COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
M. THOMPSON EARLY, JR.
MEMORANDUM OPINION *
v. Record No. 0227-00-4 PER CURIAM
SEPTEMBER 19, 2000
SUSAN B. EARLY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Ronald D. Jacobs; Weinberg & Jacobs, LLP, on
briefs), for appellant.
(Heather A. Cooper; Shoun & Bach, P.C., on
brief), for appellee.
M. Thompson Early, Jr. (husband) appeals the decision of the
circuit court sustaining the demurrer of Susan B. Early (wife) to
his Petition to Terminate Payment of Support and Maintenance. On
appeal, husband contends that the trial court erred in sustaining
wife's demurrer by (1) failing to find that the final decree of
divorce established the support obligation as alimony and,
therefore, was subject to statutory modifications; (2) failing to
apply equitable principles when determining the character of
husband's support obligation to wife; and (3) failing to apply the
amendments to Code § 20-109(A) retroactively. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
On appeal, we view the evidence and all reasonable inferences
in the light most favorable to wife as the party prevailing below.
See McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346
(1990). "The trial court's decision, when based upon credibility
determinations made during an ore tenus hearing, is owed great
weight and will not be disturbed unless plainly wrong or without
evidence to support it." Douglas v. Hammett, 28 Va. App. 517,
525, 507 S.E.2d 98, 102 (1998).
The evidence proved that husband and wife entered into a
Voluntary Separation and Property Settlement Agreement (agreement)
at the time of their final separation in 1988. In his report, the
commissioner in chancery recommended that the agreement be
incorporated into the final decree, except for the provisions set
out in paragraphs II(A) and (B) referring to spousal support and
equitable distribution. Wife contended that those provisions were
unconscionable and obtained under duress. Subsequently, the
parties amended their agreement by executing an addendum. The
agreement, as amended, was incorporated into the final decree of
divorce entered by the trial court on April 1, 1991. The final
decree stated that the agreement was "affirmed, ratified, and
incorporated in this Decree." The agreement itself provided that
"this Agreement shall not be merged in the Decree of any such
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Court, and shall in all respects survive the same and be forever
binding and conclusive upon the parties."
By petition filed November 4, 1999, husband alleged that wife
was habitually cohabiting with another person in a relationship
analogous to marriage for one year or more commencing on or after
July 1, 1997. Husband sought to terminate spousal support under
the amended provisions of Code § 20-109(A). Wife demurred to
husband's petition. The trial court sustained wife's demurrer,
ruling that cohabitation was not a provision warranting
termination of spousal support under the parties' agreement and
that application of the amended provision of Code § 20-109(A)
would be an unconstitutional infringement of contract.
Modification of Support
Husband contends that the payments he makes to wife under the
final decree are spousal support rather than a contractual right
to support and, thus, remain subject to modification under
subsequent legislation. Husband bases this argument in part on
the language of the final decree that he contends changed the
nature of the payments from contract to spousal support. We are
not persuaded that the language inserted in the final decree of
divorce changed the nature of the parties' contractual
obligations. Therefore, we find husband's contention to be
without merit.
Under the terms of the final decree, incorporating the
terms of the parties' amended agreement, wife received $2,000
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per month "as and for her support and maintenance . . . having
commenced on August 1, 1988, and continuing through on the first
day of each month thereafter until the wife's remarriage, or the
death of either party, or until further order of this Court,
whichever first occurs . . . ." (Emphasis added.) Husband
contends, without authority, that this addition was a
substantive one that changed the nature of the payments to wife.
We disagree. The parties executed an agreement in which they
expressly elected to retain their contractual remedies as well
as to incorporate the agreement into the final decree. The
insertion by the trial court in the final decree that the
payments would continue "until further order of this Court" did
not eviscerate the express language of the parties' contract.
Moreover, under Code § 20-109(C),
if a . . . contract signed by the party to
whom such relief might otherwise be awarded
is filed before entry of a final decree, no
decree or order directing the payment of
support and maintenance for the spouse, suit
money, or counsel fee or establishing or
imposing any other condition or
consideration, monetary or nonmonetary,
shall be entered except in accordance with
that . . . contract.
Because the terms of the agreement continued to be enforceable
as a contract, husband's argument that wife lost her contractual
right to payment is without merit.
The issues husband raises on appeal are virtually identical
to those raised in Hering v. Hering, ___ Va. App. ___, ___
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S.E.2d ___ (2000). In Hering, the husband also argued that the
payments he made to the wife were spousal support, not a
contractual obligation. We rejected the husband's argument,
finding that
the parties' contract remained enforceable.
The parties expressly provided that their
agreement was to be "incorporated, but not
merged" into any final decree. . . .
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.
Id. at ___, ___ S.E.2d at ___. For the reasons expressed in
Hering, we find husband's argument to be without merit.
Equitable Remedies
Husband also contends that the trial court erred by failing
to apply equitable principles to relieve him of his obligation
under the parties' agreement as incorporated into the final
decree. Husband concedes that, if this matter is viewed as one
of contract, then the parties' rights and obligations are
governed by the terms of the contract.
The trial court could not enter an order varying the terms
of the parties' contractual obligations. See Code § 20-109(C).
Husband's citation of equitable principles and sociological
commentaries are inapposite to the central issue before us in
this appeal.
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Retroactive Application of Amendment
Finally, husband argues that the amendment to Code
§ 20-109(A) should apply retroactively to bar wife from
continuing to receive spousal support. As we noted in Hering,
[l]egislative amendments affecting
substantive rights are generally presumed to
apply prospectively, unless a contrary
legislative intent is evident.
"[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.
Hering, ___ Va. App. at ___, ___ S.E.2d at ___ (citation
omitted). We find no merit in husband's contention that the
1997 legislation varied his contractual obligations to wife.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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