Coalson vs. Coalson, Record No. 2022-14-2 (July 21, 2015) is an ex-husband’s (“William’s”) failed attempt to terminate $4,300.00 of monthly alimony. The Virginia Court of Appeals affirmed the trial court’s granting of a motion to strike William’s evidence, on the ground that he failed to present clear and convincing proof of his ex-wife (“Marylynn”) “habitually cohabiting with another person in a relationship analogous to a marriage for one year or more …”

William’s detective had found Marylynn’s paramour (“Roger”) in Marylynn’s home on nineteen visits over nineteen different consecutive months, and never saw him leave with luggage. Marylynn testified that Roger slept over “four to five” nights a week; participated in cooking, cleaning, grocery shopping, taking out trash, shopping, and vacations; mowed the lawn with his own mower stored in her garage; carried a key to her residence; had ten boxes of personal property in her garage; and kept shoes, clothes, and hygiene items on hand when spending the night. Marylynn did Roger’s laundry, and she testified they shared an exclusive, sexual relationship.

But Marylynn further claimed that Roger lived somewhere else!

The reason William’s proof fell short was Marylynn’s statement that Roger lived somewhere else. Roger’s doing chores, sharing expenses and having a key did not make Marylynn’ home a common residence of the two of them, according to the decision.

Had I deciding this case, I would have over-ruled the trial court. Here’s why:

Imagine three concentric circles. The outer circle is common residence. The middle circle is cohabitation. The innermost circle is habitual cohabitation.  According to the opinion, William did not have enough evidence to get into any of the circles. (He would have had to get into the innermost circle to prevail on appeal.)

The Court of Appeals said William did not have enough evidence to establish “common residence,” because William did not show that Marylynn’s residence was Roger’s “primary” residence. In my view, this held William to a higher evidentiary burden than applicable case law required. The Coalson ruling rejected William’s evidence for failing to meet a “primary residence” standard, while the leading case of Pellegrin only set forth a “common residence” standard. Pellegrin v. Pellegrin, 31 Va. App. 753, 525 S.E.2d 611 (2000).

Even if primary residence had been the standard established in Pellegrin, which it was not, I believe William should have been deemed to have met the standard by clear and convincing evidence. Roger’s physical presence on nineteen out of nineteen monthly detective visits, plus Marylynn’s admission that Roger stayed 4-5 nights a week, was, I believe, strong evidence that Marylynn’s home was Roger’s primary residence and overwhelming evidence that Marylynn’s home was a common residence.

The Court of Appeals may have confused primary residence, common residence, and domicile. In the body of the Coalson opinion, the court utilizes the word “primary.” At the end of the sentence containing the word “primary”, footnote 5 references the Pellegrin standard of “common”. However, the words “primary” and “common” are not synonymous; and they are not interchangeable. If Pellegrin established an evidentiary hurdle consisting of “common residence,” then it was unfair to subject William’s evidence to the higher evidentiary hurdle of “primary residence”.

The Court of Appeals might have modified the standard of proof if it had chosen to do so. But this is an unreported opinion. Unreported opinions are not intended to make new law. I do not think that the Court of Appeals, in rendering this opinion, intended to change the burden of proof.

“Residence” in the law is materially different from “domicile”. People can have multiple residences, be they primary, secondary or otherwise; but you can only have one domicile. Pellegrin does not talk about primary residence or domicile; it speaks of common residence.

The Court of Appeals gave three (3) reasons for finding Marylynn and Roger had no shared residence. The reasons are perplexing.

1. Marylynn testified Roger lived somewhere else.

I addressed this already. As I explained, Roger’s having more than one residence would not necessarily have been inconsistent with his sharing a residence with Marylynn. In my experience, wealthy people, people who travel regularly — like cabin attendants, and people making a conscious effort to protect their paramour’s alimony stream, can have multiple residences.

2. There was no evidence Roger stayed in Marylynn’s home when she was away.

I do not believe this fact, even if proven, would make the existence of a shared residence any more or less likely. If Roger were away from Marylynn’s residence when she was away, then her residence would contain no one. But Roger’s other place had other adults living there. As between Marylynn’s vacant home and Roger’s other place, Roger would have no reason to spend the night in the other abode to protect and safeguard property. But he might be motivated to stay in Marylynn’s residence in her absence just to protect it against burglars, fire, burst water pipes, and the like. He would not necessarily be staying alone at Marylynn’s because it was Roger and Marylynn’s common residence.

3. There was no evidence Roger’s personal items like toiletries were in Marylynn’s residence except when Roger spent the night.

My having two tubes of toothpaste or only one tube is hardly probative of whether a location where I spend the night is my common residence with someone else. Besides, the existence or non-existence of duplicate toiletries is almost impossible to prove.

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There are few opinions in which I respectfully disagree with the Virginia Court of Appeals. But this is one of them.