COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Alston and Senior Judge Coleman Argued at Richmond , Virginia

GORDON DAVID BELCHER MEMORANDUM OPINION * BY v. Record No. 2226

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- 2 JUDGE SAM W. COLEMAN III MAY 29, 2012 CAROLYN BISHOP BELCHER

F ROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler , Judge Robert W . Partin (Locke Partin DeBoer & Quinn, on brief s ) , for appellant. Thomas L. Gordon (Gordon, Dodson, Gordon & Rowlett, on brief) , for appellee.
George David Belcher (husba nd) appeals from the trial court ’ s denial of his motion to termi nate spousal support. Husband contends that the trial court erred by holding that the spousal suppo rt termination events in Code § 20

- 109(A), specifically wife’ s habitual cohabitation with an other person, did not apply to the parties because the only termination event expressly stated in the parties’ a greement was wife’ s remarriage. Furthermore, husband argues that the trial court erred by holding that husband gifted his portion of the joint checking account to wife and not crediting him wi th payment of spousal support. Upon reviewing the record and briefs of the parties, we affirm the trial court’s decision in part, reverse in part, and remand this case to the trial court for further proceed ings consistent with this opinion.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- BACKGROUND The parties married on August 4, 1979 , and separated on January 1, 2004. On June 1,
2006 , they entered into an a greement , which included a provision for spousal support. The

a greement obligated husband to p ay wife $10,000 per month beginning July 2007 through June 2017. Beside the ending date the husband hand wrote, “spousal support stops if wife (Carolyn B. Belcher) remarries.” Wife initialed this handwritten sentence inserted in the a greement. On Septemb er 15, 2006, the trial court entered the final divorce decree, which affirmed, ratified, and incorporated, but did not merge the a greement and s tipulation . The final decree stated, “The periodic spousal support is $10,000 per month, payable on the 1 st day of each month and continuing thereafter through the June 2017 payment after which Husband’s obligation to provide support shall cease unless said support is earlier terminated pursuant to the Agreement and Stipulation dated June 1, 2006. ”
I n May 2011, wi fe filed a petition, asking the trial court to find husband in contempt for his failure to pay spousal support as ordered. Wife alleged that husband was $86,000 in arrears.
That same month , husband filed a motion to terminate spousal support a sserting th at wife was in violation of Code § 20

- 109 and had forfeited her right to spousal support by cohabitating with another man in a relationship analogous to marriage for more than one year

. T he trial court heard argument from counsel regarding husband’s motio n to terminate spousal support. The trial court found that the a greement was unambiguous , and pursuant to the

a greement, the only event for which it provided termination of spousal support was upon wife’s remarriage. Accordingly, the trial court ruled th at the termination events set forth in Code § 20

- 109 were not applicable because the parties’ a greement controlled

. The trial court thus denied husband’s motion to terminate spousal support. The trial court memorializ ed its ruling in

an October 7, 2011 o rder

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- In a separate hearing , the trial court heard evidence and argument regarding husband’s failure to pay spousal support. Husband argued that wife received $60,000 from his share of the joint checking account and that amount should be credited against any spousal support arrearage

. The trial court found that husband was in arrears $74,000. The trial court concluded that husband gave the $60,000 to wife as a gift and , thus, did not credit that amount against the $74,000 arrearage

. The trial court ent ered an order memorializing its rulings on October 25, 2011. Husban d timely appealed both orders.
ANALYSIS Termination of Spousal Support Husband argues that the trial court erred in holding that none of the termination events in Code § 20

- 109, except fo r wife’s remarriage, applies to the parties’ a greement and the termination of husband’s spousal support obligation. We agree. The parties’ a greement, dated June 1, 2006, included the handwritten statement that “Spousal support stops if wife (Carolyn B. Be lcher) remarries.” The a greement did not state specifically that spousal support terminated if either party died or if wife cohabited with someone analogous to marriage. The trial court concluded: The Court finds that the agreement is clear, concise, tha t it does not include the parameters for termination that are set forth in 20

- 109(a), other than the parameter that the parties both agree that support stops if the wife remarries. Had it been the intent of the parties to do otherwise, they could have put in the rest of those parameters set forth in the statutory language. It was not in here. The Court cannot reconstruct the agreement to include language which was excluded when only part of it was included. Therefore I’m finding that the agreement preva ils and that the provisions pertaining to whether or not the wife cohabits in a relationship akin to a marital relationship are not applicable to this case.- 4

- “‘ We review the trial court’s statutory interpr e tations and legal conclusions de novo .’” Craig v. Craig , 59 Va. App. 527, 539, 721 S.E.2d 24, 29 (2012) (quoting Navas v. Navas , 43
Va. App. 484, 487, 599 S.E.2d 479, 480 (2004) ). Prior to 1997, the Code listed two events, namely remarriage or death, as occurrences that terminat e spousal support. In 19 97, the General Assembly amended Code § 20

- 109 to include cohabitation as a termination event. Currently, Code § 20

- 109(A) provides : Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal suppor t and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. 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 (i) otherwise provided by stipulation or contract or (ii) the spouse re ceiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petiti on for modification of support. T his Court has explained that under the current statute , “ [I] n cases involving cohabitation, remarriage, or death

. . . the stipul ation or contract must expressly preclude termination of the contractual duty of spousal support on these grounds. If it fails to do so, the contractual obligation may be terminated. ” Newman v. Newman , 42 Va. App. 557, 570, 593 S.E.2d 533, 540 (2004) ( en banc ); s ee also Baldwin v. Baldwin , 44 Va. App. 93, 101, 603 S.E.2d
172 , 175 (2004) (“ [W] hether a statutory bar to spousal support must be expressly included in the agreement as a ground for termination or expressly excluded depends entirely on whether th e agreement predates or postdates the legislative enactment creating the bar. ”).- 5

- Here, the a greement postdated the 1997 amendment s to Code § 20

- 109 allowing for termination of spousal support based on habitual cohabitation. Since the a greement did not

ex pressly preclude cohabitation as a possible termination event, cohabitation remained a viable ground for termination of spousal support. T he trial court erred in denying husband’s motion to terminate spousal support. The matter is remanded for the partie s to present evidence to the tr ial court on husband’s motion to terminate spousal support

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Donative I ntent for G ift Next, h usband argues that the trial court erred in finding that he gifted his portion of the checking account to wife and not crediting hi m $60,000 for the amount owed to wife for spousal support. We disagree. The a greement stated that the parties agreed to divide equally the balance in the joint

account. The parties stipulated that the joint account had a balance of $120,000 and that wif e received the full amount. Husband testified that he let wife have his share of the balance of the account because it was “ the right thing to do.” Wife confirmed, “He never pursued it. I just assumed it was mine when he told me it was.” The trial cour t held, “Mr. Belcher had testified that he let her have access to the full $120,000 because he felt it was the right thing to do .

. . even though he was, by the agreement, entitled to $60,000 of that .

. . . I’m also finding that he let her have it as a g ift .

. . .” Wife had the burden to prove by clear and convincing evidence that the transfer of the $60,000 was a gift. Utsch v. Utsch , 266 Va. 124, 128, 581 S.E.2d 507, 508

- 09 (2003)

. “ The

1 Wife alternatively argues that the trial court found that ending her spousal support based upon her cohabitation would be unconscionable, pursuant to Code § 20

- 109(A)(ii). However, neither party raised the issue of uncons c ionability below. Reviewing the transcript, the trial court’s c omment that “i t would seem that it would be inequitable at this time for the Court to rule that the agreement does not control , ” was a simple observation of the fairness of requiring the parties to comply with the contract as written, rather than a ruling of uncons c ionability.- 6

- three elements of a gift ar e: (1) intention on the part of the do nor to make a gift; (2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee. ” Th e ismann v. Theismann , 22
Va. App. 557, 566 , 471 S.E.2d 809 , 813 (citing 9A Michie’s Jurisprudence, Gifts § 8 (1991) ), aff’d on reh’g en banc , 23 V a. App. 697, 479 S.E.2d 534 (1996)

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“ [D] etermination of donative intent is one of fact .” Sfreddo v. Sfreddo , 59 Va. App. 471, 480, 720 S.E.2d 145, 150 (2012) (citing Utsch , 266 Va. at 128, 581 S.E.2d at 508

- 09). The trial court had the opportunity to see and hear the witnesses. Cirrito v. Cirrito , 44 Va. App. 287, 304, 605 S.E.2d 268, 276 (2004)

. Considering we view the evidence in the light most favorable to wife, Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted), we find that the trial court did not err in concluding wife met her burden of proving by clear and convincing evidence that husband gifted the $60,000 to wife

. The trial court’s ruling is affirmed.
CONCLUSION For the reasons discussed above, we affirm i n part, reverse in part, and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part,

and remanded.