COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Kelsey and Senior Judge Overton
Argued at Salem, Virginia
DEWEY CECIL BALDWIN
OPINION BY
v. Record No. 0084-04-3 JUDGE D. ARTHUR KELSEY
OCTOBER 5, 2004
MARY FLORENCE MATHERLY BALDWIN
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Jonathan S. Kurtin (Shapiro & Kurtin, on brief), for appellant.
(John H. Heard, on brief), for appellee. Appellee submitting
on brief.
Dewey Cecil Baldwin argues on appeal that the trial court erred as a matter of law by
denying his motion to terminate spousal support pursuant to Code § 20-109(A), which bars support
to a former spouse involved in a cohabitation relationship analogous to marriage. He also argues his
property settlement agreement, incorporated into his final divorce decree, authorizes termination on
these grounds. We disagree with both assertions and affirm the trial court’s decision.
I.
In 1989, in anticipation of divorce, the parties executed a property settlement agreement.
The agreement fixed the amount of spousal support and provided that it “shall cease upon the
death of Husband or upon the death of Wife, or upon the remarriage of Wife.” The agreement
also authorized either party to later request that a court “modify, change or amend” the amount
of support upon a showing of changed circumstances. The agreement further provided that, if the
parties did get a divorce, the agreement would be “incorporated by reference and made a part of”
any final decree. The parties later obtained a final divorce decree that “ratified, confirmed, and
approved” the agreement. The decree also stated the agreement was “incorporated herein by
reference and made a part of this decree.” Appellant’s counsel prepared the order and consented to
its entry.
Eight years later, in 1997, the General Assembly amended Code § 20-109. Among other
changes, the legislature divided the then-existing first paragraph of the statute into subsections
(A) and (B). To subsection (A), the legislature added this new language:
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) 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.
1997 Va. Acts, ch. 241. After amendments in 1998, 2000, and 2001, the present version of Code
§ 20-109(A) now reads:
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
shall terminate spousal support and maintenance unless (i)
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 be unconscionable. The
provisions of this subsection shall apply to all orders and decrees
for spousal support, regardless of the date of the suit for initial
setting of support, the date of entry of any such order or decree, or
the date of any petition for modification of support.
In 2002, appellant moved to terminate his spousal support obligations pursuant to Code
§ 20-109(A), asserting that appellee had been living in a cohabitation relationship analogous to
marriage for the preceding two years. Appellee opposed the motion, arguing that no statutory right
to termination existed (because Code § 20-109(A) did not apply retroactively to impair contractual
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rights) and no contractual right of termination existed (because the agreement did not authorize
termination for cohabitation, only remarriage).
The chancellor denied the motion to terminate and granted appellant leave to amend.
Appellant filed an amended motion adding a second ground for termination based upon the
change-of-circumstances provision of the agreement. Shortly thereafter, however, appellant moved
the court to reconsider, arguing that Hardesty v. Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003)
(en banc), undercut the basis of the trial court’s initial ruling. Appellant then withdrew his amended
motion to terminate, stating he was content to “rise or fall” on the statutory bar of Code § 20-109(A)
and the specific language of his agreement.
The chancellor agreed to reconsider his ruling, heard additional argument, and permitted ore
tenus examination of appellee regarding cohabitation. The trial court found the evidence proved
appellee’s cohabitation in a relationship analogous to marriage. The court, however, again denied
the motion to terminate. The court held Code § 20-109(A) could not be applied retroactively. And
the agreement, the court further found, did not authorize termination on cohabitation grounds.
On appeal, appellant acknowledges he has abandoned his change-of-circumstances
argument, conceding that changes in his ability to pay support would likely offset any economies of
scale enjoyed by his former wife in her cohabitation arrangement. Even so, he argues, both Code
§ 20-109(A) and his agreement provide him with a right to terminate support as a matter of law.
We disagree, finding neither ground sufficient to permit ⎯ much less require ⎯ termination as a
matter of law.
II.
A. STATUTORY RIGHT TO TERMINATE SPOUSAL SUPPORT
Appellant contends Code § 20-109(A) bars spousal support to his former wife given the
trial court’s finding that she cohabited in a relationship analogous to marriage. The statutory
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right to termination, he argues, applies here because the final divorce decree ordering support
may be modified at any later date pursuant to then-extant law. The appellant interprets the last
sentence of subsection (A) ⎯ making the cohabitation bar applicable to all orders regardless of
the date of entry ⎯ to require this result.
Appellant’s reasoning, while persuasive as far as it goes, does not go far enough to
answer the question presented. In this case, the final decree expressly “incorporated herein by
reference and made part of this decree” a bilateral agreement vesting the appellee with a
contractual right to permanent spousal support. The decree did not involve an exercise of
judicial power to resolve a litigable contest over appellee’s entitlement to statutory spousal
support. No judicial balancing of the statutory decisionmaking variables outlined in Code
§ 20-107.1(E) can be imputed to this decree. It merely ordered appellant, at his urging, to do
what he had already agreed to do.
Nor can the decree be characterized as a mere scheduling order preserving the status quo,
or an agreed-upon pendente lite order addressing temporary support, or a consent order agreeing
to nothing more than the parties’ joint desire to put a contested matter off until a later hearing.
Instead, the final decree embodied and enforced something quite different: a negotiated
agreement between the parties vesting appellee with a contractual right to permanent spousal
support. The decree’s contractual character places it within the general rule recognizing that
vested contractual rights ⎯ whether incorporated by, memorialized in, or merged into a final
decree ⎯ “cannot be judicially modified or terminated at the unilateral request of a contract
party unless the agreement expressly authorizes such relief.” Newman v. Newman, 42 Va. App.
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557, 568-69, 593 S.E.2d 533, 539 (2004) (en banc); Smith v. Smith, 41 Va. App. 742, 747, 589
S.E.2d 439, 441 (2003).1
Under these circumstances, to apply Code § 20-109(A) retroactively would amount to an
unconstitutional impairment of appellee’s vested contractual right to support ⎯ something the
legislature surely did not intend and something we could not approve even if it did. See Rubio v.
Rubio, 36 Va. App. 248, 255, 549 S.E.2d 610, 613-14 (2001) (en banc) (holding that giving
“retroactive effect” to Code § 20-109(A) would “accomplish a forbidden impairment of Ms.
Rubio’s contractual entitlement to support”); Hering v. Hering, 33 Va. App. 368, 375, 533
S.E.2d 631, 634 (2000) (holding that application of the “amended language of Code § 20-109(A)
to the circumstances of these parties would be an unconstitutional impairment of contract”);
accord Smith, 41 Va. App. at 752, 589 S.E.2d at 443 (concluding that there is “no reason for
applying a different result from that reached in Rubio and Hering where the contracts did not
merge”). See generally Peter N. Swisher, Lawrence D. Diehl & James R. Cottrell, Virginia
Family Law: Theory, Practice & Forms § 9.11, at 259-60 (2004).
As to the last sentence of Code § 20-109(A), making the cohabitation bar applicable to
support orders regardless of the date of entry, we view that 2001 amendment to the statute as a
clarification of the trial court’s authority over non-contractual support awards ⎯ not as a
legislative attempt to impair preexisting contractual rights to support. The 2001 amendment
appeared to target the panel decision in Rubio, which limited the statute to a purely prospective
1
Under Newman, a decree does not attain contractual character purely by virtue of its
consensual entry. One can consent to the entry of an order without entering into a binding
bilateral agreement. As with all contractual instruments, the party asserting the existence of an
agreement bears the burden of persuasion to prove its existence. That posed no problem in
Newman because the final consent decree stated that “all matters in dispute” were “settled and
agreed” and then recited verbatim the terms of the parties’ agreement on permanent spousal
support. Id. at 561, 593 S.E.2d at 535. The parties, moreover, reaffirmed in open court (at trial
and on appeal) the contractual character of the decree.
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application. See Rubio v. Rubio, 33 Va. App. 74, 531 S.E.2d 612 (2000). Under that precedent,
only non-contractual support decrees entered after the statute’s enactment could be terminated on
cohabitation grounds. The cohabitation bar thus had no effect on non-contractual support
decrees entered before the statute’s enactment. We specifically rejected this reasoning in our en
banc decision in Rubio, finding that the 2001 amendment made clear the “legislature did not
intend that result.” Rubio, 36 Va. App. at 252, 549 S.E.2d at 612. We likewise made clear,
however, that the statute could not be applied retroactively if doing so would impair vested
contractual rights. Id. at 255, 549 S.E.2d at 614.
For these reasons, the trial court correctly denied appellant’s motion to terminate spousal
support to the extent the motion asserted the statutory cohabitation bar of Code § 20-109(A).
Enacted after the parties’ agreement, Code § 20-109(A) cannot of its own force terminate a
preexisting contractual right to spousal support. If appellant has any right to terminate support on
cohabitation grounds, that right must be rooted in the express terms of the agreement.
B. CONTRACTUAL RIGHT TO TERMINATE SPOUSAL SUPPORT
The parties’ agreement nowhere authorizes termination on cohabitation grounds. Instead, it
permits termination only upon death or remarriage. Acknowledging this omission, appellant argues
that the contract did not need to mention cohabitation directly because our decision in Hardesty v.
Hardesty, 40 Va. App. 663, 581 S.E.2d 213 (2003) (en banc), implies the cohabitation provision as
a matter of law. Only an express declaration precluding termination on cohabitation grounds,
appellant reasons, can survive scrutiny under Hardesty.
We read Hardesty differently. Both the reasoning and the result in Hardesty assume the
particular statutory bar in dispute applies of its own force. Starting from that presupposition,
Hardesty then addresses the level of specificity in contractual language required to preclude the
operation of the statutory bar. Put another way, when one of the statutory bars in Code § 20-109
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applies, Hardesty requires that the agreement “expressly preclude termination of the contractual
duty of spousal support” on that ground. Newman, 42 Va. App. at 570, 593 S.E.2d at 540
(emphasis in original). “If it fails to do so, the contractual obligation may be terminated.” Id. In
this way, Hardesty can best be understood as recognizing a statutory preset that can be undone
only by the clearest possible expression of contractual intent.
On the other hand, when Code § 20-109’s statutory bars do not apply, ordinary principles
of contract law do ⎯ and they, not Hardesty, determine the scope of the payee’s right to receive
spousal support and the payor’s right to terminate it. Under those principles, the general rule
prevails: “Absent equitable grounds warranting rescission, a contract cannot be judicially
modified or terminated at the unilateral request of a contract party unless the agreement
expressly authorizes such relief.” Newman, 42 Va. App. at 568-70, 593 S.E.2d at 539-40. Thus,
whether a statutory bar to spousal support must be expressly included in the agreement as a
ground for termination or expressly excluded depends entirely on whether the agreement predates
or postdates the legislative enactment creating the bar. Id. at 570, 593 S.E.2d at 540 (recognizing
that, when applicable, subsections (A) & (D) of Code § 20-109 reverse the normal contractual
sequence for cases involving “cohabitation, remarriage, or death”).2
In this case, the property settlement agreement predated the first version of the statutory
cohabitation bar by some eight years. The termination provision of the agreement authorizes
termination of support upon remarriage or death, but says nothing about cohabitation. We
cannot “rewrite” the agreement to include a right of termination for cohabitation. Hering, 33
Va. App. at 375, 533 S.E.2d at 635. To do so would be contrary to the maxim that no court can
2
In Hardesty, the parties entered into their property settlement agreement in 2000, long after
the enactment of Code § 20-109(D)’s statutory bar to spousal support after remarriage of the payee
spouse ⎯ the only statutory bar relevant to that case.
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“insert by construction, for the benefit of a party, a term not express in the contract.” Am. Spirit
Ins. Co. v. Owens, 261 Va. 270, 275, 541 S.E.2d 553, 555 (2001) (citation omitted); Jones v.
Harrison, 250 Va. 64, 68, 458 S.E.2d 766, 769 (1995) (emphasizing that “we have stated on a
number of occasions that we do not rewrite contracts to insert provisions that have been omitted
by the parties”). The trial court, therefore, properly denied the motion to terminate support to the
extent it asserted a contractual entitlement to termination.
III.
Because the parties’ agreement predated the cohabitation bar of Code § 20-109(A),
appellant has no statutory right to terminate spousal support on cohabitation grounds. And, because
the agreement does not authorize termination on cohabitation grounds, appellant has no contractual
right to terminate. Finding the trial court’s reasoning sound and its result correct, we affirm.
Affirmed.
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