SCOVA Watch: Does Virginia’s spousal support termination statute encompass cohabitation of same-sex couples?

By on December 7, 2015

[Note: SCOVA Watch will be a recurring series of posts highlighting select petitions for appeal granted by the Supreme Court of Virginia that may interest practitioners]

On November 10, 2015, the Supreme Court of Virginia granted an appeal in Luttrell v. Cucco, Record No. 150770. Although the granting of the case did not make the news (they rarely do!), this case has the potential to be a headline-grabbing decision in 2016. Two assignments of error capture the import of the case:

  1. The Court of Appeals erred by holding that the term “cohabiting with another person in a relationship analogous to a marriage” as used in Virginia Code § 20-109 does not include cohabitation of same-sex couples.
  1. The Court of Appeals erred by holding that the term “cohabitation” as used in the parties’ property settlement agreement and divorce decree does not include cohabitation of same-sex couples.

The Issue

The facts (as outlined in the decision by the Court of Appeals) are as follows. Michael Luttrell (‘Luttrell”) and Samantha Cucco (“Cucco”) were married in 1992, divorced in 2007, and ratified a property settlement agreement (the “PSA”) in 2008. The PSA required Luttrell to pay monthly spousal support to Cucco until 2016, unless support was terminated “as a result of action by the Court taken pursuant to [Code] § 20-109.” In 2014, Luttrell filed a motion to modify his support requirements under Code § 20-109 because, he alleged, Cucco had been cohabiting with and was engaged to another woman.

Code § 20-109 allows a party to modify or terminate their payment obligations 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.” At trial, Luttrell represented himself pro se and argued that both the language of Code § 20-109 and the parties’ intent in ratifying the PSA contemplated that “cohabiting with another person in a relationship analogous to marriage” included same-sex relationships. The trial court, and then the Court of Appeals, disagreed. I invite you to review the Court of Appeals decision, but the gist of its ruling was that neither the General Assembly (when it passed Code § 20-109) nor the parties (when they ratified the PSA) intended the phrase “cohabiting with another person in a relationship analogous to marriage” to include same-sex relationships.

Why you should follow this case

Whether you practice family law or not, there are three aspects to this appeal that make it particularly notable.

First, and most obviously, it presents an interesting legal question. In light of the decisions in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), and Obergefell v. Hodges, 135 Sup. Ct. 2584 (2015), must the phrase “cohabiting with another person in a relationship analogous to a marriage” encompass same-sex cohabitation? In his petition, Luttrell, now represented by the American Civil Liberties Union, argues that principles of statutory interpretation and constitutional avoidance compel reversal. Or, did the intent of the legislature in enacting Code § 20-109, prior to those decisions, or the intent of the parties in ratifying the PSA, also prior to those decisions, limit the phrase to cohabiting with a person of the opposite sex? The trial court and the Court of Appeals took this latter view. We will see whether the Supreme Court agrees.

Second, the respective position of the parties on the central question is atypical. In most cases addressing the rights or status of same-sex relationships, a same-sex couple is on the plaintiff side of the ledger, bringing the case and advocating for the law to be changed. Here, it is the ex-husband arguing that “cohabiting” must include same-sex relationships, and that his support obligations should therefore be terminated; his ex-wife, now in a same-sex relationship, is adverse to that argument and may lose a significant amount of spousal support if it is adopted. Which brings us to point three…

Third, it appears Cucco has not made an appearance at the appellate level in this case. Although she successfully argued the case at the trial level, with counsel, Cucco neither filed a brief nor argued at the Court of Appeals, and she did not file a brief in opposition at the Supreme Court. Whatever the reason for that decision, it is rare for a successful litigant not to defend their victory. Under the general filing deadlines found in Rule 5:26, we will likely know by mid-January 2016, whether Cucco will present argument to the Supreme Court.

As for the decision itself, stay tuned to the Court’s docketing of cases to see when the Court will hear the appeal.[1] Because the case was granted on November 10, and the typical briefing schedule pushes the appellee brief to mid-January, the Court is likely not to hear the appeal before the session beginning on February 29, 2016. An opinion would follow, pursuant to the Court’s new policy of releasing opinions on a rolling basis, typically on Thursdays.

[1] You can follow the Court’s case docket here: http://www.courts.state.va.us/courts/scv/docket.html

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