By David L. Duff of Duff & Kronfeld, P.C. posted in Family Law on Wednesday, August 1, 2012.
On July 24, 2012, the Court of Appeals issued its decision in Brennan v. Albertson, a case that many may consider to be groundbreaking in spousal support cases. In Brennan, for the first time, the Court of Appeals held that a non-romantic, non-sexual, same-sex “relationship” can constitute a “relationship analogous to marriage” pursuant to Virginia Code § 20-109 (A), and thus trigger the statutory termination of a support award under that provision. While this decision may seem revolutionary, and it is tempting to predict an immediate flood of support termination actions and commensurate a sea change in the landscape of such actions, a closer look at the facts of this case demonstrates just how limited the Court’s ruling is and how rarely it will ever be applied in practice.
The facts of the case are fairly straightforward. Sheila Brennan and her husband were divorced in 2007, at which time the former husband was ordered to pay her spousal support for a period of approximately twelve years. After four years, the husband moved for a termination of his obligation, alleging that Brennan was involved in a relationship analogous to marriage with another woman.
Brennan and the other woman, Lisa Baker, met in 2006 at an Alcoholics Anonymous meeting; they became friends and Baker became Brennan’s sponsor. Shortly thereafter, the two went on vacation together. In 2007, Baker moved in with Brennan. Baker signed a lease, but there was no evidence as to whether any payments were made under that lease.
The following year, Brennan purchased a home for more than three quarters of a million dollars, in her sole name and at her sole expense. Baker moved into the home with Brennan and Brennan’s children, and Brennan re-titled the property in their joint names. Baker took over responsibility for paying the monthly mortgage, in excess of $3,000. Each occupied her own separate bedroom. Baker paid utility bills and was on a telephone plan with Brennan and Brennan’s children. Brennan and Baker both made substantial contributions to the financial expenses associated with the proper property and did not keep an accounting of the same.
Baker and Brandon ate meals together, along with Brennan’s children. They shared household chores and maintained an active social relationship outside of the house; Baker went to several of Brennan’s family events, and vice versa. They also vacationed and attended church together.
Baker gave birth to a child in 2008; Brennan was present at the child’s birth. Baker and Brennan shared childcare responsibilities for each other’s children; neither paid the other for the childcare provided, and both attended each other’s children’s school functions and made financial contributions to the other’s children.
Baker and Brennan did maintain separate financial accounts, and did not provide each other with access to the same. They kept their vehicles separately titled. They did not name each other’s children as beneficiaries on any of their accounts or assets. There was no evidence that the women shared a romantic or sexual relationship. The relationship was characterized by all of the cited witnesses as being one between very good friends, and that Baker and Brennan were “like sisters.” The court did observe that since they had been living together, neither Baker nor Brennan had been involved in a romantic relationship with anyone else, but the Court did not indicate why this was relevant to its analysis.
Based on all of the above, the trial court found that Brennan and Baker were “intimately intertwined” and found by clear and convincing evidence that they had cohabited in a relationship analogous to marriage in excess of one year, thus terminating the former husband’s support obligation to Brennan.
The Court of Appeals affirmed, and explained, in pertinent part, that 20-109(A) does not require a finding that the relationship is identical to a marriage; rather, because the legislature used the term “analogous,” the relationship need only be “similar in some way” or have “a resemblance in many respects, nearly correspond, be somewhat like, or have a general likeness…but  not be identical in form and substance.” The Court of Appeals correctly observed that the statute’s express language does not make romance or sexual intimacy dispositive of the existence of a relationship analogous to marriage, and thus the absence of those elements cannot preclude a finding of a relationship analogous to marriage.
Rather, applying the standard set forth in Pellegrin v. Pellegrin, 31 Va. App. 753, 525 S.E.2d 611 (2000), the Court examined at other indicia of the couple’s close and interrelated functioning. The court reiterated that no single factor is determinative and that the trial court has the discretion to determine what weight to accord to each of the relevant factors. A threshold question, which was met, was whether the parties involved shared common residence. The Court then put significant weight on the interdependence in childcare matters, that Brennan executed a deed of gift to Baker with no reciprocal promise attached to the transfer, that Baker paid the mortgage and other household expenses without any formal agreement to do so, that Brennan was present at Baker’s daughter’s birth, and, notably, that they functioned essentially as a family unit: sharing meals, vacationing together, attending extended family events, going to church, sharing household chores, attending each other’s children’s activities. Based on all of those factors, the Court of Appeals found that the trial court was within its discretion in finding that the relationship was analogous to marriage for the purposes of 20-109(A).
So, was the Court of Appeals correct in its ruling?
The decision was not unanimous. Chief Judge Felton authored a dissent that cited the legislative history of the statute and numerous appellate decisions referencing cohabitation as existing between a man and a woman. Because that line of argument was not presented to the trial Court, nor briefed at the appellate level, the majority did not need to address it. Moreover, neither the majority nor the dissent held whether the Court was precluded from recognizing a same-sex relationship as being “analogous to a marriage,” given Code §§ 20-45.2 and 45.3 (prohibiting same-sex marriages and contracts purporting to confer the benefits of marriage), and the legislature’s implied finding that same-sex marriage is contrary to Virginia public policy. It is entirely possible that the Court would have ruled differently had those authorities been before it.
Ignoring the arguments not considered by the Court, the majority’s reasoning is compelling. Code § 20-109(A) provides no guidance to the Court in determining what elements must be met for a relationship to be “analogous” to marriage. It is easy to rush to the conclusion that a marital relationship necessitates romantic and sexual intimacy, but there is no support for that proposition in statutes or case law. Loveless marriages are neither void nor voidable under Virginia law, and lack of sexual intimacy is not a basis for an annulment or divorce. Although lack of sexual relations is a factor in determining whether married parties are separated and no longer cohabiting as husband and wife, it is not the sole or determinative factor. Moreover, two individuals with a completely platonic relationship are free to enter into a marriage, and provided they satisfy the same statutory formalities as two romantic partners, their marital status is unassailable. Thus, it would be fair to say that a relationship that is “analogous” to a marriage can be analogous to a platonic marriage in addition to a romantic one.
Although not cited in the decision, the public policy surrounding the very existence of Code 20-109(A) further supports the majority’s position. The clear intent of the legislature was to establish circumstances in which a former spouse’s duty of support would terminate, irrespective of the recipient’s needs and the payor’s resources, for larger reasons of public policy. The legislature reasonably decided that death ends a support obligation, and there is no continuing obligation owed by or owed to a decedent’s estate.
The remarriage of the support recipient is another logical terminating event. If another individual has stepped into the support payor’s place, that new spouse has voluntarily assumed an obligation of support to the payee, superseding and replacing the payor’s obligation. The portion of the statute at issue here closes the glaring loophole in the foregoing circumstance: where a support recipient is for all intents and purposes living in a marital relationship, but elects not to memorialize the same in a legal marriage, he or she should not be permitted to continue to rely on the former spouse for support.
The public policy behind the statute clearly aligns with the facts in Brennan. Baker and Brennan commingled their families and day to day lives, and each undertook to support the other financially. Brennan spent almost half a million dollars buying the house they shared, and Baker assumed responsibility for the mortgage and utilities. That support – and the non-economic support each provided the other – effectively replaces the former husband’s spousal support obligation.
The majority also responded to the Appellant’s argument that upholding the trial court’s decision would result in a flood of litigation in circumstances where a recipient ex-spouse moves in with a close friend or even a family member. First, the Court dismissed the prospect of a litigation explosion, surmising that it will be the exceedingly rare case in which two platonic individuals of the same gender will be as intimately intertwined as Brennan and Baker were. Next, despite the fact that one would reasonably expect to find many of the same facts present in cases where siblings or a parent and child live together, the Court summarily dismissed the argument that familial cohabitation would reach the same result. Specifically, the Court said that “an affectionate relationship between siblings or between parents and children differs intrinsically from a ‘relationship analogous to marriage’ between unrelated persons.”
The Court’s one-sentence refutation of the foregoing argument is curious but ultimately unconvincing. Does a familial relationship “differ intrinsically” from a “relationship analogous to marriage,” particularly where the Court has found that romantic affection and sexual interaction are not necessary elements? And if a familial relationship “differs intrinsically,” why does an utterly platonic relationship between friends not “differ intrinsically”? Without any further delineation of its rationale, the Court’s comment is reminiscent of Justice Potter Stewart’s quote on obscenity: “I know it when I see it.” A curious case would be one in which step-siblings, adopted siblings, or distant cousins carried on a romantic relationship; would the Court there find that it is intrinsically different from a marriage?
The final question is what this ruling means for the status of same-sex relationships and marriage in Virginia. The answer is: absolutely nothing. Finding that a same-sex relationship, whether or not that relationship has romantic or sexual aspects, can be analogous to a marriage is properly contextualized by the observation that the relationship need not be identical to a marriage.
Under code sections 20-45.2 and 45.3, the Commonwealth does not recognize same-sex marriages nor civil unions purporting to bestow marriage-like benefits, and this ruling is not inconsistent with that public policy. As the majority itself observed in a footnote, its decision has absolutely no bearing whatsoever on the nature of the relationship between Brennan and Baker, nor could its ruling have had any determinative effect upon the legal status of that relationship. The decision in no way confers any marriage-like benefits upon Brennan and Baker, and so does not intersect with the aforementioned statutes. Consequently, one should not view this decision as addressing in any way the validity of same-sex relationships in Virginia, and certainly not constitutional issues arising from the aforesaid statutes.