J-A29032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

CHARLES J. ODGERS,                        :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
STACEY ANNE ODGERS,                       :
                                          :
                  Appellant               :     No. 873 EDA 2017

              Appeal from the Order Entered February 2, 2017
              in the Court of Common Pleas of Chester County
                Domestic Relations at No(s): 2011-11448-DI

CHARLES J. ODGERS,                        :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellant               :
                                          :
                     v.                   :
                                          :
STACEY ANNE ODGERS,                       :
                                          :
                  Appellee                :     No. 996 EDA 2017

              Appeal from the Order Entered February 2, 2017
              in the Court of Common Pleas of Chester County
                Domestic Relations at No(s): 2011-11448-DI

BEFORE:    LAZARUS, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JANUARY 03, 2018

     In these consolidated cross-appeals, Stacey Anne Odgers (Wife) and

Charles J. Odgers (Husband) challenge different aspects of the trial court’s

determination that Husband’s alimony obligation to Wife ended on April 18,

2016, based upon Wife’s cohabitation. We affirm in part, reverse in part, and

remand with instructions.


*Retired Senior Judge assigned to the Superior Court.
J-A29032-17


            The parties were married on June 13, 1992. Husband filed
      a Complaint in Divorce on October 18, 2011. On August 31, 2013
      the parties entered into a written property settlement agreement
      (hereinafter “the Agreement”). The Agreement was filed on
      October 22, 2013.       A final decree in divorce was entered
      November 6, 2013, which incorporated the Agreement.
      Paragraph II(B) of the Agreement provides that “Husband shall
      pay Wife alimony of $8,300.00 per month for 60 consecutive
      months effective September 1, 2013. The alimony shall be
      nonmodifiable as to duration; provided however that the alimony
      shall terminate earlier than August 31, 2018, on the death,
      remarriage or cohabitation (as defined by law) of Wife or on the
      death of Husband provided he has complied with the insurance
      provisions of this Agreement.”

            In his petition for termination of alimony, Husband alleged
      that alimony should be terminated as per the terms of the
      Agreement due to Wife’s cohabitating with her boyfriend,
      Christopher Bernardine (hereinafter “Mr. Bernardine”). Th[e trial]
      court found that Husband presented sufficient evidence to prove
      cohabitation “as defined by law.” The effective date ordered for
      termination of alimony was April 18, 2016, the date Husband filed
      his petition for termination.

Trial Court Opinion, 4/24/2017, at 2 (unnecessary capitalization omitted).

      Wife timely filed a notice of appeal, and Husband timely filed a cross-

appeal. Both parties and the trial court complied with Pa.R.A.P. 1925. The

questions before us are whether Husband offered sufficient evidence of Wife’s

cohabitation to terminate alimony, and, if so, whether the trial court set the

proper effective date.

      “In reviewing alimony orders, we review only to determine whether

there has been an error of law or abuse of discretion by the trial court. An

abuse of discretion entails a misapplication of the law or a manifestly

unreasonable judgment in light of the record.” Lobaugh v. Lobaugh, 753


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A.2d 834, 835 (Pa. Super. 2000) (citation and internal quotation marks

omitted).

            Where, as herein, a property settlement agreement did not
      merge into the divorce decree, it stands as a separate contract, is
      subject to the law governing contracts and is to be reviewed as
      any other contract. …

              When construing agreements involving clear and
      unambiguous terms, a trial court need only examine the writing
      itself to give effect to the parties’ understanding. A court may not
      modify the plain meaning of the words under the guise of
      interpretation.     In addition, this Court must consider such
      contracts without reference to matters outside of the document,
      and we must ascertain the parties’ intentions when entering into
      the contract from the entire instrument. …

Crispo v. Crispo, 909 A.2d 308, 312-13 (Pa. Super. 2006) (internal citations

and quotation marks omitted).

      The relevant provision of the parties’ Agreement in the instant case is

as follows. “Husband shall pay Wife alimony of $8,300 per month for 60

consecutive months effective September 1, 2013.          The alimony shall be

nonmodifiable as to duration; provided however that the alimony shall

terminate earlier than August 31, 2018 on the death, remarriage or

cohabitation (as defined by law) of Wife….”       Agreement, 10/22/2013, at

¶ II(B).    The agreement is to be construed pursuant to the law of

Pennsylvania. Id. at ¶ VI(I).

      Under Pennsylvania law, cohabitation exists when two people reside

together “in the manner of” spouses, “mutually assuming those rights and




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duties usually attendant upon the marriage relationship.” Miller v. Miller,

508 A.2d 550, 554 (Pa. Super. 1986).

      Cohabitation may be shown by evidence of financial, social, and
      sexual interdependence, by a sharing of the same residence, and
      by other means. Where, upon proof by a preponderance of the
      evidence, the trier of fact concludes that the dependent former
      spouse has entered into a relationship with “a [person] who is not
      a member of the petitioner’s immediate family within the degrees
      of consanguinity” and the two have assumed the rights, duties,
      and obligations attendant to the marital relationship, the
      dependent former spouse is no longer entitled to receive alimony
      from the other former spouse. An occasional sexual liaison,
      however, does not constitute cohabitation.

Id. (citation omitted).

      Wife contends that the evidence does not support a finding of

cohabitation. Wife’s Brief at 8-13. We begin with the trial court’s findings.

The trial court offered the following analysis of the relevant factors, relying

upon factual findings that are supported by the record.

             Wife and Mr. Bernardine each testified and acknowledged
      both the sexual and the social interdependence aspects of their
      relationship. Both Wife and Mr. Bernardine testified frankly as to
      the sexual nature of their relationship. As to the social aspect of
      their relationship, Wife and Mr. Bernardine spend various
      ordinary, holiday and vacation time with one another’s children.
      Mr. Bernardine is particularly close with Wife’s daughters. Mr.
      Bernardine testified that Wife has accompanied him on business
      trips. They have also taken trips alone together as well as family
      vacations with their children. Wife testified that she and Mr.
      Bernardine attend social events together. Consistent testimony
      was given that Wife and Mr. Bernardine share a bedroom and
      make no effort to conceal this fact from either their children or
      other family members/friends that have accompanied them on
      trips.




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           As to financial interdependence and residing together, this
     court found that the evidence and testimony supported a finding
     of both. There are two properties that are potential domiciles for
     Wife and Mr. Bernardine together, Wife’s admitted domicile in
     Berwyn, Pennsylvania (the former marital residence) and Mr.
     Bernardine’s now[-]admitted domicile in Avalon, New Jersey. Mr.
     Bernardine travels extensively for business and for that reason
     spends many nights away from either residence. Therefore, those
     nights were not relevant from an evidentiary standpoint as to
     whether he and Wife cohabitate. Considering in totality the
     remaining nights, or those that he would have spent at either
     residence while not traveling for business, the [trial] court found
     that the majority are spent overnight with Wife, either in Berwyn
     or in Avalon during the summers. The court was not persuaded
     by any of the testimony regarding Mr. Bernardine’s alleged
     residence with his brother in Malvern.

            Mr. Bernardine testified that in purchasing the Avalon home
     in 2015, he was $20,000 “short” at the time of closing. Wife’s
     father loaned Mr. Bernardine the $20,000 he needed for closing,
     purportedly in exchange for Mr. Bernardine entering into a tenants
     in common agreement with Wife that gave her a 3.2% undivided
     interest in the Avalon property. Wife’s father’s name does not
     appear anywhere in the real estate transfer documents. Wife and
     Mr. Bernardine are both listed as the borrowers on the Mortgage
     for the Avalon property. Additionally, Wife and Mr. Bernardine are
     both prominently displayed as the grantees on the first page of
     the Deed to the Avalon property. Both identified, once again at
     the beginning of page one of the deed, the Bodine Road Berwyn
     property address as their mutual residence at the time of the
     transfer. The settlement statement (HUD-1) for the Avalon
     property also indicates that both Wife and Mr. Bernardine are the
     borrowers and again lists their shared address as the Berwyn
     property.

           Wife and Mr. Bernardine both testified that Mr. Bernardine’s
     dog remains with Wife most of the time he is traveling for work.
     A passing reference was made to the dog also being boarded at a
     kennel for some of Mr. Bernardine’s travel time, but the [trial]
     court did not find this testimony convincing. Both Wife and Mr.
     Bernardine also testified that he has stored his car and his
     motorcycle(s) at the Berywn residence. Mr. Bernardine also keeps



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J-A29032-17


        clothing at the Berwyn residence and Wife keeps clothing and
        personal items at the Avalon residence.

              As further evidence of some degree of financial
        interdependence, when Mr. Bernardine was purchasing the Avalon
        property, Wife actually wrote and tendered the initial deposit
        check. Wife testified that she pays half of the flood insurance and
        the entire water bill for the Avalon property and that Mr.
        Bernardine pays all the other bills. The names of both Wife and
        Mr. Bernardine appear on the water bill and their address is once
        again listed as the Berywn property.

Trial   Court   Opinion,   4/24/2017,    at   5-7   (citations   and   unnecessary

capitalization omitted). From these facts, the trial court

        determined that Wife and Mr. Bernardine are socially, sexually,
        and at least somewhat financially interdependent. Further, they
        reside together in a manner similar to husband and wife, just as
        any typical married couple with a job (or jobs) requiring significant
        business travel. The facts show the relationship to be significantly
        beyond the “occasional sexual liaison,” see Miller, that would not
        constitute cohabitation. Wife and Mr. Bernardine are not two
        individuals who are simply dating with each maintaining one of
        two truly separate residences, as is generally found in the body of
        case law wherein Pennsylvania courts denied cohabitation.
        Instead, they appear to be two individuals substantially living
        together and sharing the interdependent, mutual benefit of two
        properties, one house and one shore house. …

Id. at 7-8.

        In contesting the trial court’s ruling, Wife attacks the evidence as to

each separate factor in isolation, instead of offering a persuasive argument

that the trial court erred in determining that an examination of the relationship

as a whole amounts to cohabitation. For example, Wife first contends that

there was “no competent evidence of sexual interdependence,” claiming that,




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J-A29032-17


although “there is no denying that there has been a sexual relationship,” they

have “taken breaks from each other.” Wife’s Brief at 8-9.

      The fact that the sexual relations of Wife and Mr. Bernardine do not take

place without interruption in no way negates a finding of cohabitation. While

evidence of a sexual relationship is insufficient to constitute cohabitation in

and if itself, see, e.g., Lobaugh, 753 A.2d at 836, we agree with the trial

court that the testimony here is consistent with people acting “in the manner

of” spouses. Miller, 508 A.2d at 554.

      Next, Wife maintains that there was insufficient evidence to establish

social interdependence. Wife’s Brief at 9. She notes that “Mr. Bernardine

does not discipline Wife’s children, and they refer to him by his first name as

‘Chris.’” Id. Wife also observes that she and Mr. Bernardine do not share a

computer or know each other’s passcodes. Id. Further, Wife points to an

absence of evidence that she and Mr. Bernardine “hold themselves out as

anything more than boyfriend and girlfriend,” noting that they have neither

discussed marriage nor consider themselves engaged. Id.

      Wife’s arguments are unpersuasive. In this technological age, many if

not most adults, including spouses, have their own computers and devices.

Furthermore, we are not persuaded that the interactions between Mr.

Bernardine and Wife’s teenage daughters is distinguishable from those typical

to children that age and a stepparent.




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J-A29032-17


      With her latter points, Wife appears to conflate the old standards for

common law marriage with the social interdependence necessary to support

a finding of cohabitation. See, e.g., Canute v. Canute, 557 A.2d 772, 774

(Pa. Super. 1989) (“Cohabitation of a man and woman, both of whom are

capable of contracting marriage, and a reputation as husband and wife in their

community together raise a presumption that the parties have contracted

marriage.” (emphasis added)).      The facts cited by the trial court (i.e.,

spending holidays with each other’s families, travelling together as a couple

and for family vacations, and attending social functions as a couple) are

consistent with the social interdependence of spouses.

      Wife’s next contention is that there was “no competent evidence of

financial interdependence.” Wife’s Brief at 10-11. Similar to her prior issues,

Wife here points out facts that establish that she and Mr. Bernardine do not

have total and complete financial interdependence: they do not have joint

bank accounts or credit cards, they file individual tax returns,1 and they do

not provide financial assistance to each other. Id. at 10. However, those

facts neither are inconsistent with the behavior of 21st century spouses, nor

serve to negate the facts that Wife and Mr. Bernardine co-own the Avalon

home, and share some bills for the Avalon and Berwyn residences. The trial

court correctly found that there is some measure of financial interdependence.



1 Since they are not married, it would be illegal for them to file joint tax
returns.

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J-A29032-17


      Finally, Wife claims that the evidence does not show shared residency,

pointing to testimony that shows that Mr. Bernardine does not live at Wife’s

residence. Wife’s Brief at 11-12. Specifically, she notes that Mr. Bernardine

does not do chores at the house, keeps no toiletries there, and “constantly

travels for business.” Id. at 11. Once again, Wife’s pointing out that the

evidence of cohabitation could be stronger does not establish that it is not

strong enough. The trial court properly gave weight to the testimony that Mr.

Bernardine spends the majority of the nights in which he is not traveling for

business with Wife, either at the Berwyn or Avalon home, that Mr. Bernardine

keeps vehicles and his dog at the Berwyn home when he travels, and that

they both have clothing at both residences.

      In sum, Wife argues that the trial court’s finding of cohabitation is

“contrary to case law” when the various factors are examined “in the context

of the existing cases.” Wife’s Brief at 13. However, she cites no case that

conflicts with the trial court’s holding; she merely distinguishes one Superior

Court decision and one Chester County common pleas court decision. 2 Id.




2 The Superior Court case is Lobaugh. In that case, this Court affirmed a
finding of cohabitation, even though there was no evidence of a sexual
relationship, where, for four months while the wife’s paramour recovered from
an illness, the paramour and wife shared a bedroom, had meals together,
attended church together, and paid for some of each other’s bills. Lobaugh,
753 A.2d at 837. While, in contrast with Mr. Bernardine, Mrs. Lobaugh’s
paramour did not utilize a separate residence during the time he stayed with
her, the other indicia of interdependence in the instant case are more
substantial.

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J-A29032-17


Looking at the totality of the circumstances of Wife’s relationship with Mr.

Bernardine, we conclude that the trial court committed no error of law or

abuse of discretion in holding that Wife is cohabiting with Mr. Bernardine.

Accordingly, we affirm that portion of the trial court’s February 2, 2017 order

that terminated alimony pursuant to paragraph II(B) of the Agreement.

      We now turn to Husband’s contention that the trial court erred in setting

the effective date of the termination as April 18, 2017, which was the day

Husband filed his petition. Husband argues that the trial court misapplied the

law in so holding, failing to give effect to the clear and unambiguous terms of

the Agreement. Husband’s Brief at 11-12.

      In setting April 18, 2017, as the termination date for Husband’s alimony

obligation, the trial court relied upon the law applicable to modification or

termination of court-ordered spousal support.       See Trial Court Opinion,

4/24/2017, at 10 (citing Purdue v. Purdue, 580 A.2d 1146 (Pa. Super.

1990)). However, as noted above, because Husband’s alimony obligation was

established by an agreement that was incorporated but not merged into the

divorce decree, the question of its termination “is subject to the law governing

contracts and is to be reviewed as any other contract.” Crispo, 909 A.2d at

313. Accordingly, the trial court’s application of law governing court-ordered

support rather than contract law was erroneous.

      The relevant principles of contract law are found in the following section

of the Restatement (Second) of the Law of Contracts.


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J-A29032-17


      § 230 Event that Terminates a Duty

      (1) Except as stated in [s]ubsection (2), if under the terms of the
      contract the occurrence of an event is to terminate an obligor’s
      duty of immediate performance or one to pay damages for breach,
      that duty is discharged if the event occurs.

      (2) The obligor’s duty is not discharged if occurrence of the event

            (a) is the result of a breach by the obligor of his duty of
            good faith and fair dealing, or

            (b) could not have been prevented because of
            impracticability and continuance of the duty does not
            subject the obligor to a materially increased burden.

      (3) The obligor’s duty is not discharged if, before the event occurs,
      the obligor promises to perform the duty even if the event occurs
      and does not revoke his promise before the obligee materially
      changes his position in reliance on it.

Restatement (Second) of Contracts § 230 (1981).

      Here, paragraph II(B) of the Agreement provides that Husband’s duty

to pay alimony is discharged in the event of Wife’s cohabitation.        Clearly,

subsection (2) is inapplicable to Wife’s decision to cohabit with Mr. Bernardine.

Further, the record is devoid of evidence that Husband promised Wife that he

would continue paying alimony even if she began cohabiting with someone,

let alone that Wife materially changed her position in reliance on any such

promise. Therefore, subsection (1) controls, providing that Husband’s duty

terminated when Wife’s cohabitation began.

      Husband asks this Court to hold that the cohabitation began in July

2015, when Wife and Mr. Bernardine purchased the Avalon residence.



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J-A29032-17


Husband’s Brief at 13, 14. However, we decline to make that factual finding

in the first instance. Accord Heard v. Heard, 614 A.2d 255, 260 (Pa. Super.

1992) (“On appeal, it is not the duty of this court to find facts….”). Rather,

we vacate the portion of the February 2, 2017 order that set April 18, 2016,

as the effective date of termination, and remand for the trial court to (1)

determine when Wife’s cohabitation with Mr. Bernardine began, and (2) set

that date as the date upon which Husband’s alimony obligation terminated.

      Order affirmed in part and reversed in part.      Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 1/3/2018




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