FROM THE COURT OF APPEALS OF VIRGINIA
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette, S.J.
WILLIAM C. MIMS JUSTICE
In this appeal, we consider whether same-sex couples can "cohabit . . . in a relationship analogous to a marriage" for purposes of Code § 20-109(A). The appellant also asks us to vacate an award of attorney's fees assessed by the circuit court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Michael Luttrell ("Luttrell") and Samantha Cucco ("Cucco") were married on January 6, 1992. They later separated, and Cucco filed for divorce on October 5, 2007. Subsequently, they executed a "Property, Custody, and Support Settlement Agreement" (the "PSA"). The PSA was affirmed, ratified, and incorporated into the final decree of divorce granted by the Circuit Court of Fairfax County on November 6, 2008.
Pursuant to the PSA, the divorce decree ordered Luttrell to pay monthly spousal support to Cucco for a term of eight years. However, the PSA provided further that the payments would terminate upon
the death of either party, the remarriage of the wife, or as a result of action by the Court taken pursuant to § 20-109 of 1950 Code of Virginia, as amended, relative to cohabitation.
Also relevant to this appeal, the PSA contained a cost-shifting provision in the event of an enforcement action by one of the parties. That provision states:
The parties agree that any reasonable expenses incurred by a party in the successful enforcement of any of the provisions of [the PSA], or in taking action as a result of the breach of [the PSA] by the other party, whether through litigation or other action necessary to compel compliance herewith, or to cure such breach, shall be borne by the defaulting party. Any such expenses incurred by a party in the successful defense to any such action shall be borne by the party seeking to enforce compliance. "Reasonable Expenses" as referenced herein shall include, but not be limited to, counsel fees, court costs, and expenses of travel.
On July 10, 2014, Luttrell filed a motion for adjustment of spousal support in the Circuit Court of Fairfax County. In his motion, Luttrell alleged that Cucco was "engaged to be married" and had been "cohabiting continuously" with her fiancée for at least a year. Pursuant to the PSA, Luttrell sought a court order terminating his spousal support obligation on the basis of Cucco's alleged cohabitation. Luttrell also requested an order directing Cucco to refund "the equivalent of at least one year of Spousal Support payments."
At the hearing on Luttrell's motion, Cucco did not dispute the allegations. Rather, she contended that her relationship was with another woman, and therefore she was not "cohabiting" within the meaning of Code § 20-109(A).
The circuit court reasoned that the right to marry was distinct from the question of its authority to terminate spousal support pursuant to Code § 20-109(A). Citing the dissent in an unpublished opinion from the Court of Appeals, the circuit court concluded that only opposite-sex couples could cohabit for purposes of Code § 20-109(A). Accordingly, the court denied Luttrell's motion and awarded Cucco attorney's fees pursuant to the cost-shifting provision in the PSA.
Luttrell appealed to the Court of Appeals, which affirmed the judgment of the circuit court in an unpublished opinion. Luttrell v. Cucco, Record No. 1768-14-4, 2015 Va.App. LEXIS 135 (Apr. 21, 2015). As relevant to this appeal, the court began its analysis by looking to the history of Code § 20-109, noting that "[b]efore 1997, Code § 20-109 permitted termination of spousal support only 'upon the death or remarriage of the spouse receiving support.'" In 1997, the General Assembly amended Code § 20-109(A) to authorize termination of spousal support "[u]pon order of the court based upon clear and convincing evidence that the spouse ...