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Kellogg v. Kellogg

Court of Appeals of Virginia

November 26, 2013

DAVID H. KELLOGG
v.
DENISE ANNE KELLOGG

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge

Jennifer A. Mullett (Augusta L. Meacham; Mullett Dove Meacham & Bradley, PLLC, on briefs), for appellant.

Karen C. Davis (Law Offices of Karen C. Davis, on brief), for appellee.

Judges Frank, Petty and Senior Judge Haley Argued at Alexandria, Virginia

MEMORANDUM OPINION [*]

ROBERT P. FRANK, JUDGE.

BACKGROUND

David Kellogg, appellant/husband, contends the trial court erred in failing to terminate his obligation to pay spousal support to Denise Kellogg, wife, pursuant to the parties' property settlement agreement (PSA), finding that wife and Eric Baker (Baker) did not cohabitate in a relationship analogous to marriage.

The parties entered into a PSA, dated November 10, 2005 wherein husband agreed to pay wife $6, 000 per month spousal support and continuing "thereafter until July 1, 2017, the death of either party, the wife's remarriage, or the wife's cohabitation with a person of the opposite sex in a relationship analogous to marriage for a period of six months or more, whichever shall first occur." This agreement was affirmed, ratified, and incorporated into the final decree of divorce entered on December 21, 2005.

Husband filed a petition to terminate spousal support on October 14, 2011, alleging wife cohabited with Baker in a relationship analogous to marriage. Wife filed an answer, denying cohabitating in such a relationship but admitted wife and Baker have "an ongoing personal and sexual relationship."

"On appeal, we construe the evidence in the light most favorable to wife, the prevailing party below, granting to that evidence all reasonable inferences fairly deducible therefrom." Wright v. Wright, 38 Va.App. 394, 398-99, 564 S.E.2d 702, 704 (2002) (citing Donnell v. Donnell, 20 Va.App. 37, 39, 455 S.E.2d 256, 257 (1995)).

The majority of the facts are uncontroverted. Wife and Baker entered into a serious romantic and sexual relationship in January of 2010. They are in love, and their relationship is monogamous and continuous. They hold themselves out to family and friends as being in an exclusive and committed relationship.

Baker owns a condo on South Glebe Road. Wife owns a residence on North Nelson Street, where she lives with her three children. Each property is titled solely in the parties' respective names.

They travel together at least three times per year, sharing travel expenses. The couple has no joint checking or savings account nor any joint investments. Neither is a beneficiary of the other's insurance policies. Neither receives mail at the other's residence.

While the number of nights the couple spends together is controverted, no evidence suggests that they live together every day. Baker testified that there are some weekends where he and wife are both in town but wife does not come to the condo. Typically, when husband has visitation with the children, wife stays with Baker at his condo from Friday until Tuesday morning. This occurs twice per month. In addition to the ten days per month when husband has visitation, Baker spends one night per week with wife when the children are home, for a total of twelve nights per month. Baker does not have a key to wife's residence. Wife has a key to Baker's condo and a personal parking space there. She has unfettered access to the condo and gains entrée to the condo elevator with an access key. She testified she generally spends two to five nights a week with Baker at his condo, unless travel, work, or other engagements interfere with that schedule.

Wife and Baker regularly keep each other informed as to their activities by phone and e-mail. Wife keeps certain toiletries at Baker's condo but keeps no clothing there. When she stays at the condo, she brings the necessary clothing with her. Baker keeps nothing at wife's house other than a toothbrush.

When together, wife and Baker prepare meals together and clean up afterwards.

During their relationship, wife has bought groceries for Baker from time to time. From March 2010, she has purchased groceries for Baker approximately thirty-two times. When wife stays at the condo, she brings her dog with her. They share the responsibility of feeding and walking the dog.

Wife and Baker have occasionally entertained friends together at the condo. They share some vacations, exchange gifts, share holidays, attend extended family gatherings, attend work-related social activities, and discuss job issues. On several occasions, ...


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