 2000 hearing, appellant proffered a binder of

documents that she asserted were relevant to the issue of

unconscionability.   The trial judge refused to admit the documents

into evidence, ruling that all documents were either already in

the record or were irrelevant to unconscionability.    Appellant

appeals the trial judge's rulings.

                  TERMINATION OF SPOUSAL SUPPORT

     Code § 20-109(A) provides:

           Upon petition of either party the court may
           increase, decrease, or terminate the amount
           or duration of any spousal support and
           maintenance that may thereafter accrue,
           whether previously or hereafter awarded, as
           the circumstances may make proper. Upon
           order of the court based upon clear and
           convincing evidence that the spouse
           receiving support has been habitually

                               - 6 -
           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 unless (i) otherwise
           provided by stipulation or contract or (ii)
           the spouse receiving support proves by a
           preponderance of the evidence that
           termination of such support would be
           unconscionable.

     Appellant contended on brief and at oral argument that this

Court's panel decision in Rubio v. Rubio, 33 Va. App. 74, 531

S.E.2d 612, reh'g en banc granted, mandate stayed, 33 Va. App.

440, 534 S.E.2d 336 (2000), controls this case.    The panel held

in Rubio that Code § 20-109 did not apply retroactively to

spousal support decrees entered before July 1, 1998.      Id. at 77,

531 S.E.2d at 613-14.   The panel decision in Rubio was stayed

pending an en banc decision.     Rubio has been decided en banc and

that decision vacated the panel's decision upon which appellant

relies.   See Rubio v. Rubio, ___ Va. App. ___, ___, ___ S.E.2d

___, ___ (2001) (en banc).     Furthermore, the en banc holding in

Rubio does not control or affect our decision in the present

case since no spousal support agreement exists between the

parties here.   The Rubio decision held that the terms of the

spousal support agreement controlled so that the cohabitation

disqualifier in Code § 20-109(A) did not apply.     Id.

                In 1998, the legislature "amended and
           reenacted" Code § 20-109(A), adding the
           words "the amount or duration of any" to the
           first sentence. See 1998 Va. Acts, ch. 604.
           The Act specifically provided "[t]hat
           Section 20-109 of the Code of Virginia [is]

                                 - 7 -
          . . . reenacted as follows." Id. It
          further provided "[t]hat the provisions of
          this Act shall apply only to suits for
          initial spousal support orders filed on or
          after July 1, 1998, and suits for
          modification of spousal support orders
          arising from suits for initial support
          orders filed on or after July 1, 1998." Id.

Rubio, ___ Va. App. at ___, ___ S.E.2d at ___.

     Our decision is controlled by the effect of Code

§ 20-109(A) upon support decrees entered before July 1, 1998,

the effective date of the cohabitation disqualification where no

spousal support agreement exists between the parties.

Significantly, the General Assembly in its 2001 session, as a

result of the panel's decision in Rubio, passed Senate Bill 1014

and House Bill 2215, amending and reenacting Code § 20-109.     See

2001 Va. Acts, chs. 725 and 740.    The Governor signed these

bills into law on March 26, 2001.   Although those bills were

enacted during the pendency of the present suit, they did not

change the provisions of Code § 20-109 as applied to this case.

Rather, the 2001 Acts of the General Assembly were clarifying

and declaratory of existing law.

     Furthermore, by 2001 Va. Acts, ch. 720, the General

Assembly provided:

          Be it enacted by the General Assembly of
          Virginia:

          1. That the Code of Virginia is amended by
          adding a section number 1-13.39:3 as
          follows:




                              - 8 -
          § 1-13.39:3. Statutory construction of
          titles and enactment clauses.

          Whenever the word "reenacted" is used in the
          title or enactment of a bill or act of
          assembly, it shall mean that the changes
          enacted to a section of the code of Virginia
          or an act of assembly are in addition to the
          existing substantive provision in that
          section or act, and are effective
          prospectively unless the bill expressly
          provides that such changes are effective
          retroactively on a specified date.

          The provisions of this section are
          declaratory of existing public policy and
          law.

          2. That the provisions of this act are
          intended to reverse the ruling in Rubio v.
          Rubio, 33 Va. App. 74, 531 S.E.2d 612
          (2000).

          3. That an emergency exists and this act is
          in force from its passage.

(Emphasis added).   This Act states plainly the legislative

intent that the limitation upon application set forth in 1998

Va. Acts, ch. 604, addressed only the amendments effected by

that Act and, with respect to Code § 20-109(A) applied only to

the language "the amount or duration of any" that was added to

the first sentence.

     Moreover, both chapters 725 and 740 of the Acts of Assembly

contain the following sentence after the last line of

Code § 20-109(A)(ii):   "The provisions of this subsection shall

apply to all orders and decrees for spousal support, regardless

of the date of the suit for initial setting of support, the date

of entry of any such order or decree, or the date of any


                               - 9 -
petition for modification of support."    Therefore, the

legislature's latest revision of Code § 20-109 controls this

case.    The statute makes clear that its provisions including the

clarification that no time limitation relates to the forfeiture

provision for "cohabitation analogous to a marriage," apply to

this case.

        Under familiar principles, "we construe the evidence in the

light most favorable to [appellee], the prevailing party below,

granting to him all reasonable inferences fairly deducible

therefrom."     Rogers v. Yourshaw, 18 Va. App. 816, 818, 448

S.E.2d 884, 885 (1994) (citation omitted).

        We find that the trial judge did not err in terminating

appellant's spousal support award.

             [T]he phrase, "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. It involves more than
             living together for a period of time and
             having sexual relations, although those
             factors may be significant; "[i]t also
             imports the continuing condition of living
             together and carrying out the mutual
             responsibilities of the marital
             relationship."

Frey v. Frey, 14 Va. App. 270, 275, 416 S.E.2d 40, 43 (1992)

(citations omitted).    Cohabitation is also defined as "[t]he

fact or state of living together, esp. as partners in life, usu.

with the suggestion of sexual relations."     Black's Law

Dictionary 254 (7th ed. 1999).

                                - 10 -
     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.

Pellegrin v. Pellegrin, 31 Va. App. 753, 764-66, 525 S.E.2d 611,

616-17 (2000).   "[A]lthough 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.      "[I]t

is within the province of the trial [judge] to determine what

weight to accord each of the factors relevant to the matter

presented."    Id.

     Credible evidence supported the trial judge's finding that

appellant cohabited with Pringle in a relationship analogous to

marriage for one year commencing on or after July 1, 1997.

Appellant has lived in Pringle's residence since 1995.     She

receives in-kind rent, ostensibly in exchange for performing

secretarial duties for Pringle.   She makes no utility payments.

Appellant's daughter and dog also resided in Pringle's house for

several years.   Appellant used Pringle's credit cards and his

car for her personal use.   Although she stated that she

reimbursed Pringle in cash when she used his credit cards, she

produced no records of those payments.   Appellant and Pringle

traveled together to visit their families.   In addition,

appellant and Pringle traveled together to Europe on several

occasions.    Although appellant and Pringle testified that those

                               - 11 -
trips were for business purposes only, the trial judge did not

accept their testimony that their relationship was "purely and

solely a business relationship."   "The credibility of the

witnesses and the weight accorded the evidence are matters

solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented."      Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

     "A finding of 'cohabitation' must be based upon evidence

concerning the overall nature of the relationship, not merely a

piecemeal consideration of individual factors such as its sexual

or financial components."   Penrod v. Penrod, 29 Va. App. 96,

101, 510 S.E.2d 244, 246 (1999).   Viewed as a whole, the

evidence supports the trial judge's finding that appellant and

Pringle cohabited in a relationship analogous to marriage.

     Furthermore, appellant failed to prove that termination of

spousal support was unconscionable.     "[U]nconscionability is

. . . concerned with the intrinsic fairness . . . in relation to

all attendant circumstances, including the relationship and

duties between the parties."   Derby v. Derby, 8 Va. App. 19, 28,

378 S.E.2d 74, 78 (1989) (interpreting validity of a separation

agreement).

     The trial judge heard evidence of the parties' financial

needs and financial circumstances.      Although appellant asserts

she can find no employment other than with Pringle, she has a

college degree and is bilingual.   She also admitted that she had

                               - 12 -
made only four telephone calls to friends in her search for

other employment.   Furthermore, under her arrangement with

Pringle, appellant pays no rent, no utilities, no car payments,

and no real estate taxes.    Pringle's business pays for her

health insurance coverage.    In other words, appellant has few

living expenses.

     Moreover, appellee represented that his net monthly income

was $529 and his adjusted income for the year 1999 was about

$20,000.   Based upon the evidence presented, particularly in

light of appellee's ability to pay in relation to appellant's

financial needs, the trial judge did not err in ruling that the

termination of spousal support was not unconscionable.

                        PROFFERED EVIDENCE

     At the May 12, 2000 hearing, appellant proffered documents

that she contends address the issue of whether the termination

of her spousal support is unconscionable.    Appellant's counsel

conceded at the time of the proffer that "the majority of it is

information that [appellant] has gone back and gleaned from the

record . . . ."

     The first document in the binder is a biographical history

of appellant's family background and a history of her

relationship with appellee.   In general, other materials in the

binder include marriage documents, and pleadings and depositions

from other lawsuits between the parties and lawsuits involving

one of the parties.   The binder also includes flyers from trade

                               - 13 -
shows, miscellaneous newspaper articles, and miscellaneous

correspondence.

     The trial judge ruled that, to the extent that the

documents had previously been made a part of the record, those

documents were "a part of the record already."    Furthermore, the

trial judge ruled that the materials were "far afield about

matters that have gone on over the last thirty years or so."

Concerning appellant's biographical narrative, the trial judge

stated, "[U]pon a cursory look at this narrative, [it] seem[s]

not to have anything to do with economic impact and seem[s] to

be set forth in an effort to incline the reader against

[appellee] and in favor of [appellant] . . . ."    The trial judge

ruled that if he admitted the proffered materials into evidence,

appellee would then be allowed to submit materials in rebuttal,

and those materials would be "just as far afield and just as

irrelevant as the initial material."

     Evidence ordinarily is admissible if it "is both material--

tending to prove a matter that is properly at issue in the

case--and relevant--tending to establish the proposition for

which it is offered."   Johnson v. Commonwealth, 2 Va. App. 598,

601, 347 S.E.2d 163, 165 (1986).   We find that the materials are

either irrelevant and immaterial to the issue of

unconscionability, or are cumulative of evidence properly before

the trial judge from the testimony of the witnesses and from

documents previously made a part of the record.    Therefore, the

                              - 14 -
trial judge did not err in refusing to admit the proffered

materials into evidence.

     Accordingly, the judgment of the trial judge is affirmed.

                                                       Affirmed.




                             - 15 -
