COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Haley and Senior Judge Fitzpatrick 

Argued at Alexandria, Virginia 

JOSEPH ANTHONY STROUD 

 OPINION BY 

v. Record No. 3158-05-4 JUDGE JAMES W. HALEY, JR. 

 FEBRUARY 27, 2007 

DEBRA LYN STROUD 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 James Ray Cottrell (David H. Fletcher; John K. Cottrell; Gannon & 

Cottrell, on briefs), for appellant. 

 Richard J. Colten (James A. Watson, II; Mollie C. Barton; Colten 

Cummins Watson & Vincent, on brief), for appellee. 

I. 

 The primary issues here for resolution are (1) whether the evidence compels the 

conclusion that the terms of a property settlement agreement (“PSA”) terminating spousal 

support upon “cohabitation with any person . . . in a situation analogous to marriage” have been 

met, and (2) if so, whether such a clause involving a relationship among persons of the same sex 

is operative as a matter of law in Virginia. 

 Joseph Anthony Stroud (“husband”) maintains that the trial court: (1) erred in finding 

that husband had not established cohabitation by the preponderance of the evidence, and 

(2) erred in finding as a matter of law in Virginia that individuals of the same sex cannot 

cohabitate in a situation analogous to marriage. We agree and reverse on these issues. 
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 Debra Lyn Stroud (“wife”) has assigned as error the trial court decision (1) to permit the 

introduction of evidence concerning the parties’ negotiations before execution of the PSA, and 

(2) to deny her request for attorney’s fees. We affirm on these issues. 

II. 

PAROL EVIDENCE RULE 

The parties were divorced by decree entered April 7, 1999. That decree ratified, 

affirmed, and incorporated a PSA dated March 22, 1999. The PSA required husband to pay wife 

$4,000 per month spousal support. The PSA continued: “[T]he aforesaid payments shall end 

upon the death of either party, the remarriage of Wife and/or her cohabitation with any person to 

whom she is not related by blood or marriage in a situation analogous to marriage for a period 

of thirty (30) or more continuous days . . . .” (Emphasis added). Husband alleges the “person” 

here involved, who triggered the spousal support termination clause, was a female we identify as 

“Robyn.” 

In opening statements, wife’s attorney noted that the issues in controversy included her 

“cohabitation with any person” and Virginia law concerning same-sex relationships. At trial, 

husband offered a pre-execution draft of the PSA, and testimony concerning the same. The trial 

court admitted both, concluding the PSA was ambiguous and such evidence, concerning 

“negotiations for a settlement,” was admissible to discern the parties’ intent in the use of the 

word “person” in the PSA. Wife has assigned this ruling as cross-error, maintaining the 

admission of the evidence violated the parol evidence rule. We disagree. 

“Property settlement agreements are contracts and are subject to the same rules of 

construction that apply to the interpretation of contracts generally.” Southerland v. Estate of 

Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378 (1995); see also Plunkett v. Plunkett, 271 
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Va. 162, 166, 624 S.E.2d 39, 41 (2006); Boedeker v. Larson, 44 Va. App. 508, 518, 605 S.E.2d 

764, 769 (2004). 

In Vilseck v. Vilseck, 45 Va. App. 581, 612 S.E.2d 746 (2005), we noted that, “[a]n 

agreement should be deemed ‘ambiguous if it may be understood in more than one way,’” so 

long as both meanings are “objectively reasonable.” Id. at 588-89, 612 S.E.2d at 749 (quoting 

Video Zone, Inc. v. KF&F Props., 267 Va. 621, 625, 594 S.E.2d 921, 923 (2004)). 

Furthermore, “whether contract language is ambiguous is [a question] of law, not fact.” 

Plunkett, 271 Va. at 166-67, 624 S.E.2d at 41. Thus, we review the trial court’s decision on a 

finding of ambiguity de novo.

In this case, a foundational issue was whether the parties intended, by the use of the word 

“person” in the context of the PSA, only individuals of different sexes, or individuals of both 

sexes. We hold the word “person” can be understood in either way by an objectively reasonable 

standard and, accordingly, that word is ambiguous as it is used in the PSA. 

“When the language of a contract is ambiguous, parol evidence is admissible, not to 

contradict or vary contract terms, but to establish the real contract between the parties . . . [and] 

to determine the intention of the parties.” Tuomala v. Regent Univ., 252 Va. 368, 374, 477 

S.E.2d 501, 505 (1996) (citations omitted) (emphasis added). The “[u]ltimate resolution of the 

question whether there has been a binding settlement [agreement] involves a determination of the 

parties’ intention[s], as objectively manifested.” Synder-Falkinham v. Stockburger, 249 Va. 376, 

381, 457 S.E.2d 36, 39 (1995); see also Shoup v. Shoup, 31 Va. App. 621, 625-26, 525 S.E.2d 

61, 63-64 (2000). 

 Thus, “[t]he facts and circumstances surrounding the parties when they made the 

contract, and the purposes for which it was made, may be taken into consideration as an aid to 

the interpretation of the words used . . . .” Seaboard Air Line R.R. Co. v. Richmond-Petersburg 
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Tpk. Auth., 202 Va. 1029, 1033, 121 S.E.2d 499, 503 (1961), cited with approval in VEPCO v. 

Northern Va. Regional Park Auth., 270 Va. 309, 319, 618 S.E.2d 323, 328 (2005). Those facts 

and circumstances include the “preliminary negotiations between the parties and the meaning of 

the language used . . . .” Bolling v. Hawthorne Coal & Coke Co., 197 Va. 554, 570, 90 S.E.2d 

159, 170 (1955). Thus, parol evidence was admissible to determine the intentions of the parties, 

and the meaning of the contextually ambiguous word “person,” in the PSA. 

Subsequent to the trial court’s ruling on admissibility, husband testified that drafts of a 

proposed PSA “had already bounced back and forth several times [before] we finalized it on 

March 16th . . . and it was signed on March 22nd.” Introduced into evidence was a draft PSA in 

which the support termination clause read “cohabitation with a male in a situation analogous to 

marriage . . . .” (Emphasis added). Husband testified, “I remember scratching that out and 

putting in ‘person,’ and submitting that to my attorney, who submitted it to [wife’s attorney’s] 

office.” 

Likewise, relevant to interpreting the word “person” in the PSA is evidence offered by 

wife. On direct examination by her counsel, wife testified as follows:

Q. You testified a moment ago that you don’t live with 

[Robyn] in a relationship analogous to a marriage. Are 

there reasons for that? 

A. Yeah. The most important reason is the fact that I signed 

an agreement with [husband] in 1999 that said that I would 

not cohabit with anyone in a situation analogous to 

marriage for 30 consecutive days, and I was very aware of 

that and I kept track. 

(Emphasis added). 
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It is long established1

 that “‘[w]hen the terms of an agreement are . . . uncertain, the 

interpretation placed thereon by the parties themselves is entitled to great weight and will be 

followed . . . .’” Dart Drug Corp. v. Nicholakos, 221 Va. 989, 995, 277 S.E.2d 155, 158 (1981) 

(quoting O’Quinn v. Looney, 194 Va. 548, 552, 74 S.E.2d 157, 159 (1953)); Am. Realty Trust v. 

Chase Manhattan Bank, N.A., 222 Va. 392, 403, 281 S.E.2d 825, 831 (1981). See also Smith v. 

Smith, 3 Va. App. 510, 518, 351 S.E.2d 593, 598 (1986). 

This uncontested evidence of the negotiations of the parties before execution of the PSA, 

the various drafts of the PSA, and the interpretation of the word “person” by each of the parties 

subsequent to its execution, makes clear that each understood at the time of execution of the PSA 

the word “person” in the spousal support termination provision was to include individuals of 

both sexes. 

III. 

FACTS 

 The evidence considered by the trial court with respect to cohabitation was essentially 

undisputed. That evidence included wife’s written response to husband’s request for admissions, 

a transcript of wife’s deposition, a Christmas letter written by Robyn, and a stipulation of facts 

entered into by the parties concerning the observations of private detectives. Relevant to this 

opinion are also the facts that wife owned a home, and Robyn owned a home on a different 

street. 

 Responding to husband’s request, wife admitted the following: (1) Robyn stayed 

overnight in her house “an average of 5 nights per week for a period in excess of one year”; 

(2) Robyn “sleeps in the same bed” with her; (3) Robyn keeps clothes in wife’s bedroom closet 

and toiletries in wife’s bedroom’s bathroom; (4) she engages “in consensual sexual acts” with 

 1

 For example, see Clark v. Nunn, 66 Va. (25 Gratt.) 287 (1874), and Kidwell v. 

Baltimore & O. R.R. Co., 52 Va. (11 Gratt.) 676 (1854). 
- 6 -

Robyn; (5) she and Robyn have exchanged rings; (6) she and Robyn have been on vacation trips 

together to Europe and places in this country, and “share accommodations” on those trips; 

(7) Robyn washes dishes and laundry at wife’s home, possesses a key to and drives wife’s car, 

and attends church with wife; (8) she loaned Robyn $8,000 or $9,000 without written evidence 

of the debt or a repayment schedule; (9) Robyn is listed as the emergency contact on applicable 

forms for wife, and for wife’s three daughters; and (10) Robyn tells these children she loves 

them and purchases gifts for them. 

 Relevant to the above admissions is a Christmas letter, dated December 29, 2004, that 

Robyn sent to friends and family members. In that letter Robyn relates in detail present activities 

and future plans concerning the three children. She writes, 

[T]he rewards of watching three teenagers grow and mature are 

endless. 

On a personal note, [wife] and I are doing well. Each day 

presents a new parenting challenge but together we can and have 

both the joy and the frustrations of raising three girls. . . . [Wife] is 

still working in the office . . . and comes home every day with a 

new story. . . . When she is not working, she is busily putting food 

on the table, doing laundry, and making sure the pantry is stocked. 

We could not live without her. 

I am the most spoiled of us all! Many of you always said 

that I was born with a silver spoon in my mouth . . . . I like to 

think that I know a good thing when I find it! 

 

At trial Robyn, on many occasions after being reminded of her answers in discovery 

depositions, testified as an adverse witness that: (1) “[w]hen you’ve been in a relationship with 

someone as long as [wife] and I have, I think [that being a co-parent to wife’s three children is] a 

side part to it . . . ”; (2) she considered the three children as if they were her three children 

because “they’re the closest I’m ever going to have to having children”; (3) she acknowledged 

there was “an understanding of fidelity” between her and wife and viewed herself and wife “as a 

couple”; (4) she acknowledged that wife is “certainly someone I’m in a relationship with” and 

that there had been an exclusive or faithful sexual relationship between the two for “[t]hree years 
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or so maybe”; (5) she “routinely” wears the diamond ring she received from wife; and (6) she 

keeps “an accordion file” of her personal records at wife’s house. 

Robyn further admitted that, with respect to the residential property she owned, she rents 

the same to a woman with children for $900 per month, that her tenant paid all the utilities, that 

her tenant had complete use of the entire house, except for Robyn’s bedroom and bathroom, for 

herself and “[h]er children and other guests.” Robyn did not dispute any of the answers wife had 

submitted in response to husband’s request for admissions. 

Both wife and Robyn explained why they did not present themselves as a couple to the 

public: 

Robyn: “what I share with Debb[y] is . . . against the law in 

Virginia . . . [and] I am in a profession where I’m not protected by 

the law because of that.” 

* * * * * * * 

Wife: “I’m a Fairfax County public school employee and they 

don’t exactly welcome me with open arms if I’m having a 

relationship of some kind with a woman.” 

The uncontradicted evidence, offered by both wife and Robyn, is that neither has an 

ownership interest in, or mortgage obligation on, the real property of the other, that they do not 

share bank accounts or investment portfolios, and that neither is a beneficiary of retirement 

benefits, established trusts, life insurance, or the will of the other. 

At trial the parties entered into a stipulation as to the observations of private detectives 

retained by husband. That stipulation, taken from the transcript, is summarized as follows: 

Private detectives “placed [wife’s] house under surveillance for a period of . . . 34 days . . . 

[from] January 18, 2005 through February 20, 2005 . . . [and Robyn] stayed overnight at [wife’s] 

residence . . . [during that time period] with the exception of . . . four days.” Further, Robyn “did 

not spend any appreciable time at her own house. There is the possibility that she may have 
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gone there to pick up mail or something, but she didn’t return to her house during that period of 

time . . . [and if she did so] it would be immaterial to the issue at hand . . . .” 

Robyn testified, with respect to the four-day interval, that she left from wife’s home and 

was driven to the airport for a “business” trip, that she toured the University of Georgia, that wife 

picked her up at the airport, and that she returned directly to wife’s home. 

 At the conclusion of this undisputed evidence and argument, the trial court stated: 

And so I keep finding myself in equipoise . . . it’s cohabitation, 

analogous to a marriage, and the other, it’s not cohabitation, 

analogous to a marriage, and it seems to me that’s the classic 

definition of a failure to prove something by the preponderance of 

the evidence. 

IV. 

STANDARD OF REVIEW AS TO THE EVIDENCE 

As we have noted above, the evidence in this case is essentially undisputed. In that 

posture: 

The findings of a trial court after an ore tenus hearing should not 

be disturbed on appeal unless they are plainly wrong or without 

evidence to support them. A trial court’s conclusion based on 

undisputed evidence, however, does not have the same binding 

weight on appeal. Moreover, a fact finder may not arbitrarily 

disregard uncontradicted evidence that is not inherently incredible. 

 

Schweider v. Schweider, 243 Va. 245, 250, 415 S.E.2d 135, 138 (1992) (citations omitted). 

 Thus, when “[n]o controverted fact was passed on by the trial court,” Rinehart & Dennis 

Co. v. McArthur, 123 Va. 556, 567, 96 S.E. 829, 833 (1918), the trial court’s “finding is not 

entitled to the same weight it would be accorded if reached in a factual situation upon conflicting 

evidence.” Madbeth, Inc. v. Weade, 204 Va. 199, 202, 129 S.E.2d 667, 669 (1963). 
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V. 

SUFFICIENCY OF THE EVIDENCE AS TO COHABITATION 

In Schweider, the Supreme Court of Virginia stated: 

We have said that the term “cohabit” means “to live together in the 

same house as married persons live together, or in the manner of 

husband and wife.” Johnson v. Commonwealth, 152 Va. 965, 970, 

146 S.E. 289, 291 (1929). While engaging in sexual relations is a 

factor in determining cohabitation, “‘matrimonial cohabitation’ 

consists of more than sexual relations. It also imports the 

continuing condition of living together and carrying out the mutual 

responsibilities of the marital relationship.” Petachenko v.

Petachenko, 223 Va. 296, 299, 350 S.E.2d 600, 602 (1986). 

243 Va. at 248, 415 S.E.2d at 137. 

 In Pellegrin v. Pelligrin, 31 Va. App. 753, 763-66, 525 S.E.2d 611, 616-17 (2000), this 

Court enunciated four non-exclusive factors demonstrative of the “mutual responsibilities of the 

marital relationship.” 

(1) “Common residence.” Id. at 764, 525 S.E.2d at 616. The trial court in the instant 

case concluded that wife and Robyn “maintain separate residences.” Yet the undisputed facts 

show that, at a minimum, Robyn has spent five nights a week for over a year in wife’s home, 

keeps clothes, toiletries, and personal files in wife’s home, washes her clothes and dishes in 

wife’s home, and possesses a key to the same. Wife’s home is where Robyn eats her meals. The 

stipulation in this case was that Robyn spent 34 consecutive days, with the exception of the 

four-day business trip, in wife’s home, and, to the extent Robyn even went to her own property, 

those visits were “immaterial to the issue at hand.” Even concerning the four-day interval, 

Robyn left from and returned to wife’s house.2

 With respect to Robyn’s property, the entire 

house, with the exception of a bedroom and adjoining bathroom, are rented to a woman who has 

 2

 As the trial court commented: “But if you’re living with someone and you left on a 

business trip and you come back and you don’t go to your apartment or house, you go right back 

to living with the other person, aren’t you still cohabiting?” 
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full use of the same for herself, her children, and her guests. Finally, in the Christmas letter, 

Robyn writes that wife “comes home every day with a new story . . . .” Since wife does not stay 

at Robyn’s, Robyn’s reference to “home” can only mean wife’s residence, the location where 

wife returns and relates a new story every day. We conclude husband has established by the 

preponderance of the evidence that Robyn and wife share a common residence. 

(2) “Intimate or romantic involvement.” Id. For five nights a week for at least a year, 

Robyn has slept in wife’s bed in wife’s home and engaged in “consensual sexual acts.” Robyn 

testified that there had been an “exclusive or faithful sexual relationship” for “three years” and 

that they have exchanged diamond rings. We conclude that husband has established by the 

preponderance of the evidence that Robyn and wife are involved in an intimate or romantic 

relationship. 

(3) “The provision of financial support.” Id. at 765, 525 S.E.2d at 617. It is true in this 

case that wife and Robyn do not presently share bank accounts, investment portfolios, or the 

obligation on their respective home mortgages. Nonetheless, Robyn is, as we have concluded 

above, presently sharing a common residence with wife and one to which she contributes no 

financial support. To this extent, then, wife is providing financial support to Robyn. Moreover, 

that common residence permits Robyn to rent her property for $900 per month, with the tenant 

paying all utilities, and thus providing over $10,000 annual rent income to Robyn. We further 

note that wife lent Robyn $8,000 or $9,000 without written evidence of the indebtedness or a 

repayment schedule, thus providing financial support in the past. Finally, the fact that neither 

wife nor Robyn has provided for financial support in futuro, by way of retirement, insurance or 

estate benefits, is of no moment. We are concerned with present, not future, financial 

arrangements. As Robyn wrote in the Christmas letter, wife is busy “putting food on the table,” 

and Robyn is “the most spoiled” and one who “know[s] a good thing when [she] find[s] it.” We 
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conclude that husband has established by the preponderance of the evidence that wife is 

providing and has provided financial support for Robyn.3

(4) “Duration and continuity of the relationship and other indicia of permanency.” Id. 

By Robyn’s testimony, she and wife have been in a “long” relationship for “three years or so.” 

She characterizes the relationship as “exclusive or faithful.” In the Christmas letter Robyn 

recites, “Each day presents a new parenting challenge but together we can and have endured both 

the joy and the frustrations of raising three girls.” In that letter, Robyn details the present 

activities of the children, plans for their futures, and expresses her joy “in watching [these] 

teenagers grow and mature . . . .” Robyn testified she considered herself a “co-parent” to these 

children, ones who are “the closest I’m ever going to have to having children.” It is clear Robyn 

considers herself a surrogate parent to wife’s children, and the evidence does not disclose any 

action on wife’s part to diminish such a status. Wife has designated Robyn as the emergency 

contact for these children, as well as for herself. Robyn and wife routinely wear the diamond 

rings each gave the other. Wife’s answers to requests for admissions did not challenge any of 

this factual evidence. 

At trial, in response to her counsel’s questions, wife only denied that she had ever entered 

into a “contract . . . verbal or in writing . . . [as to either] the longevity . . . or the permanency of 

[her] relationship” and that they had any “ceremony” marking that relationship. Despite the 

absence of a contract or ceremony, it is clear that Robyn and wife view their relationship as a 

durable, continuing, and permanent one, and one that includes the joint raising of wife’s children. 

From these undisputed facts we conclude that husband has established by the preponderance of 

the evidence the requisite relationship between wife and Robyn. 

 3

 We further note that the provision of financial support is not a condition precedent to 

the existence of an arrangement of cohabitation analogous to a marriage. Rather, “[f]inancial 

support is but one of a number of factors” which may support such an analogy. See Frey v. Frey, 

14 Va. App. 270, 272, 416 S.E.2d 40, 41 (1992). 
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In concluding husband had failed to prove the existence of a situation analogous to 

marriage, the trial court noted that wife and Robyn did not present themselves to the public as a 

couple. In so doing, that court may have relied upon dicta in Pelligrin, where it was noted that 

some foreign jurisdictions considered such display a factor “of a more circumstantial nature” in 

determining the existence of a relationship analogous to marriage. Pelligrin, 31 Va. App. at 766, 

525 S.E.2d at 617. That being said, the testimony of both wife and Robyn makes clear why they 

did not present themselves to the public in general as a couple. To do so, they noted, could result 

in an adverse or terminal effect upon their jobs. Thus, we find the trial court’s reliance on this 

factor in its decision unpersuasive. 

Finally, we compare the evidence in the instant cause with that set forth in Penrod v. 

Penrod, 29 Va. App. 96, 510 S.E.2d 244 (1999), where a spousal support termination clause 

defined remarriage as cohabiting and living with a member of the opposite sex in a sexual 

relationship for a period in excess of sixty days. There we affirmed the trial’s finding that the 

termination provisions had been met. 

 Wife admitted staying at Hardman’s house three or four times a week 

over a period of years, sleeping in the same room and sometimes in the 

same bed. Wife also admitted that she kept numerous items of 

personalty, including clothing, at Hardman’s home. Hardman and wife 

vacationed together, usually at Hardman’s expense. Hardman gave wife 

gifts, including a diamond ring. While wife testified that the relationship 

with Hardman was not sexual, other evidence . . . indicated that 

Hardman and wife were involved in a long-term intimate and 

monogamous relationship. Wife admitted in her deposition that she 

consciously caused breaks in the time she stayed at Hardman’s home 

because of the “sixty consecutive days” requirement in the parties’ 

agreement.4

Id. at 101, 510 S.E.2d at 246. 

 4

 Exactly as did wife in this cause. See Part II of this opinion, noting wife’s testimony 

that she would “keep track” of the days to avoid the 30-day portion of the PSA. 
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 A court’s findings “must be based upon evidence concerning the overall nature of the 

relationship, not merely a piecemeal consideration of individual factors . . . .” Id. It is our view 

that the evidence supporting the trial court’s decision in Penrod is substantially less compelling 

than the uncontradicted evidence here. Although the trial court’s conclusion is to the contrary, 

we think the undisputed evidence establishes, as a matter of law, that wife’s relationship with 

Robyn constituted cohabitation in a situation analogous to marriage. See, e.g., Schweider, 243 

Va. at 250, 415 S.E.2d at 138. Accordingly, the conclusion of the trial court that husband failed 

to prove that relationship by the preponderance of the evidence is reversed. 

VI. 

FOR PURPOSES OF CONTRACT INTERPRETATION, MAY INDIVIDUALS OF THE 

SAME SEX COHABIT IN A SITUATION ANALOGOUS TO MARRIAGE UNDER 

VIRGINIA LAW? 

 The trial court was persuaded that “in Virginia, where marriage between persons of the 

same sex is barred -- ‘cohabit’ has to mean between people of the opposite sex . . . as a matter of 

law, in Virginia, people of the same sex cannot cohabit, and that’s how the PSA was written.” 

 In reaching this conclusion the trial court specifically relied upon a 1994 opinion of the 

Attorney General. 1994 Op.Atty Gen. Va. 60. There the General opined that Code 

§ 18.2-57.2(A), which criminalizes assault and battery in a situation where the defendant and 

victim cohabit, is not applicable to same sex cohabitation. 

 Initially we note that an Opinion of the Attorney General, while entitled to due 

consideration, is not binding upon a court. Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 

200 (2004). See also Virginia Beach v. Virginia Rest. Ass’n, Inc., 231 Va. 130, 135, 341 S.E.2d 

198, 201 (1986). That being said, in this case we are concerned with a contract between a man 

and a woman, husband and wife, not a statute defining or to be interpreted as defining 

“cohabitation,” which is the subject of the Opinion on which the trial court relied. 
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Such a distinction was emphasized by this Court in O’Hara v. O’Hara, 45 Va. App. 788, 

613 S.E.2d 859 (2005). There, the issue was the correct standard of proof of cohabitation -- 

preponderance of the evidence or clear and convincing evidence -- applicable to a property 

settlement agreement. We held: 

Accordingly, Code § 20-109(A), and its clear and convincing 

burden of proof, does not apply to this case involving the 

enforcement of a negotiated agreement between husband and wife. 

Rather, because this case involves an action to enforce a contract 

between the parties, husband’s burden was to prove by a 

preponderance of the evidence that wife habitually cohabited with 

another person in a relationship analogous to a marriage for one 

year or more, not to prove cohabitation by clear and convincing 

evidence. 

Id. at 796, 613 S.E.2d at 863. 

The language of the PSA also contains the phrase “analogous to marriage.” A 

relationship “analogous to marriage” does not mean a “marriage.” Rather, “analogous” is 

defined as “similar in some way.” Webster’s Dictionary 17 (Michael Agnes ed., Wiley 

Publishing, Inc. 2002). See also The American Heritage Dictionary of the English Language 65 

(3d ed. 1992). This Court defined “similar” in Frederick Fire & Rescue v. Dodson, 20 Va. App. 

440, 446, 457 S.E.2d 783, 786 (1995) (quoting Black’s Law Dictionary 1383 (6th ed. 1990)): 

The word similar “is generally interpreted to mean that one thing 

has a resemblance in many respects, nearly corresponds, is 

somewhat like, or has a general likeness to some other thing but is 

not identical in form and substance.” 

(Emphasis added). 

 Our analysis of the phrase “analogous to marriage” in the PSA is based upon the factual

relationship of wife and Robyn, and explicitly does not purport to grant, or comment upon, any 

legal status of that relationship. Succinctly stated, that relationship, as established by the facts, is 

similar “but not identical in form and substance” to a marriage. 
- 15 -

For a congruent reason, wife’s reliance on brief on the provisions of Code § 20-45.2 and 

Code § 20-45.3 is misplaced. The former prohibits same sex marriages in Virginia. The latter 

prohibits same sex civil unions, partnership contracts, or other arrangements purporting to grant 

the privileges and obligations of marriage. As stated above, our holding in this case explicitly 

does not grant any legal status to the relationship between wife and Robyn. 

Accordingly, neither the trial court nor this Court is required to review the relationship 

between wife and Robyn with respect to matters of public policy as set forth in those statutes. 

Indeed, wife specifically testified that she and Robyn had never entered into a “contract” with 

respect to their relationship, nor participated in any “ceremony” concerning the same. In short, 

Code §§ 20-45.2 and 20-45.3 are irrelevant to the issue here raised. Thus, we do not address 

their application. 

In accordance with the foregoing, we hold the trial court erred in concluding that, for the 

purposes of interpreting the contract between husband and wife, same sex individuals may not 

cohabit in Virginia as a matter of law. The cause is remanded to the trial court for entry of a 

decree conforming to this opinion. 

VII. 

ATTORNEY’S FEES 

 Wife assigns as error the refusal of the trial court to grant her attorney’s fees. 

 In Price v. Price, 4 Va. App. 224, 237, 355 S.E.2d 905, 912 (1987) (citation omitted), we 

held, “An award of attorney’s fees is within the sound discretion of the court, and will not be 

disturbed on appeal absent evidence of abuse.” See also Rowand v. Rowand, 215 Va. 344, 

346-47, 210 S.E.2d 149, 151 (1974); Ellington v. Ellington, 8 Va. App. 48, 58, 378 S.E.2d 626, 

631 (1989). That discretion is based upon a consideration of “the circumstances and equities of 

the entire case.” Gamer v. Gamer, 16 Va. App. 335, 346, 429 S.E.2d 618, 626 (1993); Clayberg 
- 16 -

v. Clayberg, 4 Va. App. 218, 223, 355 S.E.2d 902, 905 (1987). The trial court found the 

evidence “in equipoise” and that “the issue was close enough that an award of attorney’s fees 

would be inappropriate.” Though our view of the evidence differs from that of the trial court, we 

conclude the trial court did not abuse its discretion as to the request for attorney’s fees. That 

conclusion, as to wife’s request, is strengthened by our decision in this cause. 

Affirmed in part,

reversed in part,

and remanded.