                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia


PETER H. GOLDMANN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1071-02-2                   JUDGE LARRY G. ELDER
                                              DECEMBER 31, 2002
LINDA M. GOLDMANN


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Susan C. Armstrong (Melissa Roberts Levin;
          Elizabeth C. Wu; Troutman Sanders, LLP, on
          briefs), for appellant.

          Christopher W. McDonald (Davis & Kirby, on
          brief), for appellee.


     Peter H. Goldmann (husband) appeals from a ruling denying

his request under Code § 20-109(A) to terminate spousal support

he paid to his former wife, Linda M. Goldmann (wife), pursuant

to an agreement incorporated into their final decree of divorce.

On appeal, he contends the circuit court erroneously held that

support could not be terminated in the absence of language in

the parties' agreement providing that spousal support would

terminate upon wife's cohabitation for a period of twelve months

in a relationship analogous to marriage.    He also challenges the

trial court's admission of parol evidence on the issue of the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
parties' intent in entering into the agreement.   Finally, he

contests the trial court's alternate holding that the evidence

failed to establish wife was cohabiting in a relationship

analogous to marriage and challenges subsidiary rulings on

discovery and the admissibility of evidence related to husband's

efforts to prove wife was cohabiting.   Wife assigns as

cross-error the court's refusal to compel husband's compliance

with her discovery requests.

     We assume without deciding that the cohabitation provisions

of Code § 20-109(A) applied to the parties' agreement.    We hold

none of the trial court's discovery or evidentiary rulings

constituted reversible error.   Further, we affirm the trial

court's conclusion that husband failed to prove, by clear and

convincing evidence, that wife cohabited in a relationship

analogous to a marriage for the requisite period of time.    Thus,

we affirm the court's denial of husband's request to terminate

spousal support.   Because we affirm the court's ruling on the

cohabitation issue, we conclude the trial court's refusal to

compel husband's compliance with wife's discovery request, if

error, was harmless.   Finally, we affirm the trial court's award

to wife of less than half her attorney's fees, and we decline

wife's request for an award of attorney's fees on appeal.




                                - 2 -
                               I.

                           BACKGROUND

     The parties were married on June 22, 1975.     On January 29,

1997, wife filed a bill of complaint for divorce.    The parties

were divorced by final decree entered on August 21, 1998.    The

final decree affirmed, ratified and incorporated a spousal

support agreement of the same date (the agreement).    Neither the

decree nor the agreement made any mention of whether the

agreement would merge into the decree.    The agreement provided

for decreasing spousal support payments until August 31, 2013,

at which time no further "spousal support shall be payable."     It

provided further (1) that the court retained jurisdiction over

the issue of spousal support in the event of (a) husband's

disability "from his present profession as an ophthalmic

surgeon" and resulting qualification for disability insurance

benefits or (b) a change in "the Medicare reimbursement rate for

cataract surgery" and (2) that either party could request

renegotiation of the agreement upon the occurrence of either of

those events.

     By motion of August 31, 2000, husband moved for termination

or reduction of wife's spousal support.   Husband represented,

"[u]pon information and belief," that "[wife] and her paramour

. . . have been habitually cohabiting in a relationship

analogous to marriage for one year or more commencing on or

after July 17, 1997," and "have been living together and sharing

                              - 3 -
mortgage, utility and other living expenses" at a particular

address.

     The trial court ruled that the parties' agreement negated

the provisions of Code § 20-109 and that the agreement could not

be terminated upon proof of cohabitation.      It ruled in the

alternative that husband had failed to prove wife's cohabitation

in a relationship analogous to a marriage. 1

                               II.

  PROOF OF COHABITATION IN A RELATIONSHIP ANALOGOUS TO MARRIAGE
 AND THE TRIAL COURT'S RELATED DISCOVERY AND EVIDENTIARY RULINGS

     We assume without deciding the trial court erroneously

concluded the cohabitation provision of Code § 20-109 did not

apply to the parties' agreement but nevertheless hold the record

supports the trial court's denial of husband's motion to

terminate spousal support.

     As set out above, husband bore the burden of proving, by

"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."   Code § 20-109(A).




     1
       Husband challenges the trial court's admission of parol
evidence regarding the parties' intent in entering into the
spousal support agreement. Because we assume without deciding
that the agreement was terminable upon proof of cohabitation but
that husband failed to prove cohabitation by clear and
convincing evidence, we need not consider whether the trial
court's admission of parol evidence was error.

                              - 4 -
     Evidence is clear and convincing if it "'produce[s] in the

mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.   It is intermediate, being

more than a mere preponderance, but not to the extent of such

certainty as is required beyond a reasonable doubt in criminal

cases.'"   Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535,

540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120

N.E.2d 118, 123 (Ohio 1954)).

           [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)

(quoting Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d

135, 137 (1992) (quoting Petachenko v. Petachenko, 232 Va. 296,

299, 350 S.E.2d 600, 602 (1986))) (construing phrase as used in

settlement agreement).

     Factors relevant in determining whether one has proved his

or her former spouse "has been habitually cohabiting with

another person in a relationship analogous to marriage" include

(1) "whether the payee ex-spouse and that party's [alleged]

paramour . . . have established and shared a common residence";

                                - 5 -
(2) whether their relationship is intimate, which may or may not

include sexual intimacy; (3) whether the payee ex-spouse

receives financial support from the alleged paramour; and (4)

whether the "[d]uration and continuity of the relationship" and

any other relevant factors "evidence stability and permanency."

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.   A court's

findings "must be based upon evidence concerning the overall

nature of the relationship, not merely a piecemeal consideration

of individual factors."     Penrod v. Penrod, 29 Va. App. 96, 101,

510 S.E.2d 244, 246 (1999).

                                  A.

            RELATED DISCOVERY AND EVIDENTIARY RULINGS

     Husband contends his efforts to prove cohabitation were

impaired by the trial court's (1) refusal to compel discovery;

(2) admission of certain evidence wife failed to provide in

advance of trial; and (3) refusal to prevent wife from

testifying at trial regarding issues on which she had invoked

the Fifth Amendment during her deposition.    For the reasons that

follow, we hold the challenged rulings did not constitute

reversible error.



                                 - 6 -
                           1.   Discovery

     By motion for production of documents served June 28, 2001,

husband sought wife's financial records for all accounts,

including banking, investment and credit card accounts from June

1997 through the date of the motion.    After wife's October 11,

2001 response claiming that the requested information was

neither relevant nor calculated to lead to the discovery of

admissible evidence, husband filed a motion to compel on

November 1, 2001.   However, husband did not obtain a ruling on

his motion to compel until January 4, 2002, the last business

day immediately before the hearing of evidence on the

termination motion was scheduled to begin on January 7, 2002.

That hearing had been continued previously.

     Further, husband presumably had received some information

concerning wife's and her alleged paramour's financial accounts

in response to previous discovery rulings.    By letter opinion of

July 26, 2001, the trial court allowed husband to subpoena the

following documents:   wife's Merrill-Lynch account records from

January 2000 and continuing; wife's Progressive Insurance

policies from January 1999 and continuing; and wife's First

Union statements from August 1, 2000, to March 26, 2001.

Similarly, by orders entered October 3, 2001, the trial court

allowed out-of-state subpoenas on credit card accounts with MBNA

America and First USA Bank for wife and her alleged paramour,



                                - 7 -
respectively, for the period from January 1, 2000, through

September 27, 2001.

     The fact that husband had received some of the requested

financial information, coupled with husband's failure to obtain

a timely ruling on his broader discovery request, support the

conclusion that the trial court did not abuse its discretion in

denying the motion heard on the eve of trial and ruling that no

further discovery would be had.     See, e.g., Rakes v. Fulcher,

210 Va. 542, 546, 172 S.E.2d 751, 755 (1970) (holding no abuse

of discretion in denying discovery motion absent showing that

"action taken was improvident and affected substantial rights").

                      2.   Admission of Evidence

     Husband objected at trial to the court's admission of the

testimony of Accountant Kent Early both because he was not

identified as a potential witness until ten days before trial

and because he testified, in addition, to matters unrelated to

those about which he was identified as a witness.      Although

husband claims unfair surprise and prejudice because he was

unable effectively to cross-examine Early or offer rebuttal

evidence, he did not request a recess or continuance.      Thus, we

hold no reversible error occurred.       Cf. Lane v. Commonwealth, 20

Va. App. 592, 595, 459 S.E.2d 525, 527 (1995) (holding under

Rule 3A:11(b)(1), which governs discovery in criminal cases,

that defendant who claimed surprise but failed to request a



                                 - 8 -
recess or continuance sought "only suppression of the truth" and

could not show prejudice).

     Husband also contests the trial court's admission of

evidence regarding rent payments Tucker made to wife and an

exhibit showing wife's current income and expenses, neither of

which wife provided to husband during discovery.   We hold the

admission of these items also did not constitute reversible

error.   Although husband objected to admission of the exhibits,

he did not request a recess or continuance for further discovery

to attempt to combat any claims of prejudice.    Further, because

Mr. Tucker did not testify until three weeks after wife, husband

had three weeks in which to prepare a challenge to this evidence

through his examination of Tucker.     See id.

     When Tucker testified, husband objected to introduction of

the actual documents showing Tucker paid by check because they

weren't produced in discovery, but he registered "[no]

objection" to the trial court's statement that it would take

"judicial notice of the fact that [Tucker] paid by check," and

he made no attempt to cross-examine Tucker regarding any other

issues related to those payments, such as their duration.

     For these reasons, we hold the trial court's admission of

the challenged evidence did not constitute reversible error.




                               - 9 -
              3.   Privilege Against Self-Incrimination

     We assume without deciding that the trial court erroneously

ruled wife should be permitted to assert her Fifth Amendment

privilege as "to all of the questions she was asked."

            There is no blanket Fifth Amendment right to
            refuse to answer questions in noncriminal
            proceedings. Capitol Products Corp. v.
            Hernon, 457 F.2d 541 (8th Cir. 1972). The
            privilege must be specifically claimed on a
            particular question and the matter submitted
            to the court for its determination of the
            validity of the claim. . . . [T]he trial
            court [must] determine whether [the
            individual] is justified in invoking the
            privilege against self-incrimination with
            respect to each of the questions propounded
            . . . .

N. Am. Mortgage Investors v. Pomponio, 219 Va. 914, 918-20, 252

S.E.2d 345, 348-49 (1979).    Here, the trial court ruled that

"[a]lthough some of the questions [to which wife asserted her

privilege against self-incrimination] do not qualify[,] it is

apparent that the follow-up questions would."    The trial court

erroneously ruled, contrary to the requirements of Pomponio,

that it "[would] not individualize the questions."

     Nevertheless, husband had ample opportunity to obtain

answers to these questions at the hearing on his motion to

terminate support.    Wife took the witness stand at that hearing

and did not invoke her Fifth Amendment privilege on a single

occasion.   Husband objected to wife's testifying about her

expenses and rent payments her alleged paramour had made to her

because those records had been requested but not provided in

                                - 10 -
discovery.   Husband's counsel also brought out on

cross-examination that wife asserted her privilege against

self-incrimination "to many, many, many questions during the

course of [her] deposition."   However, husband made no

contemporaneous request to the court to exclude wife's testimony

on issues about which she had refused to testify at her

deposition, he did not ask the trial court to reconsider its ban

on further discovery and did not request a continuance in which

to engage in further discovery in order to avoid any harm from

what he only subsequently claimed was unfair surprise.    Thus, we

hold the trial court did not abuse its discretion in allowing

wife to testify on issues on which she had previously invoked

the Fifth Amendment.

     Further, the trial court was not required to draw adverse

inferences from wife's and her alleged paramour's invocation of

their privilege against self-incrimination.    First, Code

§ 8.01-223.1 provides that "[i]n any civil action the exercise

by a party of any constitutional protection shall not be used

against him."   We have held that this statute allows even the

moving party in a civil suit to assert her right against

self-incrimination and that her doing so does not justify

dismissal of her suit.   See Travis v. Finley, 36 Va. App. 189,

201-02, 548 S.E.2d 906, 912 (2001).     Thus, the trial court was

forbidden to draw adverse evidentiary inferences from the fact

that wife asserted her privilege against self-incrimination

                               - 11 -
numerous times during her deposition.   Further, she testified at

trial subject to full examination by husband, and she did not

invoke the Fifth Amendment on even one occasion.    The trial

court was able to evaluate both the substance and credibility of

the testimony she gave.

     Second, although Code § 8.01-223.1 would not prevent the

court from drawing adverse inferences against wife based on her

alleged paramour's invocation of the Fifth Amendment, we are

aware of no principle of law which would require the court to

draw such inferences.   As husband acknowledges on brief, such an

inference is permissive rather than mandatory.    Thus, we hold

the trial court did not abuse its discretion in failing to draw

such inferences.

                                B.

        SUFFICIENCY OF THE EVIDENCE TO PROVE COHABITATION

     Finally, we hold the evidence, viewed in the light most

favorable to wife, see, e.g., Penrod, 29 Va. App. at 97, 510

S.E.2d at 244, supports the trial court's conclusion husband

failed to prove, by clear and convincing evidence, that wife

habitually cohabited with her alleged paramour in a relationship

analogous to a marriage.   The trial court found as follows:

               Although Mr. Tucker [the alleged
          paramour] lives in the residence when    he is
          in Virginia[,] he pays room and board    in the
          amount of $350.00 per month. That is     a
          modest amount but seems reasonable in    view
          of his disability income.


                              - 12 -
                Mr. Tucker spends a lot of time out of
           the residence as he pursues his avocation of
           sailing. He is apparently gone for extended
           periods of time without [wife].
                There [is] no commingling of assets
           except for a brief time when [wife's] car
           was jointly titled with Mr. Tucker. The
           court accepts the explanation that this was
           to obtain a handicap-parking pass.
                Separate bank accounts and separate
           credit cards are maintained by [wife] and
           Mr. Tucker.
                When Mr. Tucker is there he shares in
           performing household duties.
                Whether this is a romantic relationship
           or a platonic relationship is hard to
           determine. Certainly it is a relationship
           of convenience for both [wife] and Mr.
           Tucker. They obviously enjoy one another's
           company and do a lot of activities together.
                In a marriage both parties take on the
           serious responsibility together to make the
           relationship work. I do not find that to
           exist here. [Wife] is the primary caretaker
           and provider for the household.
                Based on a totality of the
           circumstances I do not find a relationship
           analogous to a marriage to have existed for
           a period of one year between [wife] and Mr.
           Tucker.

     The evidence supports the trial court's findings of fact,

and none of the additional evidence cited by husband requires a

different result.   Wife admitted to being romantically involved

with Tucker in the spring of 1997.     However, she said the nature

of the relationship changed from romantic to platonic

"[p]robably sometime in 1998" and that for the two years prior

to the January 7, 2002 hearing, their relationship had been

"more of a landlord/tenant relationship."    She testified that

they had


                              - 13 -
          chosen to maintain a platonic relationship
          because [they] enjoy each other's
          company[.] . . . [She] enjoy[s] being able
          to sail, which [she] cannot do by [herself],
          and Mr. Tucker is severely handicapped. And
          [she] saw an opportunity to help him have a
          higher standard of living, to live in a
          nicer environment, and to help [her],
          frankly, feel safe living . . . in a home
          alone . . . .

Although wife's son saw wife and Tucker in wife's bedroom at

night "after she had gone into her room and closed the door" on

perhaps five to ten occasions, they "would be fully clothed" and

talking, reading or doing "day-to-day things."    Wife testified

that she allowed Tucker to use the bathroom in her room because

of his disability and that Tucker slept either on the living

room couch or in one of the upstairs bedrooms.

     Tucker had considered wife's Hayes residence as his primary

residence since they both moved there in the summer of 1999.

However, Tucker paid wife $350 per month to cover utilities,

food, automobile insurance, and whatever else Tucker might use

at her home and he routinely performed "yard maintenance as part

of his room and board agreement."   No evidence established any

other overlap in finances.   In addition, although wife testified

that she and Tucker sometimes traveled together, she also said

Tucker was frequently absent from the Hayes residence on

solitary sailing trips lasting weeks at a time.

     Although wife's son testified that Tucker resided with wife

and son in wife's Richmond residence before they moved to Hayes


                              - 14 -
in the summer of 1999, the son was unable to say for how long

Tucker had resided there with them and testified only that

Tucker was present on "an on and off basis."   The son did not

know where Tucker slept.   Further, the fact that Tucker was

listed as a named insured on wife's automobile policy from

October 1998 to October 1999 did not compel the conclusion that

Tucker regularly lived in wife's residence during that time.     An

insurance company representative testified that a person who is

a resident of the primary insured's household or a person who

regularly operates the vehicle should be named on the policy.

The representative testified that no definitions existed

concerning what constituted "living with the insured" or

"regularly operating" the insured's vehicle and that he was not

privy to wife's conversation with the agent who initiated the

policy.

     Tucker's testimony that the nature of his relationship with

wife had not changed over time, without ever asserting what he

claimed the nature of that relationship was, did not require a

different result.

     No evidence regarding wife's and Tucker's sailing or other

trips compels the conclusion that they remained romantically

involved after 1998.

     Finally, the fact that wife claimed Tucker as a dependent

on her income tax returns without declaring any rental income



                              - 15 -
did not compel the conclusion that they were cohabiting in a

relationship analogous to a marriage.

                                III.

             COURT'S REFUSAL TO COMPEL DISCOVERY OF
               HUSBAND'S CURRENT FINANCIAL STATUS

     Wife assigns as cross-error the trial court's refusal to

compel husband to produce information requested in discovery

regarding husband's current financial status.   As wife concedes

on brief, this refusal, if error, was harmless.   Husband's

financial status related only to the issue of whether

termination of wife's spousal support would be unconscionable.

Because we affirm the trial court's decision that husband failed

to prove wife was cohabiting in a relationship analogous to a

marriage, the trial court need not reach the issue of whether

termination would be unconscionable.

                                IV.

                         ATTORNEY'S FEES

     "'An award of attorney's fees is a matter submitted to the

trial court's sound discretion and is reviewable on appeal only

for an abuse of discretion.'   The key to a proper award of

counsel fees is reasonableness under all the circumstances."

Lightburn v. Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281,

285 (1996) (quoting Graves v. Graves, 4 Va. App. 326, 333, 357

S.E.2d 554, 558 (1987)) (other citation omitted).




                               - 16 -
     Here, wife requested attorney's fees in excess of $13,000,

and the trial court ordered husband to pay $5,750 of those fees.

The evidence, viewed in the light most favorable to wife,

established that husband remained gainfully employed as a

ophthalmic surgeon whereas wife's vocational opportunities were

quite limited.   Under these circumstances, we hold the trial

court did not abuse its discretion.

     Wife requests an award of attorney's fees in this appeal on

the ground that husband's assignments of error are supported by

neither the law nor the evidence.    Although we uphold the trial

court's ultimate ruling, we decline to make an additional award

of fees to wife and direct that the parties bear their own fees

incurred on appeal.

                                V.

     For these reasons, we hold none of the trial court's

discovery or evidentiary rulings constituted reversible error.

Assuming without deciding that the cohabitation provision of

Code § 20-109 applies to the parties' agreement, we affirm the

trial court's conclusion that husband failed to prove, by clear

and convincing evidence, that wife cohabited in a relationship

analogous to a marriage for the requisite period of time.   Thus,

we affirm the court's denial of husband's request to terminate

spousal support.   Because we affirm the court's ruling on the

cohabitation issue, we conclude the trial court's refusal to

compel husband's compliance with wife's discovery request, if

                              - 17 -
error, was harmless.   Finally, we affirm the trial court's award

to wife of less than half her attorney's fees, and we decline

wife's request for an award of attorney's fees on appeal.

                                                         Affirmed.




                              - 18 -
