Hardesty v. Hardesty

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder,
Annunziata, Bumgardner, Frank, Humphreys, Clements,
Agee, * Felton and Kelsey
Argued at Richmond, Virginia

FRANCESCA HARDESTY
OPINION BY
v. Record No. 0366-02-2 JUDGE ROBERT J. HUMPHREYS
MAY 27, 2003
SAMUEL HARDESTY

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge

John N. Clifford (Clifford & Duke, P.C., on
brief), for appellant.

Frank N. Cowan (Ishneila I.G. Moore; Cowan &
Owen, P.C., on brief), for appellee.

This matter comes before the Court on a rehearing en banc

from a panel decision rendered October 22, 2002. See Hardesty v.

Hardesty, 39 Va. App. 102, 570 S.E.2d 878 (2002). The panel

affirmed a judgment of the trial court declaring that, pursuant to

the parties' final decree of divorce, Samuel Hardesty's obligation

to pay spousal support to his former wife, Francesca Hardesty,

must terminate upon her remarriage. By order dated November 26,

2002, we granted wife's petition for a rehearing en banc, stayed

*
Justice Agee participated in the argument and decision of
this case prior to his investiture as a justice of the Supreme
Court of Virginia.
the mandate of that decision, and reinstated the appeal. Upon

rehearing en banc, we affirm the judgment of the trial court.

I. Background

Husband and wife were married in 1990 and separated in 1999.

No children were born of the marriage. In 1999, wife filed a bill

of complaint seeking a divorce on the grounds of adultery, cruelty

and separation. Husband filed a cross-bill seeking a divorce on

the grounds of separation.

The parties participated in mediation on January 13, 2000,

and entered into a written property settlement agreement (PSA) as

a result. The PSA provided for the division of the parties'

assets. The PSA also provided the following as to spousal

support, in relevant part:

15. Spousal Support. Husband and Wife
agree that Husband has an obligation to pay
Wife spousal support as follows:

a. Beginning February 1, 2000 and
continuing through to and including the
final payment on January 1, 2007, Husband
shall pay $5,000.00 per month.

* * * * * * *

d. This support cannot be terminated for
any reason.

In addition, the PSA provided as follows, in pertinent part,

concerning the parties' tax obligations:

13. Tax Consequences.

* * * * * * *

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 c. Husband shall fund an escrow account
with $300,000.00 [$150,000.00 of this shall
be considered Wife's funds] on or before May
15, 2000 . . . to be held in an interest
bearing account. These funds shall be held
for payment of the taxes, penalties,
interest, and fines, for Hardesty
Construction, Inc. and American Gutter
through 1998. If any monies are left over
after all taxes, penalties, interest, and
fines are paid in full, the balance shall be
equally distributed to each party. . . . If
taxes, penalties, interest, and fines are
owed after the depletion of all monies for
payment of the taxes, penalties, interest
and fines, personal, Hardesty Construction,
Inc. and American Gutter through 1998, then
each party shall be equally liable for the
balance. Upon depletion of the escrow
balance, Husband shall immediately pay the
entire balance for any taxes, penalties,
interest, and fines owed within six [6]
months, time being of the essence.
Thereafter, he may deduct [right of set off]
Wife's half from the spousal support by
shortening support by the number of months
necessary to repay the amount to Husband.
For example, if $10,000.00 is owed after the
escrow is depleted, Husband shall pay said
amount in full and shorten support by one
month [$5,000.00] at the end of the support
period. . . .

Finally, the PSA provided that it would be "affirm[ed],

ratif[ied] and incorporate[d]," but not "merge[d]," into the

final divorce decree.

Prior to the court's entry of the final decree, wife filed a

separate action with the trial court in July of 2001, seeking a

declaratory judgment holding the PSA precluded the termination of

spousal support upon her remarriage. Husband demurred to the

declaratory judgment action contending that the language contained

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in the PSA was insufficient as a matter of law to bar termination

of spousal support upon remarriage. By order entered July 20,

2001, the action was consolidated with the parties' pending

divorce action.

After reviewing supporting memoranda filed by the parties and

a hearing ore tenus, the trial court advised counsel as follows:

After considering the authorities, I have
decided to sustain the demurrer or motion to
suppress of the defendant. The Court finds
that, under applicable case law, it is
required, in order of [sic] the spousal
support to survive remarriage, that the
property settlement explicitly state that it
will survive remarriage.

And I will note [wife's] exception but will
hold that spousal support will terminate
upon the remarriage of [wife].

The trial court incorporated its finding in this regard into the

final decree of divorce, entered February 4, 2002, stating:

[T]he Court treats the demurrer as a
dispositive motion and enters the following
declaratory judgment:

[I]f the plaintiff remarries the defendant
is relieved from any further obligation to
pay spousal support to the Plaintiff. The
[PSA] does not contain "express language
either citing the statute [Va. Code
§ 20-109] or expressly stating that
remarriage does not terminate the
obligation" as required by Virginia law.
MacNelly v. MacNelly, 17 Va. App. 427, 430,
437 S.E.2d 582, 584 (1993) and Langley v.
Johnson, 27 Va. App. 365, 499 S.E.2d 15
(1998). Accordingly, declaratory judgment
in favor of the defendant is entered as set
forth herein.

Wife appeals only this portion of the trial court's ruling.
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 II. Analysis

Code § 20-109(D) provides that "[u]nless otherwise provided

by stipulation or contract, spousal support and maintenance shall

terminate upon the death of either party or remarriage of the

spouse receiving support." Code § 20-109. We have held that the

"'language [of Code § 20-109] contemplates an expressed, not

implied, provision that support shall not terminate upon death or

remarriage. By resolving ambiguity, Code § 20-109 reduces

litigation. To permit its mandate to be overcome by implication

would introduce ambiguity, encourage litigation and, thereby,

undermine the statute's purpose. . . .'" MacNelly, 17 Va. App. at

429-30, 437 S.E.2d at 584 (quoting Radford v. Radford, 16 Va. App.

812, 813, 433 S.E.2d 35, 36 (1993)).

We have further held that "in order to accomplish the stated

objective of the statute to resolve ambiguity and thereby reduce

litigation, any attempt to abrogate the effect of the statute

requires express language either citing the statute or expressly

stating that remarriage does not terminate the obligation." Id.

at 430, 437 S.E.2d at 584. "'The public policy clearly declared

by Code §§ 20-109 and 20-109.1 is that spousal support does not

survive the recipient's remarriage. To create an exception to

that policy, the agreement must be equally clear.'" Langley, 27

Va. App. at 371-72, 499 S.E.2d at 18 (quoting Miller v. Hawkins,

14 Va. App. 192, 195-97, 415 S.E.2d 861, 863-64 (1992)).

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 In Gayler v. Gayler, 20 Va. App. 83, 85, 455 S.E.2d 278, 279

(1995), the agreement provided that "the payments [of spousal

support] . . . shall terminate upon the Wife's remarriage or

death." However, the agreement was later modified by an addendum

stating that "the payments . . . shall terminate only upon the

Wife's death." 20 Va. App. at 85, 455 S.E.2d at 279. There, we

held "that the addendum's excision of the reference to remarriage

and the addition of the word 'only' evince[d] the parties' intent

that spousal support would survive wife's remarriage." Id. at 86,

455 S.E.2d at 280. Nevertheless, in a footnote to that holding,

we made an important distinction, stating:

The use of the term "only" by the parties is
alone not determinative of the issue.
Absent the reference to the effect of
remarriage in the original agreement, the
language of the addendum standing alone
would not be sufficient to evince an intent
of the parties to avoid the operation of
Code §§ 20-109 and 20-109.1.

Id. at 86 n.2, 285 S.E.2d at 280 n.2; see also Langley, 27

Va. App. at 373-74, 499 S.E.2d at 19. 1

1
Judge Annunziata's dissent argues that this footnoted
language in Gayler is mere dicta. However, it is clear that the
footnoted language was not dicta, but was central to the ratio
decidendi of the opinion. See Black's Law Dictionary 1262 (6th
ed. 1990) (defining ratio decidendi as "the ground or reason of
decision"). Indeed, in reaching its determination, the court in
Gayler specifically held "that the addendum's excision of the
reference to remarriage and the addition of the word 'only,'"
sufficiently evinced the "parties' intent that spousal support
would survive wife's remarriage." Gayler, 20 Va. App. at 86,
455 S.E.2d at 280. The footnote reinforces the importance of
both elements – the addendum's excision of the reference to
remarriage and the word "only" – to its holding. Therefore, the
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 In the agreement that we review in this appeal, the terms

provide that spousal support "cannot be terminated for any

reason." However, no language in any part of the PSA explicitly

evinces the parties' intent to avoid operation of the statute as

to remarriage. Indeed, the language of the parties' agreement is

very similar to "the language of the [Gayler] addendum [which]

standing alone[,] would not be sufficient to evince an intent of

the parties to avoid the operation of Code §§ 20-109 and

20-109.1." Gayler, 20 Va. App. at 86 n.2, 285 S.E.2d at 280 n.2.

Moreover, we find it significant that since our decisions in

Radford and Gayler, and before the proceedings in the instant

case, the legislature has met several times, amending Code

§ 20-109 on two of those occasions; yet, it has given no

indication of a desire to change our long-standing interpretation

of the statute, requiring precise and express language to overcome

the operation of Code § 20-109(D). See 1998 Acts, ch. 604; 2001

Acts, chs. 725 and 740. "'[W]here the General Assembly acts in an

area in which this Court has already spoken, it is presumed to

know the law as the Court has stated it and to acquiesce

language was clearly crucial to the court's resolution of the
dispute in that case, and thus provides us with distinct
precedent to guide our decision in this case. See Langley, 27
Va. App. at 373-74, 499 S.E.2d at 19 (noting that "Gayler turned
on the fact that the addendum's alteration of the original
support provisions was a 'critical change in the original
agreement,' which necessarily evinced in a clear and express
fashion the parties' intent that the support would continue
after remarriage").

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therein.'" McFadden v. Commonwealth, 3 Va. App. 226, 230, 348

S.E.2d 847, 849 (1986) (quoting Burns v. Board of Supervisors, 227

Va. 354, 360, 315 S.E.2d 856, 860 (1984)); see also Christensen v.

Christensen, 26 Va. App. 651, 656, 496 S.E.2d 132, 134 (1998).

Thus, although on its face the language of the PSA seems to

clearly reflect the intent of the parties, we reiterate our stated

rationale in Radford, that the statutory "language contemplates an

expressed, not implied, provision that support shall not terminate

upon death or remarriage" and that "[t]o permit its mandate to be

overcome by implication would introduce ambiguity, encourage

litigation and, thereby, undermine the statute's purpose." 16

Va. App. at 813, 433 S.E.2d at 36. 2 Accordingly, the judgment of

the trial court is affirmed.

2
Judge Kelsey's dissent is founded upon the proposition
that our "extrapolation[s]" in Gayler and MacNelly take "too
far" "our construction of the statute." And, although
precedential, the decisions are based upon "unsettled"
"piling[s] [of] dicta upon dicta." As set forth above, we
differ with this conclusion. While he is quite correct that we
clearly have the authority to overrule long-standing precedent,
whether it originates from a panel of this Court or the full
Court sitting en banc, his dissent omits any recognition that we
do so rarely, and certainly not lightly. The precedential value
of our opinions to this Court, the lower courts and members of
the bar, is well settled. The courts of this Commonwealth have
long acknowledged that "[i]n Virginia, the doctrine of stare
decisis is more than a mere cliché," and is not to be taken
lightly. Nelson Selected Risks Ins. Co. v. Dean, 233 Va. 260,
265, 355 S.E.2d 579, 581 (1987). The "doctrine plays a
significant role in the orderly administration of justice by
assuring consistent, predictable, and balanced application of
legal principles." Id.

Moreover, [this] "respect for precedent
helps promote public confidence in the law."
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 Affirmed.

[Note, Constitutional Stare Decisis, 103
Harv. L. Rev. 1344, 1349 (1990).] If an
appellate court does not respect its own
precedent, then the public, the bench, and
the bar are less likely to have confidence
in the decisions that are made.
Furthermore, employing the doctrine of stare
decisis assures the public that an appellate
court's judgments are not arbitrary and that
the court is controlled by precedent that is
binding without regard to the personal views
of its members.

Newman v. Erie Insurance Exchange, 256 Va. 501, 510, 507 S.E.2d
348, 353 (1998) (Compton, J., joined by Carrico, CJ.,
dissenting). In keeping with the principles articulated
immediately above, we recognize that our existing precedent on
this issue has provided a longstanding "bright line rule" for
the bar and the public, which ought not lightly be cast aside.
- 9 -
Annunziata, J., with whom Clements, and Felton, JJ., join,
dissenting.

I respectfully dissent from the majority's decision. I

would find the parties' PSA expressly states that spousal

support does not terminate upon wife's remarriage and that the

statutory requirements of Code § 20-109(D) have been met.

Code § 20-109(D) provides that spousal support terminates

upon the death of either party or the remarriage of the spouse

receiving support "unless otherwise provided by stipulation or

contract." Contrary to the majority's reasoning, I do not

believe this Court's prior decisions require that the parties'

stipulation or contract contain particular language to avoid the

application of the statute's termination provision.

The majority relies on the holdings in Radford v. Radford,

16 Va. App. 812, 433 S.E.2d 35 (1993), MacNelly v. MacNelly, 17

Va. App. 427, 437 S.E.2d 582 (1993), Gayler v. Gayler, 20

Va. App. 83, 455 S.E.2d 278 (1995), and Langley v. Johnson, 27

Va. App. 365, 499 S.E.2d 15 (1998), to affirm the trial court's

ruling that husband's support obligation to wife terminated upon

her remarriage. In these decisions, we construed Code

§ 20-109(D) and found that, to avoid application of the

statute's termination provision, the parties must include

"express" language in the agreement, evincing their intent that

the support obligation survive the payee spouse's remarriage.

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 In Radford, the parties agreed in writing that "the husband

shall pay unto the wife the sum of $200.00 per month for a

period of 5 years." Wife remarried before the expiration of the

5-year period referenced in the agreement, and the trial court

terminated husband's obligation to pay support, relying on Code

§ 20-109. On appeal, we stated:

Because . . . the agreement contained no
express provision for continuation upon the
death or remarriage of the spouse receiving
support, the spousal support terminated upon
the wife's remarriage.

Radford, 16 Va. App. at 813-14, 433 S.E.2d at 36.

Shortly thereafter, we applied the Radford holding in

MacNelly, where the parties agreed husband would pay wife $7,000

per month in support, but "[i]n the event that the husband or

wife dies before February 1, 1996, then the obligation for

support . . . shall cease." The agreement did not address the

effect of wife's remarriage on husband's obligation. When wife

remarried, husband ceased paying support. Wife argued that the

inclusion of a provision concerning termination of the

obligation upon the death of either party, coupled with the

absence of any reference to the effect of remarriage on spousal

support, evinced the parties' intent to avoid application of the

Code. We disagreed and held, "in order to accomplish the stated

objective of the statute to resolve ambiguity . . . any attempt

to abrogate the effect of the statute requires express language

either citing the statute or expressly stating that remarriage
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does not terminate the obligation." MacNelly, 17 Va. App. at

430, 437 S.E.2d at 584.

In Gayler, the parties' original agreement provided that

support would terminate upon the death of either party or the

remarriage of the wife. The parties later executed an addendum

stating that support would terminate "only upon the wife's

death." Gayler, 20 Va. App. at 85, 455 S.E.2d at 279. We held

that "the addendum's excision of the reference to remarriage and

the addition of the word 'only,' to the phrase, 'upon [her]

death,' evinces the parties' intent that spousal support would

survive remarriage." Id. at 86, 455 S.E.2d at 280.

In Langley, the parties executed a settlement agreement

that provided for the husband to pay wife weekly spousal support

"until her death." When wife remarried, husband sought to have

his support obligation terminated pursuant to Code § 20-109(D).

We held that the phrase "until her death" does not constitute

"express language" stating that the parties intended that

husband's support obligation would survive remarriage. Langley,

27 Va. App. at 370, 499 S.E.2d at 17.

I acknowledge that the holdings in Radford, MacNelly,

Gayler and Langley support the principle that, where an

agreement does not expressly address the duration of spousal

support in the event of remarriage, we will not read such

language into the agreement by implication. Indeed, the

language employed by the parties in each of these cases was
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ambiguous and susceptible to more than one interpretation and

amply supports the result. 3 I also acknowledge that the rule

requiring express language is well settled and salutary,

existing "if for no other reason than . . . it encourages the

considered judgment inherent in clarity and certainty." Bird v.

Henke, 395 P.2d 751, 753 (Wash. 1964). However, none of this

Court's decisions holds that the rule can only be served if the

parties use particular contract language.

A review of the authorities on which this Court relied in

Miller v. Hawkins, 14 Va. App. 192, 415 S.E.2d 861 (1992), the

progenitor of the MacNelly line of cases, is instructive. In

Miller, we first construed Code § 20-109(D) and held that a

property settlement provision must contain clear and express

language evincing the parties' intent that spousal support will

continue after remarriage, to rebut the statutory presumption

that it ends with that event. Miller, 14 Va. App. at 196-97,

415 S.E.2d at 864. In resolving the issue, we adopted the views

expressed by appellate courts in sister states. See, e.g.,

Edwards v. Benefield, 392 S.E.2d 1, 3 (Ga. 1990) (finding that a

provision requiring that husband pay alimony to wife

"permanently" was ambiguous in the context of other language in

the agreement); In re Marriage of Williams, 796 P.2d 421, 425

3
For example, the phrases "for a period of 5 years," "in
the event wife dies," and "until her death" are each open to
more than one reading, thus, we are unable to determine the
parties' intentions regarding termination of support.
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(Wash. 1990) (finding that a provision providing that spousal

support is to be paid until wife completes bachelor's degree or

until 4 years pass, whichever comes first, does not overcome the

statutory presumption); Peterson v. Lobeck, 421 N.W.2d 367, 368

(Minn. Ct. App. 1988) (holding that language in the agreement

obligating husband to pay spousal support for 48 months or until

wife completed her bachelor's degree was insufficient because it

did not clearly state that support was to continue after

remarriage); Green v. Kunkel, 729 S.W.2d 34, 35-36 (Mo. Ct. App.

1987) (finding that language requiring husband to pay support

for a specific period is not sufficient to express intent that

support continue upon remarriage in the specified period); In re

Marriage of Glasser, 226 Cal. Rptr. 229, 231 (Cal. Ct. App.

1986) (holding that agreement providing that spousal support

shall be "non-modifiable" for any reason whatsoever will not be

construed to mean "nonterminable" for any reason whatsoever; the

terms are not synonymous and are insufficient to overcome

statutory presumption that support terminates upon remarriage).

In only one of the foregoing cases, Williams, did the

appellate court specifically hold that the word, "remarriage,"

must be used to overcome the statute and that, absent the

inclusion of the word "remarriage," an agreement clearly and

unmistakably addressing the effect of remarriage on spousal

support, can never pass muster. Williams, 796 P.2d at 425.

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 Given the absence of such a requirement in all but one of

the cases whose holdings we adopted in Miller, the absence of

such a requirement in the Miller opinion is significant. Miller

formulated the principle as one requiring clear and express

language and did not specify particular language that it deemed

sufficient. Even more instructive is this Court's continuing

silence on the issue. None of the decisions that follow Miller

holds that a specific reference to "remarriage" is the sole

drafting technique that will be deemed sufficient to clearly

express the parties' intent with respect to the effect of

remarriage on spousal support. All that is required under these

precedents is that the parties' agreement be "express" and free

from "ambiguity." MacNelly, 17 Va. App. at 430, 437 S.E.2d at

584.

Black's Law Dictionary defines "express" as "clear,"

"definite," "plain," "explicit," "direct," "unmistakable."

Black's Law Dictionary 580 (6th ed. 1990). "Express" is defined

in Webster's Dictionary as "definite," "directly and distinctly

stated . . . not dubious or ambiguous." Webster's 3d New

International Dictionary 2321 (3d ed. 1993). None of the

definitional synonyms leads ineluctably to the conclusion that

only certain terms or words can be deemed "express" expressions

of intent. See also Sussex Comty. Servs. Ass'n v. Va. Soc'y for

Mentally Retarded Children, 251 Va. 240, 243, 467 S.E.2d 468,

469 (1996); Rubin v. Gochrach, 186 Va. 786, 797, 44 S.E.2d 1,
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5-6 (1947); Cox v. Cox, 16 Va. App. 146, 148, 428 S.E.2d 515,

516 (1993). Indeed, such a restricted reading of the statutory

requirements of Code § 20-109(D) would be wholly inconsistent

with the historic role and authority of the court to interpret

contracts and to apply settled principles to determine intent.

"Property settlement agreements are contracts; therefore,

we . . . apply the same rules of interpretation applicable to

contracts generally." Tiffany v. Tiffany, 1 Va. App. 11, 15,

332 S.E.2d 796, 799 (1985). Where parties contract lawfully and

their contract is free from ambiguity or doubt, their agreement

furnishes the law which governs them and "equity will refuse to

give it another by interpretation." Elam v. Ford, 145 Va. 536,

544, 134 S.E. 670, 672 (1926). Where an agreement is plain and

unambiguous in its terms, the court is duty bound to give it

full force and effect. See generally Bridgestone/Firestone,

Inc. v. Prince William Sq. Assocs., 250 Va. 402, 407, 463

S.E.2d 661, 664 (1995) (citing Foods First, Inc. v. Gables

Assocs., 244 Va. 180, 182, 418 S.E.2d 888, 889 (1992)); Burns v.

Eby & Walker, Inc., 226 Va. 218, 221, 308 S.E.2d 114, 116

(1983).

Furthermore, the General Assembly has not evinced an intent

to require divorcing parties to use particular language to meet

the definition of "express" and to avoid the application of Code

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§ 20-109(D). 4 And, to the extent that our prior decisions are

read as requiring the parties to use the specific term

"remarriage" in order to avoid the termination provision of Code

§ 20-109(D), I would reverse based on the ground that the

decisions do not properly reflect the legislature's intent. See

Code § 17.1-402(D) ("The Court sitting en banc shall consider

and decide the case and may overrule any previous decision by

any panel or of the full Court.").

The legislature has furthermore evinced no intent to

foreclose the judicial application of contract principles to

determine the intent of the parties with respect to the duration

of spousal support in the event of remarriage. 5 The statute

4
When the legislature requires specific language be used,
it generally states that requirement in the Code. See, e.g.,
Code § 8.2-316(2) (requiring disclaimers of an implied warranty
of merchantability to "mention" the word "merchantability");
Code § 8.01-433.1 (requiring contracts authorizing confession of
judgment to include specific statutory verbiage).
5
The legislature has amended Code § 20-109(D) twice since
our decision in Miller. As the majority points out, it has not
changed this Court's long-standing interpretation of the
statute, requiring precise and express language to overcome the
operation of § 20-109(D). However, although the legislature is
presumed to thus "'acquiesce'" in the interpretation, McFadden
v. Commonwealth, 3 Va. App. 226, 230, 348 S.E.2d 847, 849 (1986)
(quoting Burns v. Bd. of Supervisors, 227 Va. 354, 360, 315
S.E.2d 856, 860 (1984)), it cannot be presumed that they
acquiesced in the dicta of the Gayler footnote or in subsequent
holdings that rely on the dicta, including Langley. See
Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 299 (1995).
Nor can it be presumed to acquiesce in a requirement that the
parties must use the word, "remarriage," in a provision
regarding its effect on spousal support to overcome the
statutory presumption when none of our holdings stand squarely
for that proposition.
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requires nothing more than a "stipulation" or a "contract." In

short, neither the statute nor our prior holdings forecloses

construing a contract provision as "express," pursuant to well

established rules, simply because certain words are not used in

the formulation.

I believe the majority opinion contravenes the duty placed

upon the court to interpret contracts so that the intentions of

the parties are given full effect. See Wilson v. Holyfield,

227 Va. 184, 187, 313 S.E.2d 396, 398 (1984) (finding that the

polestar for the construction of a contract is the intent of the

contracting parties as expressed by them in the words they have

used). The majority reaches its decision on the ground that our

prior decisions do not permit any other interpretation when the

property settlement agreement fails to "expressly" use the word,

"remarriage," in the provisions addressing the duration of

support under such circumstances. In adopting this approach,

the majority improperly "read[s] into contracts language

which . . . add[s] to or take[s] away from the meaning of the

words already contain[ed] therein." Great Falls Hdwe. Co. v.

South Lakes Village Center Assocs., 238 Va. 123, 126, 380 S.E.2d

642, 644 (1989) (quoting Wilson, 227 Va. at 187, 313 S.E.2d at

398). The majority relies, in part, on a footnote in our

decision in Gayler to support its conclusion. In Gayler, as

noted earlier, we found the parties intended that spousal

support continue in the event of remarriage based on a merged
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reading of the parties' property settlement agreement and its

addendum. 20 Va. App. at 86, 455 S.E.2d at 280. We stated in a

footnote, however:

The use of the term "only" [as in the phrase
"only upon the death of the wife"] by the
parties is alone not determinative of the
issue. Absent the reference to the effect
of remarriage in the original agreement, the
language of the addendum standing alone
would not be sufficient to evince an intent
of the parties to avoid Code §§ 20-109 and
20-109.1.

Id. at 86 n.2, 455 S.E.2d at 280 n.2.

The majority reasons that the terms of the Hardesty

agreement, stating spousal support "cannot be terminated for any

reason," are "very similar" to the language in Gayler and that,

consistent with Gayler, the decision of the trial court must be

affirmed. It is apparent that the meaning of the term "only" in

the Gayler footnote differs in no material respect from the

meaning of the terms used in the property settlement agreement

before us, which states that support would not terminate for

"any reason." While it is arguable that the word "only" and the

phrase "for any reason" produce a semantically indistinguishable

result, the semantic analysis is not determinative. The Gayler

footnote does not construe or adopt a definition of the term,

"only," in the abstract; rather, it construes the term in the

context of the contract provision hypothesized in the footnote,

viz., spousal support is to terminate "only upon death." The

Gayler observation that such a formulation is sufficient to
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overcome the effect of Code § 20-109(D) is not unexpected. As

framed in footnote two, the contract provision deemed

insufficient is the very same provision we found inadequate in

MacNelly. However, the restatement of the MacNelly principle in

the Gayler footnote does not, in itself, establish the rule that

the parties must use the term, "remarriage," to signal their

contemplation of the circumstance.

Furthermore, to the extent the treatment of the word,

"only," in Gayler footnote two was intended to address its use

in other contexts, or to extend to the treatment of any

synonymous terms such as those in the present matter, those

questions were not before us in Gayler. The meaning of such

terms was not necessary for the resolution of the case and

constitutes dicta. 6 It is therefore not binding upon us in

addressing whether an agreement in which the parties fail to

explicitly use the word, "remarriage," but are otherwise clear

and unmistakable about their intent that spousal support

continue, cannot be construed to reflect that intent. 7 To the

6
Black's Law Dictionary defines dicta as: "Opinions of a
judge which do not embody the resolution or determination of the
specific case before the courts. Expressions in court's opinion
which go beyond the facts before court and therefore are the
individual views of author of opinion and not binding in
subsequent cases as precedent." Black's, supra, at 454.
7
In our subsequent decision in Langley, we cited to Gayler
to reiterate the principle that the phrase "only upon death" is
insufficient language to avoid termination of the support
obligation pursuant to Code § 20-109(D). Although both Gayler
and Langley reiterate the holding we reached in MacNelly,
- 20 -
extent the majority extrapolates from the Gayler footnote the

"holding" that the divorcing parties are required to use, as a

matter of law and without exception, the term, "remarriage," to

overcome the reach of the statute, the "holding" is likewise

dicta and not binding upon us. 8

Applying contract principles to the case at bar, I would

find the parties intended that spousal support not terminate

upon the wife's remarriage. Section 15(d) of the Hardestys' PSA

states, "This support cannot be terminated for any reason." The

use of the word "any" encompasses all possible reasons and

circumstances which might require termination of the support

obligation. To state that the support obligation would not

terminate for "any" reason is no different than stating there is

no reason whatsoever that husband's support obligation not

neither decision stands for the proposition that, in all
contexts, the term "remarriage" must be employed by the parties.
8
In Gayler, the Court was called upon to construe an
agreement to determine the parties' intent. In that context,
the excision by addendum of the term, "remarriage," from the
agreement provision providing for the termination of support
"upon the death or remarriage of the wife," was significant and,
in accordance with the general principles of contract language
construction, we held that the parties had contemplated the
effect of "remarriage" on spousal support and intended that it
continue. In our subsequent decision in Langley, we cited to
Gayler footnote two to reiterate the principle that the phrase
"only upon death" is insufficient language to avoid termination
of the support obligation pursuant to Code § 20-109(D), a
principle first established in MacNelly. Although both Gayler
and Langley reiterate the holding we reached in MacNelly,
neither decision stands for the proposition that, in all
contexts, the term "remarriage" must be employed by the parties.
- 21 -
continue. As a matter of necessary logic, it follows that

wife's remarriage is not a reason for terminating her support in

the case at bar. The parties' intent is clear and unmistakable

from its plain meaning. As such, it is express; there is

nothing to infer or imply from it.

Accordingly, I would reverse the decision of the trial

court.

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Kelsey, J., with whom Agee, J., joins, dissenting.

In my opinion, the majority correctly reads our prior panel

decisions, including MacNelly v. MacNelly, 17 Va. App. 427, 430,

437 S.E.2d 582, 584 (1993), and Gayler v. Gayler, 20 Va. App.

83, 86 n.2, 455 S.E.2d 278, 280 n.2 (1995), to have

extrapolated the phrase "unless otherwise
provided" in Code § 20-109(D) to apparently
require explicitly stating the words
"remarriage" or "death" in a property
settlement agreement in order to overcome
the statutory presumption that spousal
support payments terminate upon the death of
a spouse or the payee spouse's remarriage.

Hardesty v. Hardesty, 39 Va. App. 102, 107, 570 S.E.2d 878, 880

(Agee, J., concurring), en banc granted, 39 Va. App. 253, 572

S.E.2d 493 (2002).

Under a fair reading of the MacNelly-Gayler extrapolation,

it can be said that "[b]y inference, our decisions forbid any

other language, no matter how clear or express, from rebutting

the statutory presumption unless the specific words 'remarriage'

or 'death' appear in the operative contract provision." Id.

And that is true "regardless of how clear and unmistakable" the

meaning of a contractual provision "may appear to a reader of

the English language." Id.

The extrapolation of MacNelly and Gayler evolved into the

ratio decidendi of Langley v. Johnson, 27 Va. App. 365, 376, 499

S.E.2d 15, 20 (1998). Relying on Gayler footnote 2, Langley

held that the separation agreement "failed expressly to state

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that the husband's support obligation would not terminate upon

the wife's remarriage," id. at 376, 499 S.E.2d at 20, and any

contractual language less than that would not suffice. 9 In doing

so, Langley successfully refuted the maxim, "Breath spent

repeating dicta does not infuse it with life." Metro. Stevedore

Co. v. Rambo, 515 U.S. 291, 300 (1995).

The dissent's effort to distinguish these cases away does

not persuade me. For that reason, if I were sitting on a

three-judge panel deciding this case, I too would take the

majority's view —— being bound by prior panel precedent under

the interpanel accord component of the stare decisis doctrine.

See Hardesty, 39 Va. App. at 108, 570 S.E.2d at 881 (Agee, J.,

concurring) ("Accordingly, bound by the doctrine of stare

decisis, I concur in the result."). "This principle applies not

merely to the literal holding of the case, but also to its ratio

decidendi —— the essential rationale in the case that determines

the judgment." Clinchfield Coal Co. v. Reed, 40 Va. App. 69,

73-74, 577 S.E.2d 538, 540 (2003).

In view of this principle, the issue now is whether the en

banc court should overrule the intended (per the majority) or

9
"Indeed, the language of the parties' agreement is
virtually identical to 'the language of the [Gayler] addendum
standing alone [which] would not be sufficient to evince an
intent of the parties to avoid the operation of Code §§ 20-109
and 20-109.1. 20 Va. App. at 86 n.2, 285 S.E.2d at 280 n.2."
Langley, 27 Va. App. at 374, 499 S.E.2d at 20.
- 24 -
unintended (per the dissent) consequences of these prior panel

decisions. We certainly have the authority to do so. See

Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143

(2002) (recognizing that prior panel decisions remain "subject

to review by the Court of Appeals sitting en banc"); Code

§ 17.1-402(D) ("The court sitting en banc shall consider and

decide the case and may overrule any previous decision by any

panel or of the full court."). We should exercise that

authority if a "detailed inquiry" demonstrates that "a mistake

exists in our prior decisions." Armstrong v. Commonwealth, 36

Va. App. 312, 321, 549 S.E.2d 641, 645 (2001) (citations and

internal quotation marks omitted). For two reasons, I believe a

mistake of that magnitude exists here. 10

10
We sit today as an en banc court reviewing prior
three-judge panel decisions. We are not reconsidering a prior
en banc decision, which would be analogous to the Virginia
Supreme Court reconsidering its own precedent (the situation
addressed in the stare decisis citations listed by the
majority). In this respect, multi-panel appellate courts are
structurally different from unitary appellate courts. While the
determinacy concerns underlying stare decisis still play an
important role when an en banc court reviews a panel decision,
the doctrine cannot be of such force that it binds the en banc
court or in any way undermines the en banc court's duty under
Code § 17.1-402(D) to provide full-court review of prior
three-judge panel decisions. See generally United States v.
American-Foreign S.S. Corp., 363 U.S. 685, 689-90 (1960) ("The
principal utility of determinations by the courts of appeals in
banc is to enable the court to maintain its integrity as an
institution by making it possible for a majority of its judges
always to control and thereby to secure uniformity and
continuity in its decisions, while enabling the court at the
same time to follow the efficient and time-saving procedure of

- 25 -
 A.

First, the extrapolation introduced into the law by

MacNelly and Gayler, when carried to its logical extreme, as

this case illustrates as well as any, produces a truly anomalous

result. The majority holding boils down to a simple

proposition: An agreement stating that spousal support "cannot

be terminated for any reason" does not include termination for

the reason of remarriage. Under the majority's reasoning, the

agreement should have said something along these lines:

"Support cannot be terminated for any reason, and, by saying

'for any reason,' we mean to include for the reason of

remarriage."

The majority argues that even though "on its face the

language of the PSA seems to clearly reflect the intent of the

parties," the agreement's failure to use talismanic words

creates ambiguity —— the kind that could lead to further

litigation and thereby "undermine the statute's purpose." Ante,

at 8; see also Hardesty, 39 Va. App. at 107, 570 S.E.2d at 880

(also noting that "on its face the language of the PSA seems to

clearly reflect the intent of the parties"). The hunt for the

statutory purpose of Code § 20-109(D), however, has led to a

self-defeating irony: But for the magic words requirement, the

having panels of three judges hear and decide the vast majority
of cases as to which no division exists within the court.").
- 26 -
contractual provision "on its face," ante, at 8; see also

Hardesty, 39 Va. App. at 107, 570 S.E.2d at 880, provides

sufficient clarity to discern the intent of the parties. The

alleged ambiguity exists only because the majority discards the

obvious and unqualified meaning of the word "any" in the

property settlement agreement.

Had this case been decided by the application of the

plain-meaning rule (which governs most other contracts in

Virginia and, except for this one topic, still governs

separation agreements), the trial court, the majority, and the

dissent would be in full accord. Each would agree that the

phrase "for any reason" means what it says and thus includes

remarriage. No inductive inference is required here. The

meaning comes directly from the words themselves.

In no other context have Virginia courts struggled over

whether the term "any" means any. See, e.g., Sussex Cmty.

Servs. Ass'n v. Va. Soc'y for Mentally Retarded Children, 251

Va. 240, 243, 467 S.E.2d 468, 469 (1996) ("The word 'any,' like

other unrestrictive modifiers such as 'an' and 'all,' is

generally considered to apply without limitation."); Rubin v.

Gochrach, 186 Va. 786, 797, 44 S.E.2d 1, 5-6 (1947) ("The words

'any renewal' are comprehensive, and logically include more than

one renewal. The meaning of the word 'any' in the connection in

which it was used seems to be clear and deliberate."); Cox v.

Cox, 16 Va. App. 146, 148, 428 S.E.2d 515, 516 (1993) ("The
- 27 -
plain and unambiguous meaning of the word 'any' is 'one or more

indiscriminately from all those of a kind.'" (quoting Webster's

Third New International Dictionary 97 (1981))). In this case,

therefore, the quest for greater clarity and less litigation has

produced neither.

B.

Second, when the legislature requires that a verbatim

contractual term be used, its enactments usually say exactly

that. See, e.g., Code § 8.2-316(2) (requiring disclaimers of an

implied warranty of merchantability to "mention" the word

"merchantability"); Code § 8.01-433.1 (requiring contracts

authorizing confession of judgment to include specific statutory

verbiage). Because Code § 20-109(D) includes no such

requirement, it should not be added by interpretative accretion

even if we could be persuaded that doing so would improve upon

the basic point of the statute. "Courts are not allowed to

write new words into a statute plain on its face." Shenk v.

Shenk, 39 Va. App. 161, 171, 571 S.E.2d 896, 901 (2002) (quoting

Flanary v. Milton, 263 Va. 20, 23, 556 S.E.2d 767, 769 (2002));

see also SIGNAL Corp. v. Keane Fed. Sys., Inc., 265 Va. 38, 46,

574 S.E.2d 253, 257 (2003) (courts are "not free to add

language" to statutes under the guise of interpretation); Woods

v. Mendez, 265 Va. 68, 75, 574 S.E.2d 263, 267 (2003) (courts

cannot "add words to the statute").

- 28 -
 The majority's suggestion that today's decision represents

a cautious, and thus commendable, deference to the legislature

is unconvincing. See Ante, at 7. We are asked to believe that

the General Assembly has implicitly endorsed the majority's

holding because the legislature has not amended the statute to

repeal our prior panel decisions. From that inaction, the

majority reasons, we should infer the General Assembly has by

silence put its legislative imprimatur on the majority's

interpretation of Code § 20-109(D) because the legislature is

"presumed to know the law." Ante, at 7.

I concede the value of the general principle underlying

this view. See, e.g., Burns v. Bd. of Supervisors, 227 Va. 354,

360, 315 S.E.2d 856, 860 (1984). But I would not apply it to

cases where, as here, the interpretation that the legislature

has allegedly endorsed by inaction is both unsettled and a

product of piling dicta upon dicta. See Metro. Stevedore Co.,

515 U.S. at 299-300. Legislative inaction "lacks persuasive

significance," Brown v. Gardner, 513 U.S. 115, 121 (1994)

(citation omitted), when it can be shown that "several equally

tenable inferences may be drawn from such inaction," Cent. Bank

of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511

U.S. 164, 187 (1994) (quoting Pension Benefit Guar. Corp. v. LTV

Corp., 496 U.S. 633, 650 (1990)). See also Zuber v. Allen, 396

U.S. 168, 185-86 n.21 (1969) ("The verdict of quiescent years

- 29 -
cannot be invoked to baptize a statutory gloss that is otherwise

impermissible.").

We need go no further than the differing views of the

majority and the principal dissent in this case to see that

neither interpretation of our prior precedents has claimed a

strong consensus. That being true, how confident can we be that

the General Assembly previously guessed the interpretation the

majority adopts today and then silently decided to endorse that

particular interpretation by not rewriting the statute?

Under these circumstances, legislative silence is a "poor beacon

to follow in discerning the proper statutory route." Zuber, 396

U.S. at 185. The only sure guide is the altogether ordinary

task of reading the statutory text and applying its plain

meaning. See Patterson v. Commonwealth, 39 Va. App. 610, 617,

575 S.E.2d 583, 586-87 (2003). Because the magic-words

extrapolation of our prior panel opinions cannot be grounded in

the plain meaning of Code § 20-109(D), and therefore reflects

that a mistake exists in our prior decisions, I respectfully

dissent.

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