COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
F. SHRIVER HERING
OPINION BY
v. Record No. 1280-99-4 JUDGE CHARLES H. DUFF
SEPTEMBER 5, 2000
PHYLLIS E. HERING
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Michael A. Ward (Gannon, Cottrell & Ward,
P.C., on briefs), for appellant.
David E. Roop, Jr. (Condo & Masterman, P.C.,
on brief), for appellee.
F. Shriver Hering (husband) filed a petition to terminate
spousal support and maintenance, alleging that Phyllis Hering
(wife) was habitually cohabiting with a man in a relationship
analogous to marriage for a period of more than one year
commencing on or after July 1, 1997. Husband contends that,
because his payments to wife were spousal support, not a
contractual obligation, these payments were amenable to
modification by subsequent legislative enactments and,
therefore, were terminable under the amended provisions of Code
§ 20-109(A). For the reasons set out below, we affirm the trial
court's decision that application of the amendments to Code
§ 20-109(A) concerning termination of spousal support under
circumstances of cohabitation would amount to an
unconstitutional impairment of contract.
Background
The parties entered into a marital settlement agreement
(agreement), dated February 28, 1995. In pertinent part, the
agreement provided:
SPOUSAL SUPPORT
6. a. The Husband shall pay to the Wife,
for her support and maintenance, the sum of
$1,500.00 per month, beginning March 1,
1995, and continuing on the first day of
each month thereafter through February 1996,
the remarriage of the Wife or the death of
either party, whichever is earlier.
b. The Husband shall pay to the Wife,
for her support and maintenance, the sum of
$900.00 per month, beginning March 1, 1996,
and continuing on the first day of each
month thereafter the remarriage of the Wife
or the death of either party, whichever is
earlier.
c. The spousal support payments
provided for in the preceding subparagraph
shall be modifiable by the Circuit Court of
Fairfax County, or other court of competent
jurisdiction, upon the petition of either
party, subject to the requisite showing of a
material change in circumstances.
The agreement also provided for incorporation of the agreement
into a decree of divorce, as follows:
INCORPORATION IN DECREE OF DIVORCE
29. This Agreement shall not be construed
to bar or prevent either party from suing
for absolute or limited divorce. If any
action for divorce is instituted by either
party, any Court in which such action might
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be filed shall affirm, ratify and
incorporate this Agreement in its decree
dissolving the marriage or in any decree of
divorce from bed and board; provided,
however, that this agreement shall survive
such incorporation and shall not be merged
into any such decree.
The parties presented the agreement to the trial court. The
final decree of divorce entered March 3, 1995 provided:
On or about February 28, 1995, the parties
entered into a Property and Support
Settlement Agreement, which settles all
matters pertaining to support and
distribution of property. It is the desire
and intent of the parties that the Property
and Support Settlement Agreement and all the
terms and provisions contained therein be
incorporated, but not merged, into this
Final Decree of Divorce . . . .
ORDERED, that the Property Settlement
Agreement dated February 28, 1995, be, and
the same hereby is, ratified, affirmed and
incorporated, but not merged, into and made
a part of this Final Decree of Divorce, in
accordance with §20-109 and §20-109.1 of the
1950 Code of Virginia, as amended; and the
parties are ordered to comply with the
provisions contained therein . . . .
By petition filed January 20, 1999, husband sought to
terminate his payments to wife pursuant to the newly amended
provisions of Code § 20-109(A). Husband also alleged that
wife's actions constituted a material change of circumstances
warranting termination of wife's spousal support. Wife filed a
demurrer to husband's petition, arguing that application of the
amended provision amounted to an unconstitutional infringement
of the parties' contract. The trial court sustained wife's
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demurrer, ruling that application of Code § 20-109(A) to the
parties' contract would constitute an unconstitutional
impairment of contract. Husband appealed. The court also
granted husband leave to file an amended petition to develop his
allegation of a material change of circumstances. No such
petition was filed, and the only issue before us is the court's
ruling re the applicability of Code § 20-109(A).
Because the trial court sustained wife's demurrer to
husband's petition, we accept as true the facts as alleged by
husband and all reasonable inferences drawn from those facts.
See Norris v. Mitchell, 255 Va. 235, 237, 495 S.E.2d 809, 810
(1998).
Code § 20-109(A)
Effective July 1, 1997, Code § 20-109(A) was substantially
amended to read as follows:
§ 20-109. Changing maintenance and support
for a spouse; effect of stipulations as to
maintenance and support for a spouse;
cessation upon cohabitation, remarriage or
death.
A. Upon petition of either party the court
may increase, decrease, or terminate spousal
support and maintenance that may thereafter
accrue, whether previously or hereafter
awarded, as the circumstances may make
proper. Upon order of the court based 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 commencing on or after July 1,
1997, the court may decrease or terminate
spousal support and maintenance unless (i)
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otherwise provided by stipulation or
contract or (ii) the spouse receiving
support proves by a preponderance of the
evidence that termination of such support
would constitute a manifest injustice.
Subsequent amendments not relevant to this appeal were effective
July 1, 1998.
Incorporation of Agreement
Husband contends that, under Shoosmith v. Scott, 217 Va.
290, 227 S.E.2d 729 (1976) (Shoosmith I), and Shoosmith v.
Scott, 217 Va. 789, 232 S.E.2d 787 (1977) (Shoosmith II), his
payments to wife were spousal support, not payments pursuant to
the parties' contract. By agreeing to incorporate the property
and support agreement into the final decree, wife elected to
receive spousal support instead of payments under the contract
in lieu of spousal support. By so doing, husband's argument
continues, wife received the benefit of enforcement through the
court's power of contempt in exchange for her right to enforce
the contract. Husband concedes that, if the payments to wife
remain a vested contractual obligation, then under Shoosmith I
and Shoosmith II, that obligation may not be impaired by the
subsequent legislative amendments to Code § 20-109(A).
We find that the parties' contract remained enforceable.
The parties expressly provided that their agreement was to be
"incorporated, but not merged" into any final decree. While
ordering the parties to comply with the provisions of the
agreement, the final decree also expressly provided that the
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agreement was not merged. Husband's argument glosses over the
effect of the parties' express provision that the agreement not
be merged into the final decree. We are not at liberty to
ignore a contractual provision specifically included by the
parties.
Our previous decisions and those of the Supreme Court of
Virginia draw a distinction among situations where an agreement
is affirmed, where it is incorporated into a decree, or where,
as here, the agreement is "affirmed, ratified, incorporated, but
not merged" into the final decree. In the context of an
agreement concerning child support, we noted that
[i]f the court accepts the agreement, its
decree may merely approve, ratify or affirm
the agreement, in whole or in part, without
incorporating its provisions into the decree
or ordering payment or compliance with its
terms. See Shoosmith v. Scott, 217 Va. 789,
791-93, 232 S.E.2d 787, 788-89 (1977). In
that situation, the decree merely
constitutes judicial approval of a private
bilateral contract, see Rodriguez [v.
Rodriguez], 1 Va. App. [87,] 90, 334 S.E.2d
[595,] 597 [(1985)] (citing Shoosmith v.
Scott (citation omitted)), and the
provisions of the support agreement do not
have the full force and effect of a court's
decree and are not enforceable by the
court's contempt powers. See Shoosmith, 217
Va. at 792, 232 S.E.2d at 789. The court
also has the option to incorporate by
reference the child support provisions, in
whole or in part, as part of the final
decree, Code § 20-109.1, and retain
jurisdiction to enforce compliance through
its contempt powers.
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Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d 342, 345
(1987). "'Where . . . the circumstances are such that the
incorporation of a property settlement in a decree, with
directions that the parties perform all its obligations, merges
the contract in the decree, the party who desires enforcement
must enforce the decree and not the agreement itself.'"
Doherty v. Doherty, 9 Va. App. 97, 99-100, 383 S.E.2d 759, 760
(1989) (quoting 24 Am. Jur. 2d Divorce and Separation § 858
(1983)). In contrast, "'[w]here the circumstances are such that
the agreement, although incorporated or approved in the decree,
is not merged therein, the parties may enforce it by suing on
the agreement rather than on the judgment.'" Id. at 99-100, 383
S.E.2d at 760 (quoting 24 Am. Jur. 2d Divorce and Separation
§ 858)). Where, as here, the agreement was "incorporated but
not merged" into the final decree, the agreement remained
enforceable under either contract law or through the court's
contempt power. See id. at 99, 383 S.E.2d at 760.
Code § 20-109 prohibits the trial judge from
entering a decree in a divorce suit except
in accordance with a property settlement
agreement signed by the parties. Since the
agreement provides that if it is affirmed,
ratified, and incorporated in the final
decree it shall not be merged in the final
decree, the final order must be read to give
effect to that agreement.
Spagnolo v. Spagnolo, 20 Va. App. 736, 745 n.1, 460 S.E.2d 616,
620 n.1 (1995). Therefore, the parties' agreement, which was
affirmed and incorporated, but not merged, into the final
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decree, remained a separate, enforceable, contractual
obligation.
While husband also argues that the 1997 amendments to Code
§ 20-109(A) should apply to this case, we find that argument
unpersuasive. Legislative amendments affecting substantive
rights are generally presumed to apply prospectively, unless a
contrary legislative intent is evident. See Shiflet v. Eller,
228 Va. 115, 319 S.E.2d 750 (1984). "[R]etroactive effect will
be given to a statute only when legislative intent that a
statute be so applied is stated in clear, explicit, and
unequivocal terms; otherwise, a statute will be applied
prospectively only and applied only to cases that arise
thereafter." Foster v. Smithfield Packing Co., 10 Va. App. 144,
147, 390 S.E.2d 511, 513 (1990). The legislation here, to the
extent it includes an effective date, refers to a period
beginning on or after July 1, 1997, a date well after the
parties executed their agreement and the trial court entered the
final decree of divorce. We find no merit in husband's argument
that additional amendments made in 1998 demonstrate the
legislature's intent regarding the 1997 amendments.
In addition,
[o]ne of the basic rules of construction of
contracts is that the law in force at the
date of making a contract determines the
rights of the parties under the contract.
The law effective when the contract is made
is as much a part of the contract as if
incorporated therein.
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Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974)
(citations omitted) (legislative change reducing age of
emancipation did not apply to parties' contractual agreement to
pay child support until age twenty-one or "otherwise
emancipated"). We find no reason to vary from these well
established principles.
In sum, we agree with the decision of the circuit court
that the application of the amended language of Code § 20-109(A)
to the circumstances of these parties would be an
unconstitutional impairment of contract. At the time the
parties entered into their agreement, they provided only for
termination of spousal support in the event wife remarried or
either party died. They included no provision terminating
spousal support based upon wife's cohabitation. "A court is not
at liberty to rewrite a contract simply because the contract may
appear to reach an unfair result." Kaufman v. Kaufman, 7 Va.
App. 488, 501, 375 S.E.2d 374, 381 (1988). This is not an
instance where the parties failed to expressly address in their
agreement options existing under current legislation. Cf.
MacNelly v. MacNelly, 17 Va. App. 427, 437 S.E.2d 582 (1993)
(agreement that was silent as to the effect of remarriage failed
to abrogate effect of Code § 20-109 terminating spousal support
upon death or remarriage); Radford v. Radford, 16 Va. App. 812,
433 S.E.2d 35 (1993) (agreement that was silent as to the effect
of either death or remarriage failed to abrogate statutory
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language of Code § 20-109 terminating spousal support upon death
or remarriage).
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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