COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Agee and Senior Judge Coleman 

Argued at Salem, Virginia 

FLAVIA DIAZ de TANGER 

 MEMORANDUM OPINION* BY 

v. Record No. 2017-00-3 JUDGES SAM W. COLEMAN III 

 AUGUST 7, 2001 

WILLIAM HENRY TANGER, III 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 Flavia Diaz de Tanger, pro se. 

 Harwell M. Darby, Jr. (Glenn, Feldmann, 

Darby & Goodlatte, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 In this domestic relations appeal, we decide whether the 

trial judge erred by terminating the spousal support of Flavia 

Diaz de Tanger, appellant, pursuant to Code § 20-109(A) for 

cohabiting in a relationship analogous to marriage. The trial 

judge found that appellant was and had been habitually cohabiting 

with another person in a relationship analogous to a marriage for 

one year or more "since July 1, 1997." Appellant contends that 

the trial judge erred by finding that the relationship was 

analogous to marriage and in terminating her spousal support 

because termination was unconscionable. She also asserts that the 

trial judge erred in failing to accept into evidence certain 
documents she proffered. Finding no error, we affirm the trial 

judge's decision. 

 Appellant and William Henry Tanger, III, appellee, were 

divorced in 1981. The parties did not enter into a property 

settlement or other separation agreement that would have affected 

spousal support. By final decree dated November 21, 1996, the 

trial judge awarded appellant spousal support of $700 per month. 

In July 1999, appellee filed a motion to terminate spousal support 

on the ground that appellant had been cohabiting for a period of 

at least one year commencing on or after July 1, 1997 with a Mr. 

Pringle in a relationship analogous to marriage. See Code 

§ 20-109(A). Appellant filed a motion to increase the amount of 

monthly spousal support. 

 On February 25, 2000, the trial judge heard evidence on the 

motions which resulted in the trial judge's termination of spousal 

support. Appellant contends that the evidence fails to prove that 

her relationship with Pringle was cohabitation analogous to a 

marriage. At the hearing, the evidence proved that appellant has 

lived in Pringle's residence since 1995. Appellant's adult 

daughter also resided in Pringle's home for a period of two or 

three years. Appellant pays Pringle no rent, and she pays no 

utility bills. Appellant testified she resides in an apartment 

within Pringle's house that is separate from Pringle's living 

quarters. Pringle and appellant testified they do not have a 

sexual relationship, and they do not sleep together. 

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 Appellant and Pringle represented that their relationship is 

solely a business arrangement. Pringle, who owns his business, 

stated that appellant runs errands for the business and performs 

secretarial tasks for him. He stated that appellant also 

corresponds with companies he deals with in Mexico because she 

speaks fluent Spanish. Pringle testified that appellant is 

compensated for her services by living rent-free in his residence 

and by having limited use of one of his cars. Pringle stated that 

he typically rented the apartment occupied by appellant for $400 

per month. Pringle's business also pays appellant's health 

insurance. 

 Appellant uses credit cards issued in Pringle's name to 

purchase food, to pay for her dental care, and to pay for gasoline 

when she drives Pringle's car. Appellant also pays her athletic 

club membership with Pringle's credit card. A dog belonging to 

appellant's daughter was housed at Pringle's residence for about 

five years, including several years after the daughter had left 

the residence. Appellant paid the dog's veterinary bills with 

Pringle's credit card. 

 Pringle testified that appellant is not required to obtain 

his permission before using his credit cards, but she must 

reimburse him for the items she purchases with his credit card. 

Appellant testified she reimburses Pringle in cash for the use of 

his credit cards, but she had no records to verify these payments. 

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 Appellant and Pringle testified they occasionally eat meals 

together and have traveled together to Mexico where they stayed 

with appellant's family. Appellant accompanied Pringle to visit 

his father after the father had a stroke. Pringle accompanied 

appellant to visit her daughter in Connecticut when the daughter 

was recovering from an accident. Appellant and Pringle have 

traveled together to Europe several times. They testified that 

these trips were business trips during which they attended trade 

shows related to Pringle's business. 

 Appellant testified she does not cook or clean for Pringle. 

She does not launder his clothing, and she pays for her own food. 

 The trial judge did not believe the testimony of appellant 

and Pringle that their relationship was "purely and solely a 

business relationship." The trial judge found that "clear and 

convincing evidence" proved that appellant and Pringle "have 

habitually been cohabiting with one another in a relationship 

analogous to marriage for one year or more commencing on or after 

July 1, 1997." The trial judge stated that he specifically relied 

on the appearance and demeanor of the witnesses while they 

testified in making this finding. The trial judge also stated 

that, in making his decision, he considered such facts as: 

appellant's daughter residing at Pringle's residence for a period 

of time; appellant's and Pringle's visits to each other's 

families; Pringle providing long term care for appellant's 

daughter's dog; and the "extraordinary implausibility of the 

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proposition" that appellant reimbursed Pringle solely in cash 

while keeping no business records concerning the transactions. 

The trial judge found that the lack of a sexual relationship was 

"nearly irrelevant" to the question of whether the cohabitation 

was analogous to a marriage. 

 At the conclusion of the February 25, 2000 hearing, the trial 

judge reserved his ruling on the issue of whether spousal support 

would be decreased or terminated. On May 12, 2000, the trial 

judge heard evidence on the issue of whether termination of 

appellant's spousal support would be unconscionable.1

 Appellee testified he earns $380 per week, and his monthly 

net income is $529. Appellee's adjusted income for calendar year 

1999 was about $20,000. Appellee stated that his net worth is 

about $100,000, and he presented evidence that his monthly living 

expenses reflected a shortfall of several thousand dollars. 

 Appellant, who has a college degree in art history and 

Spanish literature, testified her income and expenses had not 

changed since 1996. In the past, appellant had been a Spanish 

language court interpreter, but she no longer works as a court 

interpreter because she failed to pass the certification test. 

 1

 The parties agreed to proceed under the terms of Code 

§ 20-109(A) as amended and approved by the Governor on April 2, 

2000. The General Assembly, in 2000, amended Code § 20-109(A) by 

substituting "shall" for "may decrease or" and by substituting "be 

unconscionable" for "constitute a manifest injustice." See 2000 

Va. Acts, ch. 218. 

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Appellant stated she has no money in the bank, owns no real 

estate, and holds no credit cards. She testified that Pringle 

does not give her financial support, and she has been unable to 

find employment other than with Pringle. Appellant admitted that 

subsequent to 1996 she has made only four telephone calls in 

search for employment and those were to friends. Appellant 

testified that Pringle no longer allowed her to use his credit 

cards. Otherwise, she continued to live at Pringle's home under 

the same arrangement. 

 The trial judge found that appellant failed to meet her 

burden of proving that termination of her spousal support would be 

unconscionable. 

 At the May 12, 2000 hearing, appellant proffered a binder of 

documents that she asserted were relevant to the issue of 

unconscionability. The trial judge refused to admit the documents 

into evidence, ruling that all documents were either already in 

the record or were irrelevant to unconscionability. Appellant 

appeals the trial judge's rulings. 

TERMINATION OF SPOUSAL SUPPORT

 Code § 20-109(A) provides: 

Upon petition of either party the court may 

increase, decrease, or terminate the amount 

or duration of any spousal support 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 

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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 receiving support proves by a 

preponderance of the evidence that 

termination of such support would be 

unconscionable. 

 Appellant contended on brief and at oral argument that this 

Court's panel decision in Rubio v. Rubio, 33 Va. App. 74, 531 

S.E.2d 612, reh'g en banc granted, mandate stayed, 33 Va. App. 

440, 534 S.E.2d 336 (2000), controls this case. The panel held 

in Rubio that Code § 20-109 did not apply retroactively to 

spousal support decrees entered before July 1, 1998. Id. at 77, 

531 S.E.2d at 613-14. The panel decision in Rubio was stayed 

pending an en banc decision. Rubio has been decided en banc and 

that decision vacated the panel's decision upon which appellant 

relies. See Rubio v. Rubio, ___ Va. App. ___, ___, ___ S.E.2d 

___, ___ (2001) (en banc). Furthermore, the en banc holding in 

Rubio does not control or affect our decision in the present 

case since no spousal support agreement exists between the 

parties here. The Rubio decision held that the terms of the 

spousal support agreement controlled so that the cohabitation 

disqualifier in Code § 20-109(A) did not apply. Id.

 In 1998, the legislature "amended and 

reenacted" Code § 20-109(A), adding the 

words "the amount or duration of any" to the 

first sentence. See 1998 Va. Acts, ch. 604. 

The Act specifically provided "[t]hat 

Section 20-109 of the Code of Virginia [is] 

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. . . reenacted as follows." Id. It 

further provided "[t]hat the provisions of 

this Act shall apply only to suits for 

initial spousal support orders filed on or 

after July 1, 1998, and suits for 

modification of spousal support orders 

arising from suits for initial support 

orders filed on or after July 1, 1998." Id.

Rubio, ___ Va. App. at ___, ___ S.E.2d at ___. 

 Our decision is controlled by the effect of Code 

§ 20-109(A) upon support decrees entered before July 1, 1998, 

the effective date of the cohabitation disqualification where no 

spousal support agreement exists between the parties. 

Significantly, the General Assembly in its 2001 session, as a 

result of the panel's decision in Rubio, passed Senate Bill 1014 

and House Bill 2215, amending and reenacting Code § 20-109. See

2001 Va. Acts, chs. 725 and 740. The Governor signed these 

bills into law on March 26, 2001. Although those bills were 

enacted during the pendency of the present suit, they did not 

change the provisions of Code § 20-109 as applied to this case. 

Rather, the 2001 Acts of the General Assembly were clarifying 

and declaratory of existing law. 

 Furthermore, by 2001 Va. Acts, ch. 720, the General 

Assembly provided: 

Be it enacted by the General Assembly of 

Virginia: 

1. That the Code of Virginia is amended by 

adding a section number 1-13.39:3 as 

follows: 

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§ 1-13.39:3. Statutory construction of 

titles and enactment clauses. 

Whenever the word "reenacted" is used in the 

title or enactment of a bill or act of 

assembly, it shall mean that the changes 

enacted to a section of the code of Virginia 

or an act of assembly are in addition to the 

existing substantive provision in that 

section or act, and are effective 

prospectively unless the bill expressly 

provides that such changes are effective 

retroactively on a specified date. 

The provisions of this section are 

declaratory of existing public policy and 

law.

2. That the provisions of this act are 

intended to reverse the ruling in Rubio v. 

Rubio, 33 Va. App. 74, 531 S.E.2d 612 

(2000). 

3. That an emergency exists and this act is 

in force from its passage. 

(Emphasis added). This Act states plainly the legislative 

intent that the limitation upon application set forth in 1998 

Va. Acts, ch. 604, addressed only the amendments effected by 

that Act and, with respect to Code § 20-109(A) applied only to 

the language "the amount or duration of any" that was added to 

the first sentence. 

 Moreover, both chapters 725 and 740 of the Acts of Assembly 

contain the following sentence after the last line of 

Code § 20-109(A)(ii): "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 

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petition for modification of support." Therefore, the 

legislature's latest revision of Code § 20-109 controls this 

case. The statute makes clear that its provisions including the 

clarification that no time limitation relates to the forfeiture 

provision for "cohabitation analogous to a marriage," apply to 

this case. 

 Under familiar principles, "we construe the evidence in the 

light most favorable to [appellee], the prevailing party below, 

granting to him all reasonable inferences fairly deducible 

therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818, 448 

S.E.2d 884, 885 (1994) (citation omitted). 

 We find that the trial judge did not err in terminating 

appellant's spousal support award. 

[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) 

(citations omitted). Cohabitation is also defined as "[t]he 

fact or state of living together, esp. as partners in life, usu. 

with the suggestion of sexual relations." Black's Law 

Dictionary 254 (7th ed. 1999). 

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 Factors relevant to the determination of whether 

cohabitation has been proved include: common residence, 

intimate or romantic involvement, the provision of financial 

support, and the continuity and duration of a relationship. 

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. "[I]t 

is within the province of the trial [judge] to determine what 

weight to accord each of the factors relevant to the matter 

presented." Id.

 Credible evidence supported the trial judge's finding that 

appellant cohabited with Pringle in a relationship analogous to 

marriage for one year commencing on or after July 1, 1997. 

Appellant has lived in Pringle's residence since 1995. She 

receives in-kind rent, ostensibly in exchange for performing 

secretarial duties for Pringle. She makes no utility payments. 

Appellant's daughter and dog also resided in Pringle's house for 

several years. Appellant used Pringle's credit cards and his 

car for her personal use. Although she stated that she 

reimbursed Pringle in cash when she used his credit cards, she 

produced no records of those payments. Appellant and Pringle 

traveled together to visit their families. In addition, 

appellant and Pringle traveled together to Europe on several 

occasions. Although appellant and Pringle testified that those 

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trips were for business purposes only, the trial judge did not 

accept their testimony that their relationship was "purely and 

solely a business relationship." "The credibility of the 

witnesses and the weight accorded the evidence are matters 

solely for the fact finder who has the opportunity to see and 

hear that evidence as it is presented." Sandoval v. 

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). 

 "A finding of 'cohabitation' must be based upon evidence 

concerning the overall nature of the relationship, not merely a 

piecemeal consideration of individual factors such as its sexual 

or financial components." Penrod v. Penrod, 29 Va. App. 96, 

101, 510 S.E.2d 244, 246 (1999). Viewed as a whole, the 

evidence supports the trial judge's finding that appellant and 

Pringle cohabited in a relationship analogous to marriage. 

 Furthermore, appellant failed to prove that termination of 

spousal support was unconscionable. "[U]nconscionability is 

. . . concerned with the intrinsic fairness . . . in relation to 

all attendant circumstances, including the relationship and 

duties between the parties." Derby v. Derby, 8 Va. App. 19, 28, 

378 S.E.2d 74, 78 (1989) (interpreting validity of a separation 

agreement). 

 The trial judge heard evidence of the parties' financial 

needs and financial circumstances. Although appellant asserts 

she can find no employment other than with Pringle, she has a 

college degree and is bilingual. She also admitted that she had 

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made only four telephone calls to friends in her search for 

other employment. Furthermore, under her arrangement with 

Pringle, appellant pays no rent, no utilities, no car payments, 

and no real estate taxes. Pringle's business pays for her 

health insurance coverage. In other words, appellant has few 

living expenses. 

 Moreover, appellee represented that his net monthly income 

was $529 and his adjusted income for the year 1999 was about 

$20,000. Based upon the evidence presented, particularly in 

light of appellee's ability to pay in relation to appellant's 

financial needs, the trial judge did not err in ruling that the 

termination of spousal support was not unconscionable. 

PROFFERED EVIDENCE

 At the May 12, 2000 hearing, appellant proffered documents 

that she contends address the issue of whether the termination 

of her spousal support is unconscionable. Appellant's counsel 

conceded at the time of the proffer that "the majority of it is 

information that [appellant] has gone back and gleaned from the 

record . . . ." 

 The first document in the binder is a biographical history 

of appellant's family background and a history of her 

relationship with appellee. In general, other materials in the 

binder include marriage documents, and pleadings and depositions 

from other lawsuits between the parties and lawsuits involving 

one of the parties. The binder also includes flyers from trade 

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shows, miscellaneous newspaper articles, and miscellaneous 

correspondence. 

 The trial judge ruled that, to the extent that the 

documents had previously been made a part of the record, those 

documents were "a part of the record already." Furthermore, the 

trial judge ruled that the materials were "far afield about 

matters that have gone on over the last thirty years or so." 

Concerning appellant's biographical narrative, the trial judge 

stated, "[U]pon a cursory look at this narrative, [it] seem[s] 

not to have anything to do with economic impact and seem[s] to 

be set forth in an effort to incline the reader against 

[appellee] and in favor of [appellant] . . . ." The trial judge 

ruled that if he admitted the proffered materials into evidence, 

appellee would then be allowed to submit materials in rebuttal, 

and those materials would be "just as far afield and just as 

irrelevant as the initial material." 

 Evidence ordinarily is admissible if it "is both material--

tending to prove a matter that is properly at issue in the 

case--and relevant--tending to establish the proposition for 

which it is offered." Johnson v. Commonwealth, 2 Va. App. 598, 

601, 347 S.E.2d 163, 165 (1986). We find that the materials are 

either irrelevant and immaterial to the issue of 

unconscionability, or are cumulative of evidence properly before 

the trial judge from the testimony of the witnesses and from 

documents previously made a part of the record. Therefore, the 

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trial judge did not err in refusing to admit the proffered 

materials into evidence. 

 Accordingly, the judgment of the trial judge is affirmed. 

 Affirmed. 

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