COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

BETTIE W. PENROD 

 OPINION BY 

v. Record No. 0650-98-4 JUDGE WILLIAM H. HODGES 

 FEBRUARY 2, 1999 

JAMES E. PENROD 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Marcus D. Williams, Judge 

 Thomas P. Mains, Jr. (Mains & Mains, L.C., on 

brief), for appellant. 

 David D. Masterman (Condo & Masterman, P.C., 

on brief), for appellee. 

 Bettie W. Penrod (wife) appeals the decision of the circuit 

court terminating her spousal support payments. Wife contends 

the trial court erred when it found that James E. Penrod 

(husband) established that she cohabitated with a man for more 

than sixty consecutive days so as to be "remarried" under the 

terms of the parties' separation agreement. Finding no error, we 

affirm the decision of the trial court. 

 Under familiar principles, "we construe the evidence in the 

light most favorable to husband, 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). 

 A separation agreement . . . is a contract 

and must be construed as such. Where the 

agreement is plain and unambiguous in its 

terms, the rights of the parties are to be 

determined from the terms of the agreement 

and the court may not impose an obligation 

not found in the agreement itself. 
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Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764 

(1994). "[O]n appeal if all the evidence which is necessary to 

construe a contract was presented to the trial court and is 

before the reviewing court, the meaning and effect of the 

contract is a question of law which can readily be ascertained by 

this court." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 

342, 346 (1987). 

 Wife and husband entered into a property settlement 

agreement in December 1987 in connection with their divorce and 

separation. The trial court ratified, affirmed, and incorporated 

the agreement into the final decree of divorce. The court 

entered that decree on December 31, 1987. In pertinent part, the 

agreement provided: 

 12. The Husband shall pay to the Wife 

as and for her support and maintenance the 

sum of Five Hundred Dollars ($500) per month, 

commencing on the thirtieth (30th) day of the 

month in which this Agreement is fully 

executed. The payments shall continue 

thereafter on the thirtieth (30th) day of 

each and every month until the Husband's 

obligation to provide child support pursuant 

to paragraph 11(b) ceases, at which time the 

amount the Husband shall pay to the Wife as 

and for her support and maintenance shall 

increase to Eight Hundred Dollars ($800) per 

month. The Husband's obligation to pay 

spousal support is nonmodifiable as to amount 

and shall continue until the Wife remarries, 

dies, or until the Husband's death, whichever 

event occurs first. For the purposes of this 

Agreement, the Wife shall be deemed to have 

"remarried" in the event she cohabits and 

lives with a member of the opposite sex in a 

sexual relationship without the benefit of 

marriage for a period in excess of sixty (60)

consecutive days. 
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The underlined phrases were handwritten and initialed additions 

to the typed agreement. The closing phrase "or with the same 

individual for a period in excess of thirty (30) days during a 

consecutive twelve (12) month period" was crossed out. 

 On December 1, 1995, husband filed a motion to terminate 

spousal support and for restitution based on fraudulent receipt 

of spousal support. Husband alleged that wife committed fraud by 

cohabiting with Gerald Hardman. At a March 4, 1998 hearing, 

husband and a private investigator testified. The parties also 

introduced the depositions of wife, the parties' eldest daughter, 

and Hardman's oncologist. 

 The uncontested evidence established that wife lived in a 

house owned by Hardman in Virginia after the parties divorced. 

Wife relocated to Florida in 1989. Hardman moved to the same 

area. Wife maintained an apartment in Florida but kept 

"valuable" items at Hardman's home. Wife stayed at Hardman's 

house three or four nights a week during the period through 1995, 

often sleeping in the same bed. Wife could be reached by 

telephone at Hardman's home, not at her apartment. Wife had keys 

to Hardman's home. Wife displayed her family photographs at 

Hardman's home. One of the parties' daughters lived in wife's 

apartment and paid the utilities, although wife paid the 

mortgage. Wife and Hardman vacationed together, largely, if not 

entirely, at Hardman's expense. 

 Husband testified that wife admitted she had at least one 
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sexual encounter with Hardman during the parties' marriage. Wife 

denied ever having a sexual relationship with Hardman, although 

she admitted that Hardman was not seeing anyone else. In his 

deposition, Hardman's oncologist stated that Hardman reported 

having sex every two weeks in January 1994, but said the 

frequency had dropped to every three weeks by May 1994 following 

Hardman's treatment for prostate cancer. Hardman's medical file 

also contained a notation dated November 1994 in which Hardman 

reportedly told his doctor that he lived with a friend who would 

lose alimony if they lived together for more than sixty days, 

that it was a friendship only and not a sexual relationship, and 

that he would like his records if requested. 

 Wife contended that Hardman's home was larger and more 

secure than her apartment. She admitted that she was conscious 

of the restriction in the parties' agreement and denied ever 

cohabitating with Hardman for sixty consecutive days. 

 In Schweider v. Schweider, 243 Va. 245, 415 S.E.2d 135 

(1992), the Virginia Supreme Court stated 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.'" 

Id. at 248, 415 S.E.2d at 137. The Court further stated that 

"[w]hile 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 
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the marital relationship.'" Id. (citation omitted). The 

parties' agreement in Schweider provided that spousal support 

would terminate upon wife's remarriage, which was defined to 

include "'the wife's permanent cohabitation with a male as if to 

all appearances they were otherwise married.'" The evidence in 

Schweider proved that wife and her live-in companion purchased a 

home together, shared the master bedroom and closet, shared 

mortgage and utility expenses, and had a sexual relationship. 

The trial court found that wife's permanent relationship with her 

companion was a matter of economic necessity and that they acted 

more like roommates than spouses. The Supreme Court reversed the 

trial court's decision, finding that the undisputed evidence 

established that wife's relationship was a "remarriage" for 

purposes of the parties' agreement. "We cannot conceive of what 

conduct the husband and the wife contemplated if that conduct did 

not include at least the wife's sharing a bedroom with another 

man for a substantial amount of time since 1988." Id. at 250, 

415 S.E.2d at 138. 

 In Frey v. Frey, 14 Va. App. 270, 416 S.E.2d 40 (1992), the 

wife had a sexual relationship with her live-in companion but 

maintained separate finances. We reversed the trial court's 

finding that the phrase "'cohabitation, analogous to a marriage' 

necessarily require[d] an agreement or arrangement between the 

[wife and her live-in companion] . . . in regard to financial 

support." Id. at 272, 416 S.E.2d at 41. We held 

 that the phrase, "cohabitation, analogous to 
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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." 

Id. at 275, 416 S.E.2d at 43 (citations omitted). 

 Here, credible evidence supports the trial court's finding 

that wife and Hardman were involved in an ongoing relationship 

analogous to marriage. To a private investigator posing as a 

real estate buyer interested in buying Hardman's house, wife 

described herself as living in Hardman's house for the past four 

or five years. 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 which the trial court found more 

credible 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. The trial court found 
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that wife returned to her separate apartment for a portion of 

each week in an attempt to circumvent the language in the 

parties' agreement triggering the cessation of spousal support. 

 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. Viewed as a whole, the trial court 

found that wife's long-term relationship with Hardman amounted to 

cohabitation and living in a sexual relationship for a period in 

excess of sixty consecutive days. That finding is supported by 

credible evidence. Therefore, pursuant to the parties' 

agreement, wife was no longer entitled to spousal support. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed.