                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, O’Brien and Senior Judge Frank
            Argued by teleconference
PUBLISHED




            MATTHEW THOMAS CONLEY
                                                                                 OPINION BY
            v.       Record No. 1510-19-2                                 JUDGE MARY GRACE O’BRIEN
                                                                                 JULY 21, 2020
            BRENDA LYNN BONASERA


                                 FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                              L.A. Harris, Jr., Judge

                            Jacqueline W. Critzer (Bowen Ten Cardani, PC, on brief),
                            for appellant.

                            Sarah J. Conner (Rick A. Friedman, II; Lindsay G. Dugan;
                            Friedman Law Firm, P.C., on brief), for appellee.


                     Matthew Thomas Conley moved to terminate his court-ordered monthly support obligation

            to his former wife, Brenda Lynn Bonasera, pursuant to Code § 20-109(A). Following a hearing, the

            court found, by clear and convincing evidence, that Bonasera cohabited in a relationship analogous

            to marriage for a period exceeding one year. The court reduced the monthly payment, but held that

            termination of spousal support was unconscionable. Conley assigns error to the court’s

            unconscionability finding and its subsequent failure to terminate his support obligation. He also

            challenges the court’s denial of his request for attorney’s fees and costs. For the following reasons,

            we reverse the court’s award of spousal support, but affirm its denial of Conley’s attorney’s fees and

            costs.

                                                      BACKGROUND

                     The parties married on August 25, 2001, and divorced on July 15, 2016. Their marital

            property included ownership interest in three window installation franchises located in Virginia,
New York, and Colorado. In determining equitable distribution, the court awarded Conley

ownership interests in the window installation businesses in New York and Colorado, with a

buy-out to Bonasera for her shares. The court took no action concerning the Richmond business,

known as Window World of Richmond, where both parties were employed in July 2016. The

parties each owned 25% of the business; other investors controlled the remaining 50%.

       At the time of the divorce, the court found that Bonasera’s annual salary was $31,200 and

Conley’s salary was “approximately” $600,000, although it was “difficult to determine and varies

from year to year because of the business cycle and distribution from his companies.” In the

divorce decree, the court awarded Bonasera permanent spousal support of $13,500 a month. Conley

subsequently acquired an additional 50% ownership interest in Window World, giving him 75%

ownership in the business. Bonasera retained 25% ownership.

       On January 16, 2018, pursuant to Code § 20-109(A), Conley filed a motion to terminate or

reduce his spousal support due to Bonasera’s continued cohabitation in a relationship analogous to

marriage for a period exceeding one year. As an alternative ground, Conley alleged a material

change in income for both parties under Code § 20-109(B). In response, Bonasera filed a motion to

increase spousal support on the ground that Conley’s income had increased substantially after he

acquired additional ownership interest in Window World.

       At a March 11, 2019 hearing, Conley presented evidence that Bonasera had been residing

with D.P. since February 2018 in the former marital home. Bonasera and D.P. had a child together,

born in April 2018, who lived with them. The court also considered other evidence of Bonasera and

D.P.’s cohabitation.

       Conley presented additional evidence concerning the parties’ current financial situation.

Previously, when Conley owned only 25% of Window World, he and his business partner

determined the amount of distributions from the company. However, when Conley became the

                                               -2-
majority shareholder in 2018, he acquired sole responsibility for making distributions to himself and

Bonasera. Conley explained that he determined the timing and amount of distributions by

considering the “[e]conomic climate, season, . . . marketing decisions [and] forecast expenses of the

company.”

       Conley acknowledged that his total income for 2016 was $666,492, an increase from 2015.

He presented his 2017 tax return, reflecting a reduction in income, which he attributed to a

downturn in the business. Conley also testified that he earned additional income by liquidating

“defective or mis-measured” windows purchased by Window World. He did not give Bonasera any

of those proceeds because he did not consider them “company income;” the company had already

been compensated for the windows from deductions in the salesperson’s commissions.

Additionally, Conley, who has remarried, has use of a company car and credit card, unlike

Bonasera. 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.

       Bonasera acknowledged that when the final decree was entered, the court calculated spousal

support by considering only her wage income, not the amount she received from company

distributions. According to Bonasera, in 2014 and 2015, before the parties were divorced, Conley

“intercepted” her distributions. She stated that during 2015, she did not receive any distributions

because Conley “took a shareholder allowance out for [approximately] $56,000.” Between 2016

and 2018, Bonasera received an annual salary of $31,200 from Window World. She also received

company distributions during that time period: in 2016, Bonasera received distributions of

approximately $137,000 at the end of the year, in 2017 and 2018, she received distributions nearly

every month totaling $160,000 and $144,750, respectively. Bonasera asserted that she began

                                                 -3-
receiving distributions “when [she] started receiving spousal support because [Conley] had to get

that income from the company and . . . he can’t take unequal shareholder distributions.”

        Bonasera stated that she cannot depend on her distributions because she is uncertain of the

amount she will receive each year. She expressed concern that Conley could “cut off”

disbursements from the business, “and there’s nothing [she] can do aside from [initiating litigation,

which would involve an] exhaustive or astronomical amount of attorney’s fees.” Bonasera stated

that if she did not receive distributions, “[t]hat’s when the [financial] problems will happen.” She

testified that if the court terminated spousal support, she would likely have to sell her home and her

vehicle and would be unable to pay her “astronomical” legal expenses.

        On cross-examination, Bonasera agreed that she told a psychologist who conducted the

parties’ custody evaluations that she could manage financially without spousal support. However,

at trial she stated that the psychologist was not aware of all of Conley’s business dealings.

        Despite continuing to receive her salary, Bonasera has not conducted day-to-day work at

Window World since March 2014 because Conley “got unbearable to be around.” Before then, she

worked approximately forty hours a week handling “all the inside operations from day to day.” The

CPA who provides outside bookkeeping for Window World testified that Bonasera’s access to the

company’s daily financial records ended when Conley became the majority shareholder.

        The court concluded that Conley met his burden of establishing that Bonasera was

cohabiting in a situation analogous to marriage and noted that D.P. “writes checks from

[Bonasera’s] account and uses her credit cards.” However, it determined that termination of spousal

support would be unconscionable. The court found that the parties enjoyed a high standard of living

during the marriage, and Conley’s earning capacity was “in the past and present . . . far great[er]

than that of [Bonasera].” The court also noted Conley’s “high levels of spending that are derived

from his benefits from the business that are not enjoyed” by his former wife. The court reduced

                                                 -4-
spousal support to $4,000 a month effective February 1, 2018, and ordered that Bonasera repay

$123,500 to Conley in thirty monthly installments. The court declined to award attorney’s fees and

denied a subsequent motion to reconsider.

                                            ANALYSIS

        Conley assigns error to the court’s failure to terminate Bonasera’s spousal support pursuant

to Code § 20-109(A) based on her cohabitation with D.P. Conley also contends that he was entitled

to recover his attorney’s fees.

                                        A. Spousal Support

        Code § 20-109 addresses modification and termination of spousal support. It provides, in

relevant part, as follows:

                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 . . . the court shall terminate spousal support and
                maintenance unless . . . the spouse receiving support proves by a
                preponderance of the evidence that termination of such support
                would be unconscionable.

Code § 20-109(A). 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.

        Although factual findings made by a court in support determinations are entitled to great

deference and will be overturned only for an abuse of discretion, we review statutory

                                                -5-
determinations de novo. Luttrell v. Cucco, 291 Va. 308, 313-14 (2016). See also Ragland v.

Commonwealth, 67 Va. App. 519, 530 (2017) (“[T]o the extent the appellant’s assignment of

error requires ‘statutory interpretation, it is a question of law reviewed de novo on appeal.’”

(quoting Grimes v. Commonwealth, 288 Va. 314, 318 (2014))). “[The] de novo standard of

review applies to determining the proper definition of a particular word in a statute.” Miller v.

Commonwealth, 64 Va. App. 527, 537 (2015).

       “[W]ords of a statute should receive their ordinary acceptation and significance, where

such construction is consonant, and not at variance, with the purpose of the statute.” Luttrell,

291 Va. at 314 (quoting Rountree Corp. v. Richmond, 188 Va. 701, 712 (1949)). This Court

previously stated that “[t]he public policy clearly declared by Code § 20-109 . . . is that spousal

support does not survive the recipient’s remarriage.” Hardesty v. Hardesty, 40 Va. App. 663,

668 (2003) (en banc). Code § 20-109(A) furthers that purpose by requiring termination of

spousal support not only for a party who remarries, but for one who cohabits in a relationship

analogous to marriage for greater than one year. The statute provides two exceptions: if the

parties contractually agreed to continue spousal support or if termination of support would be

“unconscionable.”

       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.” Allen v. Allen, 66 Va. App. 586, 595 (2016)

(quoting Bergman v. Bergman, 25 Va. App. 204, 211 (1997)); see Cabral v. Cabral, 62 Va. App.

600, 609 (2013). According to contract law principles, these agreements may be set aside for

fraud or unconscionability in certain circumstances.

                                                -6-
        “Historically, a bargain was unconscionable in an action at law if it was ‘such as no man in

his senses and not under delusion would make on the one hand, and as no honest and fair man

would accept on the other.’” Derby v. Derby, 8 Va. App. 19, 28 (1989) (quoting Restatement

(Second) of Contracts § 208 comment b). “[U]nconscionability is . . . concerned with intrinsic

fairness . . . in relation to all attendant circumstances, including the relationship and duties between

the parties.” Id.

                When the accompanying incidents are inequitable and show bad
                faith, such as concealments, misrepresentations, undue advantage,
                oppression on the part of the one who obtains the benefit, or
                ignorance, weakness of the mind, sickness, old age, incapacity,
                pecuniary necessities, and the like, on the part of the other, these
                circumstances, combined with inadequacy of price, may easily
                induce a court to grant relief, defensive or affirmative.

Id. at 28-29 (quoting Pomeroy, Equity Jurisprudence § 928 (5th ed. 1941)).

        In Derby, we affirmed the court’s determination that a written property settlement

agreement, entered pursuant to Code § 20-109.1, should be set aside on the ground of

unconscionability. Id. at 33. The agreement, including the deed that husband agreed to sign,

“conveyed to [wife] the entire value of essentially all of the valuable real estate which the parties

owned.” Id. at 23. Husband executed the document without the presence of his counsel, and the

court accepted husband’s testimony that he signed the agreement because wife agreed to return

home if he did so. Id.

        We concluded the “trial court’s finding of unconscionability on its face was supported by

the evidence.” Id. at 31. Wife received “essentially everything [husband] had ever earned and

accumulated in his lifetime for [wife’s] ephemeral promise . . . to permit him to reside in one of the

apartment units in the building.” Id. at 30-31. The agreement also provided that husband waived

his right to spousal support, while wife retained hers. Id. at 31. Husband’s “emotional weakness,”




                                                  -7-
in combination with wife’s “concealment and misrepresentation about her conduct and intentions,”

contributed to the court’s finding that the agreement was unconscionable. Id. at 33.

        Similarly, in Sims v. Sims, 55 Va. App. 340, 353-54 (2009), we affirmed a finding that a

settlement agreement was unconscionable where the “evidence established not only a gross

disparity in the division of assets but also infirmity and pecuniary necessities.” Wife, who had a

third-grade education, was married to husband for thirty-eight years, suffered from numerous health

problems, and was receiving food stamps at the time of the evidentiary hearing. Id. at 352.

Although

                husband did not engage in any overt overreaching or oppressive
                conduct, his act of entering into a contract with wife in which she
                waived spousal support and relinquished to him almost 100% of the
                marital estate-including the marital residence, all retirement benefits
                and deferred compensation-literally left her penniless with no
                practical means for supporting herself.

Id. at 353. We held that “gross disparity in conjunction with pecuniary necessity on the part of the

disadvantaged spouse establishes unconscionability.” Id. at 350. Cf. Galloway v. Galloway, 47

Va. App. 83, 86-96 (2005) (finding an agreement awarding husband approximately 94% of the

marital assets not unconscionable where the wife did not suffer from any disability, had inherited

assets, and could obtain a job as a secretary).

        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
                                                  -8-
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. Unlike the termination of spousal support in Derby and

Sims, 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.” Sims,

55 Va. App. at 350. 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. “[T]he amount of support is

based on current needs of the spouse . . . and the ability of the other spouse . . . to pay from current

assets.” Williams v. Williams, 4 Va. App. 19, 24 (1987). 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,




                                                  -9-
termination of Bonasera’s spousal support was not unconscionable and the court erred in awarding

Bonasera continuing spousal support.

                                         B. Attorney’s Fees

       Conley appeals the court’s denial of his request for an award of attorney’s fees and costs.

“Whether to award attorney’s fees ‘is a matter submitted to the sound discretion of the trial court

and is reviewable on appeal only for an abuse of discretion.’” Kane v. Szymczak, 41 Va. App. 365,

375 (2003) (quoting Northcutt v. Northcutt, 39 Va. App. 192, 199-200 (2002)). “[T]he key to a

proper award of counsel fees [is] reasonableness under all of the circumstances revealed by the

record.” McGinnis v. McGinnis, 1 Va. App. 272, 277 (1985).

       Conley argues that he was entitled to recover his attorney’s fees because he prevailed on his

motion at trial. Although Code § 20-99(6) authorizes a court to award fees “to either party as equity

and justice may require,” no statutory provision provides that a prevailing party is automatically

entitled to recover attorney’s fees in a motion to amend or terminate support.

       Conley also asserts that Bonasera “unnecessarily and dramatically increased the cost of

litigation by repeatedly denying that . . . D.P. lived in her home with her” and refusing to answer

relevant interrogatory questions. Although Conley prevailed on the contested cohabitation issue

that Bonasera denied at trial, the record demonstrates lack of cooperation from both parties during

discovery. In particular, the court issued numerous rules to show cause against Conley for his

failure to comply. For these reasons, the court did not abuse its discretion in ordering each party to

pay his or her own attorneys’ fees and costs.

       Both parties also seek attorneys’ fees and costs on appeal.

               The rationale for the appellate court being the proper forum to
               determine the propriety of an award of attorney’s fees expended on
               appeal is clear. The appellate court has the opportunity to view the
               record in its entirety and determine whether the appeal is frivolous or
               whether other reasons exist for requiring additional payment.

                                                 - 10 -
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). Although we reverse the court’s award of

spousal support, this appeal was not frivolous in nature, and Bonasera did not continue to contest the

cohabitation finding. Therefore, we deny both parties’ requests for attorneys’ fees and costs on

appeal.

                                            CONCLUSION

          For the foregoing reasons, we 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.




                                                  - 11 -
