A husband could not cut off spousal support because his ex-wife was living with and engaged to another woman, the Virginia Court of Appeals said on April 21. Virginia’s statute that halts termination for “cohabitation” did not apply because Virginia law dictates that “cohabitation” can only occur between a man and a woman, the court said.

The couple married in 1992 and the wife filed for divorce on Nov. 5, 2007. Their property settlement agreement was affirmed, ratified and incorporated into a Nov. 6, 2008, final divorce decree.

Under the agreement, the husband paid monthly spousal support of $2,450, to continue for eight years. Support would terminate, however, upon the death or remarriage of the wife, or by court action pursuant to Va. Code § 20-109, which curtails support when the payee spouse cohabits in a relationship “analogous to marriage.”

In 2014, the husband asked the Fairfax Circuit Court to adjust spousal support and require the wife to reimburse him for past payments, alleging he had recently discovered the wife had been cohabiting with and engaged to be married to another woman since at least Nov. 24, 2012.

After a hearing, the trial judge denied the husband’s motion and awarded the wife attorney’s fees under a PSA provision allowing “reasonable expenses” for the “successful enforcement or defense” of a provision of the agreement. Circuit Judge Charles J. Maxfield said that under the reasoning of the 2012 Court of Appeals case Brennan v. Albertson, the husband could not stop support because the wife lived with another woman and “accordingly, cannot ‘cohabit’ within the meaning” of Code § 20-109.

In Brennan, the appeals court upheld termination of spousal support for an ex-wife who was living with another woman, but the panel majority said in the 2012 case that they were not deciding whether a same-sex couple could “cohabit” under § 20-109(A) because that issue was not before them. Although the two women shared a home and a social life, they were not romantically involved. Critically, the two friends considered the relationship as permanent or indefinite.

In its unpublished opinion in the new case, Luttrell v. Cucco, the appeals court construed the cohabitation statute not to apply to the same-sex couple.

“When the General Assembly amended Code § 20-109(A), it added to a body of law by the Supreme Court of Virginia as well as by this Court,” wrote Judge Rossie D. Alston Jr. Five years before the General Assembly’s amendment to Code § 20-109(A), the Supreme Court of Virginia said in Schweider v. Schweider that to cohabit meant “to live together in the same house as married persons live together, or in the manner of husband and wife.”

The same year, the Court of Appeals said in Frey v. Frey that cohabitation under the statute 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.”

“In the years since, neither the Supreme Court nor this Court has interpreted the phrase ‘cohabitation, analogous to marriage,’ as used in Code § 20-109(A), to apply to same-sex relationships,” Alston wrote.

In the absence of any General Assembly action addressing or altering this case law, “we must conclude that the General Assembly intended this meaning when it amended Code § 20-109(A),” and “wife could not cohabit with another woman,” the panel concluded.

Because the wife had successfully defended against the motion to terminate support, the panel also affirmed the award of attorney’s fees.

Michael Luttrell, the husband, appeared pro se in the trial court.

Fairfax lawyer Anneshia Miller Grant, who represented the husband on appeal, said the new decision seems “somewhat contradictory.”

The Brennan case shows the court will terminate spousal support for a member of a same-sex couple, but that case was decided more in terms of a contract, than by construction of the cohabitation statute, according to Grant.

The appeals court has taken the approach that “we’re not asked to assign a legal status” to the couple, so the case can be decided with statutory construction, Grant said.

Samantha Cucco, the wife, offered no brief or argument on appeal.

UPDATE: This post has been updated to add comment from the husband’s lawyer.