                       COURT OF APPEALS OF VIRGINIA


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


BOBBY W. NELSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 2902-01-2                   JUDGE LARRY G. ELDER
                                                JULY 9, 2002
GRACE V. NELSON


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

          Thomas D. Johnston (Canfield, Shapiro, Baer,
          Heller & Johnston, LLP, on briefs), for
          appellant.

          Robert B. Parkerson for appellee.


     Bobby W. Nelson (appellant) appeals from a ruling of the

trial court denying his petition pursuant to Code § 20-109 to

terminate his obligation to pay spousal support to his former

wife, Grace V. Nelson.    On appeal, he contends clear and

convincing evidence proved that his former wife cohabited with

another person, appellant's brother, in a relationship analogous

to marriage for a period in excess of one year as required by

the statute.    We hold the evidence supports the trial court's

conclusion that appellant failed to prove cohabitation analogous

to marriage by clear and convincing evidence.     Thus, we affirm.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Appellant and Grace originally met through appellant's

brother, Bennie Lee Nelson.   Appellant and Grace married in 1965

and divorced in 1980, at which time the court ordered appellant

to pay Grace spousal support.    In October 1999, appellant's

brother, Bennie, moved into Grace's home in Richmond and has

resided there since that time.

     Under familiar principles, "we construe the evidence in the

light most favorable to . . . the prevailing party below,

granting to [that party] all reasonable inferences fairly

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

448 S.E.2d 884, 885 (1994).   The chancellor, as the trier of

fact, "evaluates the testimony and credibility of witnesses.

Thus, a finding of fact, made by a chancellor who has heard the

evidence ore tenus, carries the weight of a jury verdict, and

will not be disturbed unless plainly wrong or without evidence

to support it."   Johnson v. Cauley, 262 Va. 40, 44, 546 S.E.2d

681, 684 (2001) (citation omitted).

     Code § 20-109 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 commencing on or after July 1,
          1997, 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).

     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";

(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).    "Furthermore, it is within the

province of the trial court to determine what weight to accord

each of the factors . . . ."     Pellegrin, 31 Va. App. at 766, 525

S.E.2d at 617.

     Here, although Grace and Bennie shared a residence and

indicated their intention to do so indefinitely, they testified

that the purpose behind their living arrangement was so that

Grace could provide necessary assistance to Bennie, who had a

longstanding heart condition and had been diagnosed with
terminal prostate cancer, after Bennie's wife died.    The

evidence established that Grace and Bennie were former

siblings-in-law and that Grace and her children had maintained a

close relationship with both Bennie and his wife following

Grace's divorce from appellant in 1980.   The trial court, as the

finder of fact, accepted Grace's and Bennie's testimony that the

relationship was like that of a brother and sister, involved no

sexual intimacy, and was not "analogous to a marriage."      In

light of this testimony, the trial court was entitled to

conclude the factual circumstances surrounding their

relationship did not constitute clear and convincing evidence to

the contrary.

     Although Grace and Bennie resided together, Grace owned the

residence and was responsible for all utilities.   Bennie paid

Grace rent and occupied a separate bedroom, except on one

occasion when the number of house guests, members of Grace's and

Bennie's family, was so large that multiple people slept in each

bedroom.    Although Grace and Bennie frequently traveled together

and shared a hotel room, Grace testified that they had separate

beds when available and that, on those occasions when they

shared a king-sized bed, they did so as "brother and sister."

     Further, the evidence established no commingling of

finances.   Grace and Bennie maintained separate checking and

credit accounts, purchased most of their groceries separately,
and "meticulously" split the costs of all joint activities,

including eating out, entertainment and traveling.

     Grace testified that her relationship with Bennie was

identical to the relationship she had had with an elderly aunt,

except that the aunt was older than Bennie and of the opposite

gender.   Grace's aunt had lived with Grace for five years,

during which time her aunt paid rent and resided in the same

bedroom Bennie later occupied, not Grace's bedroom.    Grace and

her aunt traveled together just as frequently as Grace and

Bennie traveled together, although Grace and her aunt did not

vacation abroad.   When Grace and her aunt traveled, they shared

a hotel room just as Grace and Bennie did.

     In light of all the evidence, the trial court's

determination that appellant failed to present clear and

convincing evidence that Grace and Bennie were "habitually

cohabiting . . . in a relationship analogous to a marriage" was

not plainly wrong.   Therefore, we affirm the trial court's

denial of appellant's petition to terminate spousal support.

                                                           Affirmed.
