                             COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge Clements and Senior Judge Coleman
Argued at Alexandria, Virginia


TIM PRICE O’HARA

v.     Record No. 0038-04-4

SANDRA H. O’HARA                                                    OPINION BY
                                                             JUDGE SAM W. COLEMAN III
SANDRA H. O’HARA                                                    JUNE 7, 2005

v.     Record No. 0087-04-4

TIM PRICE O’HARA


                   FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                               Jeffrey W. Parker, Judge

               Robin C. Gulick (T. Huntley Thorpe, III; Gulick, Carson & Thorpe,
               P.C., on briefs), for Tim Price O’Hara.

               Ann M. Callaway for Sandra H. O’Hara.


       Tim Price O’Hara (husband) appeals a decision of the trial court denying his petition to

terminate his spousal support obligation. On appeal, husband contends the trial court erred by:

(1) ruling husband had the burden to prove by clear and convincing evidence that Sandra H.

O’Hara (wife) habitually cohabitated with another person in a relationship analogous to marriage

for more than one year; (2) failing to grant the petition to terminate spousal support pursuant to

the terms of the parties’ property settlement and separation agreement; and (3) failing to award

husband attorney’s fees. Wife filed a cross-appeal, contending the trial court erred by: (1) ruling

that the exception to the termination of spousal support providing for “unconscionability” of

termination as set forth in Code § 20-109(A) was inapplicable to the case; and (2) finding wife is

employable.
       We hold the trial court applied the incorrect burden of proof in determining whether wife

habitually cohabitated with another person in a relationship analogous to marriage for one year

or more. Accordingly, we reverse and vacate the trial court’s decision not to terminate

husband’s spousal support obligation. We remand the case to the trial court for consideration of

the issue applying the preponderance of the evidence burden of proof.

                                           Background

       Husband and wife were married in 1981. The parties separated in 1998. On February 8,

2000, they entered into a property settlement and separation agreement (PSA) which was

affirmed, ratified, and incorporated, but not merged into the final divorce decree dated March 9,

2000. In paragraph 5(A) of the PSA, the parties agreed husband would pay wife $1,750 per

month in spousal support

               until the death of [w]ife, the death of [h]usband, [w]ife’s
               remarriage, [w]ife’s habitual cohabiting with another person in a
               relationship analogous to a marriage for one year or more, or until
               further order of a court of competent jurisdiction based upon a
               proper petition filed by either party based upon a material change
               in circumstances.

(Emphasis added.)

       In February 2003, husband filed a petition to terminate spousal support pursuant to the

cohabitation provision of the PSA, alleging wife had been cohabitating in a relationship

analogous to marriage with Donald Sowers, Jr. for more than one year. Alternatively, husband

requested a modification of the support award based upon a material change of circumstances,

asserting that wife was currently gainfully employed.

       At the November 5, 2003 evidentiary hearing, Sowers testified he had known wife for

about three and one-half years. Sowers had listed wife’s address as his address on numerous

court documents dating from November 2001 to October 2002. He indicated on court

documents requesting court-appointed counsel that he was unemployed and had no income. A

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document entitled Pretrial Services Court Report specified Sowers’s address as the street address

of wife. In the same document, Sowers indicated he had lived at that address for two years and

that he lived with wife, whom he referred to in the document as his “significant other.”

        Sowers testified he resided with wife “on and off” since October 2000, stating he had no

permanent residence and he moved from place to place, living with friends and relatives. He

stated he used wife’s residence as his mailing address for court related documents. Sowers

testified he has cooked meals for wife and has performed maintenance on her property. He

stated he slept in the same bedroom with wife and had sexual intercourse with her during part of

their relationship.

        Carrie Pearson, Sowers’s probation officer, testified that Sowers had indicated to people

in her office that his address was the same street address as wife’s. Pearson met with Sowers on

twelve occasions between February 2002 until the end of 2002. At every meeting she asked if he

had changed his address. Sowers never indicated, as was required as a condition of his

supervision, that his address had changed. Pearson stated that over the two-year period her

office supervised Sowers’s probation, he never indicated a change in address.

        In November 2001, Deputy John Cox of the Fauquier County Sheriff’s Office answered a

domestic assault call from wife’s residence. Cox testified that wife told him that Sowers was her

“live-in boyfriend.” Later, in a sworn affidavit that was part of a criminal complaint wife filed

against Sowers in May 2002 she referred to Sowers as her “boyfriend of three years.” Wife

admitted that she told the magistrate Sowers was her “live-in boyfriend” or her “cohabitor.” In

January 2003, wife listed Sowers as an emergency contact in her employer’s personnel records,

referring to him as her “significant other.” The emergency contact information for Sowers listed

wife’s telephone number and her post office box as where Sowers could be contacted. At one




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time, the message on wife’s answering machine contained wife’s greeting stating, “Donnie and I

aren’t here. Please leave a message.”

       Wife testified that Sowers first began staying at her residence in October 2000 during

which time they were sexually intimate. She stated that Sowers lived with her “off and on” and

only “continuously” resided with her “basically from February 2001 until November 2001.”

Subsequently, they had tried to “patch things up” on several occasions during which time Sowers

periodically would stay at her residence for several days. Wife stated that in May 2002, the

relationship ended when Sowers was seeing another woman.

       Wife testified that Sowers “sometimes” cooked for her and that they ate meals together.

She stated Sowers helped with “some heavy work” on her property and she did not compensate

him for that work. She gave Sowers permission to use her mailing address for court documents,

and she posted a $1,000 bond for Sowers on one occasion. Wife testified both she and Sowers

contributed money for groceries, but Sowers did not pay any monthly living expenses. She did

not share any bank accounts with Sowers, who she said was employed sporadically during their

relationship.

       Several neighbors of wife testified that over the past three or four years, they have seen

Sowers working on wife’s lawn, shopping with her at the grocery store, sitting on wife’s porch,

eating dinner with wife at local restaurants, and riding in wife’s vehicle. Husband testified that

he had been to wife’s residence twice since their separation and Sowers was present both times.

       Wife has numerous health problems which she contends make it difficult for her to be

employed full time. She pays more than $400 per month for health insurance, which she says

will end in March 2005. She testified the Social Security Administration has declared her totally

disabled for which she receives $799 per month in Social Security disability benefits. Also, wife

received $177 per week in unemployment benefits for the weeks she qualified. In 2002, wife


                                                -4-
earned “about” $10,000, but she said the $10,000 included business expenses and her net income

was about $4,500. In 2003, she was employed as a “permit runner” for a deck construction

company from January until August, earning approximately $2,500 per month. Wife’s employer

terminated her employment in August 2003 after a disagreement concerning wife’s

compensation. Wife testified she had worked in order to obtain health insurance and she planned

to quit as soon as she qualified for health insurance.

        The trial court found that wife and Sowers had cohabitated, however, the court held that

it could not “find by clear and convincing evidence that this is a relationship analogous to

marriage.” The trial court cited as factors in its decision the lack of an expression of a

commitment between wife and Sowers and the lack of financial contributions to the relationship

by Sowers. The trial court further stated it was a “close case” and that had it applied a

preponderance of the evidence burden of proof, the court “might be persuaded” that the

relationship was analogous to a marriage. Thus, using the clear and convincing standard, the

trial court denied husband’s petition to terminate spousal support.

        The trial court found, however, that a material change in circumstances had occurred

warranting a reduction in the amount of wife’s spousal support award. The trial court found that,

despite wife’s serious medical issues, she is employable and that she was terminated from her

last job due to a disagreement with her employer, not because she was physically unable to work.

The court imputed annual income of $12,000 to wife, considered husband’s current income, and

reduced wife’s monthly spousal support award from $1,750 to $1,200, effective November 1,

2003.

        The trial court also ruled that the unconscionability provision of Code § 20-109(A)(ii) did

not apply, and the court denied husband’s request for attorney’s fees. Both parties objected to

the trial court’s final decisions and filed appeals in this Court.


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                                             Analysis

       The trial court ruled that, in determining whether wife had cohabited with Sowers in a

relationship analogous to marriage, the provisions of Code § 20-109(A) applied and that husband

had to prove the cohabitation by clear and convincing evidence. Husband argues that his petition

for termination of spousal support was governed by the terms of the parties’ PSA, not by Code

§ 20-109(A). Therefore, he contends the court erred by determining that husband had to prove

cohabitation by clear and convincing evidence, rather than the contractual standard of a

preponderance of the evidence. We agree with husband.

       Code § 20-109(A) provides in pertinent part:

               Upon order of the court based upon clear and convincing evidence
               that the spouse receiving support has been habitually 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.

       The parties entered into a PSA which was affirmed, ratified, and incorporated into the

March 9, 2000 final divorce decree. Thus, the final decree “embodied and enforced . . . a

negotiated agreement between the parties vesting” husband with a “contractual right” to

terminate wife’s spousal support in the event that wife habitually cohabitated with another

person in a relationship analogous to a marriage for one year or more. See Baldwin v. Baldwin,

44 Va. App. 93, 98, 603 S.E.2d 172, 174 (2004). See also Hering v. Hering, 33 Va. App. 368,

374, 533 S.E.2d 631, 634 (2000) (“the parties’ agreement, which was affirmed and incorporated,

but not merged, into the final decree, remained a separate, enforceable, contractual obligation”).

Furthermore, “[t]he decree’s contractual character places it within the general rule recognizing

that vested contractual rights – whether incorporated by, memorialized in, or merged into a final

decree – ‘cannot be judicially modified or terminated at the unilateral request of a contract party

                                                -6-
unless the agreement expressly authorizes such relief.’” Baldwin, 44 Va. App. at 99, 603 S.E.2d

at 174 (quoting Newman v. Newman, 42 Va. App. 557, 568-69, 593 S.E.2d 533, 539 (2004)

(en banc)).

       The PSA, which was affirmed, ratified, and incorporated into the final decree, expressly

authorized the termination of spousal support if wife habitually cohabited with another person in

a relationship analogous to a marriage for one year or more. Husband filed the petition for

termination of spousal support pursuant to the PSA, which we note does not reference Code

§ 20-109(A). Accordingly, Code § 20-109(A), and its clear and convincing burden of proof,

does not apply to this case involving the enforcement of a negotiated agreement between

husband and wife. Rather, because this case involves an action to enforce a contract between the

parties, husband’s burden was to prove by a preponderance of the evidence that wife habitually

cohabited with another person in a relationship analogous to a marriage for one year or more, not

to prove cohabitation by clear and convincing evidence. See Hammers v. Hammers, 216 Va. 30,

31, 216 S.E.2d. 20, 21 (1975); Crosby v. Crosby, 182 Va. 461, 464, 29 S.E.2d 241, 242 (1944).

Therefore, the trial court applied the incorrect evidentiary standard when considering this issue.

Accordingly, we reverse and vacate the trial court’s holding and remand the case to the trial

court for reconsideration of this issue using the preponderance of the evidence burden of proof.

       We also note that this case is distinguishable from Hardesty v. Hardesty, 40 Va. App.

663, 581 S.E.2d 213 (2003) (en banc). In Hardesty, the parties signed a PSA which was

“affirm[ed], ratif[ied] and incorporate[d]” into the final divorce decree. Id. at 666, 581 S.E.2d at

215. The Hardesty PSA provided that spousal “support cannot be terminated for any reason.”

Id. at 665, 581 S.E.2d at 215. Mrs. Hardesty filed an action with the trial court seeking a

declaratory judgment holding that the PSA precluded the termination of spousal support upon

her remarriage. This Court affirmed the trial court’s ruling that spousal support would terminate


                                                -7-
upon Mrs. Hardesty’s remarriage pursuant to the terms of Code § 20-109. We stated: “‘The

public policy clearly declared by Code §§ 20-109 and 20-109.1 is that spousal support does not

survive the recipient’s remarriage. To create an exception to that policy, the agreement must be

equally clear.’” Id. at 668, 581 S.E.2d at 216 (quoting Langley v. Johnson, 27 Va. App. 365,

371-72, 499 S.E.2d 15, 18 (1998)). Thus, Hardesty held that the public policy underlying

termination of spousal support upon remarriage as provided in Code § 20-109(D) could not be

overcome by the general proposition prohibiting termination “for any reason.” Here, no public

policy is at play that draws the statutory and contractual provisions, both of which provide for

termination upon cohabitation analogous to marriage, into conflict with one another. The

provisions of the PSA and Code § 20-109(A) are compatible with one another as to their purpose

and function. They differ as to what burden of proof rests with the proponent. Therefore,

Hardesty is inapplicable to the analysis of this case.

       Because we remand the case to the trial court for a determination of the first issue using

the preponderance of the evidence standard, we do not address husband’s second issue--whether

under either the preponderance of the evidence or the clear and convincing evidence burden of

proof, the evidence showed wife cohabitated with Sowers in a relationship analogous to marriage

for more than one year. We are not prepared to say on this record that, as a matter of law, wife

habitually cohabitated with Sowers in a relationship analogous to marriage for more than one

year. That is a factual determination that the trial court must consider upon conflicting evidence

upon remand.

       Because we have found that Code § 20-109 does not apply to this case, we do not address

wife’s first issue raised in her cross-appeal–whether the trial court erred by ruling that the

“unconscionability” provision of Code § 20-109(A)(ii) is inapplicable to this case.




                                                -8-
       Wife also contends the trial court erred by finding that she is employable despite a

declaration from the Social Security Administration that she is totally disabled.

       The declaration of the Social Security Administration was not dispositive of whether the

trial court properly imputed income to wife. “[A] court may impute income to a party who is

voluntarily unemployed or underemployed. Imputation of income is based on the principle that a

spouse should not be allowed to choose a low paying position that penalizes the other spouse

. . . .” Calvert v. Calvert, 18 Va. App. 781, 784-85, 447 S.E.2d 875, 876-77 (1994) (citations

omitted).

                        Whether a person is voluntarily unemployed or
               underemployed is a factual determination. In evaluating a request
               to impute income, the trial court must “consider the [parties’]
               earning capacity, financial resources, education and training,
               ability to secure such education and training, and other factors
               relevant to the equities of the parents and the children.”

Blackburn v. Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999) (citation omitted).

“Imputation of income is within the trial [court]’s discretion . . . .” Sargent v. Sargent, 20

Va. App. 694, 704, 460 S.E.2d 596, 601 (1995).

       The evidence showed that wife was employed in a full time job for about seven months in

2003 and the job terminated due to a disagreement between wife and her employer concerning

her compensation. Therefore, wife did not leave her employment for health reasons. Although

the evidence shows wife has serious health issues, we cannot say the trial court abused its

discretion by finding that wife is able to be employed and imputing to her an income of $12,000

per year, which the court based on an average of wife’s income over the past several years.

       Husband contends the trial court erred by denying his request for attorney’s fees on the

ground that the PSA provides that “[i]n the event one of the parties defaults in the performance

of any of the provisions of [the PSA], the defaulting party will indemnify the other party for all

reasonable expenses and costs, including any attorney’s fees, incurred in successfully enforcing

                                                -9-
the terms of [the PSA].” The trial court ruled that husband was not entitled to attorney’s fees

because his action to modify and terminate spousal support was not an attempt to enforce a

“default in the performance” of the PSA. Rather, the trial court viewed the matter as “a

proceeding to modify the existing support arrangements [based upon contractual provisions in

the PSA, but was] . . . not the enforcement of a default” in performing the PSA. Accordingly,

the trial court ruled that husband was not entitled to attorney’s fees pursuant to the terms of the

PSA.

       Husband’s request for attorney’s fees is governed by the express provisions of the PSA

for attorney’s fees. See Rutledge v. Rutledge, 45 Va. App. 56, 67, 608 S.E.2d 504, 509 (2005)

(applying Code § 20-109(C) and affirming the trial court’s denial of attorney’s fees in

accordance with the terms of the parties’ PSA). Here, paragraph 14 of the PSA, which expressly

provided for reasonable attorney’s fees “[i]n the event that either party defaults in the

performance of any of the provisions of [the PSA],” is not applicable because this was not an

action enforcing a default in the terms of the PSA. (Emphasis added.) We agree with the trial

court’s ruling that this case involves a proceeding to modify or terminate the spousal support

award as provided by the PSA but was not a proceeding to enforce a default. Accordingly, the

trial court did not err by refusing to award attorney’s fees based upon the provisions in the PSA.

       For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in

part, and remanded for proceedings consistent with this opinion.

                                                                      Affirmed in part,
                                                                      reversed in part
                                                                      and remanded.




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