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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
Record No. 0161-03-1
SHARON A. SMITH
HAROLD E. SMITH, JR.
OPINION BY JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 9, 2003
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge
Barry Randolph Koch (Inman & Strickler, P.L.C., on briefs),
Megan E. Burns (Stephen G. Test; Williams Mullen, on brief), for
Harold E. Smith, Jr. petitioned to terminate his support
obligation because his former
wife was cohabiting with another person. The trial court
terminated support because the parties
merged their support contract into the final decree. It
concluded, "the agreement ceased to exist
as a separate contract immune from court interference." The
wife contends merger did not
nullify the contractual nature of her rights arising from the
agreement and the trial court could
not eliminate her contracted right to spousal support.
We reverse because merger did not make
the contract subject to judicial modification.
The parties were divorced January 4, 1990. Their property
settlement agreement, dated
August 25, 1989, stated that spousal support would
"terminate only in the events of Wife’s
death, Husband’s death or Wife’s remarriage." The final
decree "affirmed, ratified, and
incorporated" the agreement and ordered compliance with its
terms. The husband filed the
petition to terminate support in 2001 after statutory amendments
authorized termination of
support upon cohabitation. The wife conceded she cohabited with
another and the agreement
merged into the final decree.
Code ? 20-109(A) mandates termination of spousal support upon
proof of habitual
cohabitation unless a stipulation or contract provides
otherwise. Rubio v. Rubio, 36 Va. App.
248, 549 S.E.2d 610 (2001), held the statute did not apply
retroactively to a contract that was
incorporated, but not merged, into the final decree. The holding
specifically deferred ruling on
the effect merger may have had; "no merger occurred, and we
do not address what effect, if any,
merger would have imposed upon Mr. Rubio’s support
obligation." Id. at 255, 549 S.E.2d at
To determine whether merger extinguished the agreement’s
limitation on judicial
modification of the contracted support, we review the
development of the trial court’s authority
to establish and modify spousal support. Initially, support
arising from contract and that arising
from court decree were distinct and mutually exclusive
entitlements arising from unrelated legal
Section 5111 of the Code of 1919 was the predecessor of Code ?
20-109. It was the
source of the trial court’s authority to decree alimony.
Alimony, decreed by court, was distinct
from support and maintenance, created by contract. Alimony
stemmed from the common-law
right of the wife to support by her husband. It was not a
property settlement upon dissolution of
the marriage and was "‘not a judgment for the enforcement
of any contract, express or implied,
existing between the parties thereto, but for the enforcement of
a duty . . . .’" Eaton v. Davis,
176 Va. 330, 338, 10 S.E.2d 893, 897 (1940) (citation omitted).
Support was in lieu of alimony
and arose as a contracted remedy negotiated by the husband and
wife. It was enforced by an
action of assumpsit like any other contract. Newman v. McComb,
112 Va. 408, 409-10, 71 S.E.
624, 625 (1911). A court had no authority to modify the contract
or to enforce it by its contempt
Until 1934, trial courts had no authority to modify alimony
decreed in a vinculo divorces
unless the power was specifically reserved in the final decree.
The General Assembly amended
Code ? 5111 to give the trial court authority to modify any
existing decree of alimony upon
proof a change was reasonable and fair. 1934 Va. Acts ch. 329.
Eaton ruled the authority to
modify alimony applied retroactively because alimony was not a
property right. 176 Va. at 340,
10 S.E.2d at 898. The decision emphasized the distinctive
features of court ordered alimony and
contractual support that made them mutually exclusive remedies.
In 1944, the General Assembly amended Code ? 5111 and
restricted a trial court’s
authority to decree alimony when the parties had entered a
contract for support. The
this amendment was later summarized in Harris v. Harris, 217 Va.
680, 681, 232 S.E.2d 739,
Under the proviso contained in Code ? 20-109, if a stipulation
contract between spouses is filed with the pleadings or
in a divorce case, then no decree or order directing the payment
alimony (now support and maintenance) for a spouse, suit money,
or counsel fees shall be entered except in accordance with that
stipulation or contract unless a party raise objection thereto
entry of the decree. As we pointed out in McLoughlin v.
McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970), this
restricts the court’s jurisdiction over awarding "alimony
support and maintenance], suit money, or counsel fee" to
of the contract.
The trial court’s authority to award and modify alimony was
now constrained by any contract for
support. The distinctive qualities of alimony and support, which
had been mutually exclusive,
were beginning to intertwine.
Alimony and support began as exclusive remedies offering unique
disadvantages. Alimony offered the great advantage of
enforcement by the contempt power of
the courts. However, it was not a property right, it terminated
at death, and it could be modified
or eliminated upon changed circumstances. Foster v. Foster, 195
Va. 102, 108, 77 S.E.2d 471,
474-75 (1953). Support was not enforceable by contempt. Moore v.
Crutchfield, 136 Va. 20,
28, 116 S.E. 482, 484 (1923). It only offered contract remedies.
Martin v. Martin, 205 Va. 181,
185, 135 S.E.2d 815, 818 (1964). However support was a property
right, it could extend beyond
death, and it was not subject to judicial modification or
elimination. Higgins v. McFarland, 196
Va. 889, 895-97, 86 S.E.2d 168, 172-73 (1955). Contractual
support offered the great advantage
of the stability and the protection against modification or
elimination, absent agreement of the
parties, afforded to property rights.
The distinctive features of alimony and support presented
difficult choices. Durrett v.
Durrett, 204 Va. 59, 129 S.E.2d 50 (1963), illustrated the
Mary L. Durrett was afforded two distinct methods of compelling
her husband to make provision for her support and maintenance.
With the choice of remedies before her, she elected to pursue a
remedy by way of alimony, rather than relying on the contract of
August 1, 1947. She may have been prompted to seek the alimony
allowance during her life, because of the attributes and legal
of alimony hereinbefore mentioned. She was suffering from what
she thought was an incurable disease; and, perhaps, did not
to survive her husband. She got what she asked for, and ought
now be allowed to deny the meaning and effect of the decree in
Id. at 64, 129 S.E.2d at 54. A spouse had a choice of remedies:
by decree of alimony, or by
contract in lieu of alimony. Martin, 205 Va. at 185, 135 S.E.2d
at 818. Alimony offered the
formidable compulsion of a citation for contempt, but lacked
protection against modification or
elimination. Contracted support offered stability and
predictability but lacked the threat of
incarceration to enforce compliance.
The enactment of Code ? 20-109.1 in 1970 authorized courts to
enforce support contracts
by contempt. 1970 Va. Acts ch. 501. The great advantage of
alimony became available to
contractual support and eliminated its great disadvantage.The
practical distinctions between
the forms of remedy blurred, and the choice between the two
became less perilous. Indeed, the
term "alimony" discontinued, and "spousal
support" became the collective term to describe both
forms of support.
Prior to the enactment of Code ? 20-109.1, support arising from
contract could only be
enforced by contempt power if it was converted from support in
lieu of alimony into alimony.
Once both types of support were enforceable by contempt power,
the nature of the support was
no longer the determinative factor when addressing enforcement
issues. However, the nature of
the support remained determinative when analyzing whether a
support award was subject to
judicial or legislative modification. Contractual rights were
property rights that subsequent court
decree or legislative enactment could not modify.
In Shoosmith v. Scott, 217 Va. 290, 227 S.E.2d 729 (1976), the
husband defended an
action for accrued support payments claiming amendments to Code
?? 20-109 and 20-109.1
terminated his obligation. The amendments mandated that
contractual support cease on
remarriage unless specifically permitted in the contract.
The Court held the wife’s right to
support did not depend alone upon the final decree, but it arose
from her property settlement
agreement. The decree was a final adjudication of her property
right and could not be abrogated
by subsequent legislative action. Id. at 292, 227 S.E.2d at 731.
Upon rehearing, the Court
distinguished the Shoosmith decree from that in Durrett.
Shoosmith v. Scott, 217 Va. 789, 232
S.E.2d 787 (1977). It held the payments decreed in Durrett were
alimony while those in
Shoosmith were contract based payments in lieu of alimony. Id.
at 793, 232 S.E.2d at 789. The
Shoosmith contract, like all private contracts, could not be
impaired by legislative action. Id.
In Doherty v. Doherty, 9 Va. App. 97, 383 S.E.2d 759 (1989), the
husband asserted the
contract defenses of laches, estoppel, and the statute of
limitations as a bar to a claim for support
arrearages that accrued prior to the final decree. The final
decree had incorporated a contract,
which characterized the payments as "monthly alimony
payments," and ordered compliance with
the decree. Id. at 99, 383 S.E.2d at 760. The decision relied on
Durrett, 204 Va. at 62, 129
S.E.2d at 52, to distinguish decrees for alimony from those
based on contract. Doherty held the
payments were alimony and enforcement of the arrearages was not
subject to the husband’s
contract defenses. "We do not determine here whether
husband’s pleas in bar would be available
in an action brought solely to enforce the contract. In the case
before us the contract was merged
into the final decree. It is not the contract but rather the
decree that is being enforced." 9
Va. App. at 99, 383 S.E.2d at 760. In explaining its
characterization that the contract merged
into the decree, the opinion quoted from 24 Am. Jur. 2d Divorce
and Separation ? 841 (1983):
"The prevailing view is that where the underlying
obligation created by the marital agreement is
a promise to pay money, the obligation is merged into the
Doherty used the word "merge" to describe the process
by which a contract for "alimony
payments" became a decree of alimony not subject to
contract defenses. The excerpt from
American Jurisprudence Second indicated that a majority of
states held the contract ceased to
exist when it "merged." Doherty gave no suggestion it
adopted such a view, or that it reflected
Virginia law. The residual legal effect of the contract was not
an issue in the case. Doherty dealt
with enforcement, and in that context, it distinguished for the
first time between contracts
affirmed, ratified, and incorporated, but not merged, from those
affirmed, ratified, and
incorporated and also merged.
Hering v. Hering, 33 Va. App. 368, 373, 533 S.E.2d 631, 633
(2000), noted this
distinction: "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." Relying on Doherty, this Court held:
"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." Id. at 373-74, 533 S.E.2d at 634. If
a contract was not merged, either the contract or the decree
could be enforced. The Hering
contract was still enforceable as a contract because it did not
merge into the decree. Subsequent
amendments to Code ? 20-109(A) could not apply retroactively
because they would be
unconstitutional impairments of contract. Id. at 375, 533 S.E.2d
Rubio, 36 Va. App. at 254, 549 S.E.2d at 613, repeated the
discussion in Hering about
incorporating and merging contracts into decrees. It concluded
Rubios’ agreement excluded
merger, even though no provision addressed the topic. Because
the contract did not merge,
Hering controlled: the contract rights remained enforceable and
subsequent statutory changes
could not impair them. Id. at 255, 549 S.E.2d at 613.
The cases that employ the term "merge" addressed
issues of enforceability. For example,
Rubio concluded: "That obligation remains an enforceable
contract, excluded from the operation
of Code ? 20-109(A) and insulated by Code ? 20-190(C) from
judicial alteration." Id.
Those cases did not suggest that "merger" vaporized
all rights arising from the contract. They
did not address whether the advantages of stability and
protection from outside modification
vanished, supplanted by a decree subject to the modification the
parties contracted to avoid.
Merger only addressed enforcement not modification.
Code ? 20-109 limits the authority of a trial court to make or
modify spousal support
awards when an agreement exists. "In such cases, the intent
of the parties as expressed in the
agreement controls, and the agreement is treated as a contract
and construed in the same manner
as all contracts." White v. White, 257 Va. 139, 144, 509
S.E.2d 323, 325 (1999). The statute
was enacted to require that decrees for support honor agreements
made by the parties; it prevents
a court from rewriting the parties’ contract. It stands as a
clarion pronouncement of the policy
encouraging settlement by agreement. The statute does not employ
the word "merge." It applies
to "any valid agreement" once the court affirms the
agreement. See id.; Rubio, 36 Va. App. at
253, 549 S.E.2d at 612-13; Hering, 33 Va. App. at 373, 533
S.E.2d at 634.
In this case, the parties agreed spousal support only terminated
on death or remarriage.
Nothing suggested an intention to terminate support upon
cohabitation. We do not infer
anything from the agreement’s failure to address cohabitation.
When the parties made their
contract, Code ? 20-109 did not terminate support upon
One of the basic rules of construction of contracts is that the
force at the date of making a contract determines the rights of
parties under the contract. The law effective when the contract
made is as much a part of the contract as if incorporated
Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974)
The parties’ contract was merged into the final decree, but we
discern no reason for
applying a different result from that reached in Rubio and
Hering where the contracts did not
merge. Merger prescribes the methods of enforcing entitlements
created by contract, and the
distinction between merged and non-merged agreements is
important in the context of
enforcement. The situation is different when addressing the
authority of a court to modify the
contract under Code ? 20-109. The development of the remedies
available to a spouse seeking
support eliminated the dilemma of choosing between mutually
exclusive forms of relief. Basic
property rights that limit judicial modification arise when the
parties form an agreement. Those
essential benefits and detriments now need not expire if the
contract merges into the decree for
enforcement purposes. Indeed, a party would receive no benefit
if merger obliterates negotiated
rights that afford stability and predictability to the parties
after divorce. Accordingly, the
judgment modifying the contract is reversed, and the case
remanded for reinstatement of the
Reversed and remanded.
The wife also
maintains the trial court may not constitutionally apply the statutory
changes to Code ? 20-109(A) adopted in 1997 to a 1989 contract.
Based on our decision, we
need not address this issue. Similarly, we do not address the
husband’s objection to the date set
for terminating support.
amended their initial 1989 agreement in 1994. The trial court affirmed,
ratified, and incorporated the amended contract in a decree
entered June 2, 1994 that in turn
amended the 1990 final decree of divorce.
Davis, 176 Va. 330, 337-38, 10 S.E.2d 893, 896-97 (1940), explained:
Alimony had its origin in the ecclesiastical courts of
England. These courts had the power of awarding a mensa
decrees, but absolute divorce was unknown to them, the
jurisdiction to grant an absolute divorce resting solely in
The ecclesiastical law of England became part of the
common law of Virginia, which therefore embraced a mensa
divorces and the power in the courts to grant alimony in
conjunction with such divorces. The statutes authorizing the
Virginia courts to grant a mensa divorces are thus
the common law. Divorces a vinculo, on the other hand,
much later in Virginia, and are wholly creatures of statute law.
1944 Va. Acts
ch. 277 provided, in part:
if a stipulation or contract signed by the party to whom such
might otherwise be awarded is filed with the pleadings or
depositions, then no decree or order directing the payment of
alimony, suit money, or counsel fee shall be entered except in
accordance with that stipulation or contract unless such party
objection thereto prior to entry of the decree.
20-109.1 as first enacted provided:
Any court may affirm, ratify and incorporate in its decree
dissolving a marriage or decree of divorce whether from the bond
of matrimony or from bed and board, any valid agreement between
the parties, or provisions thereof, concerning the conditions of
maintenance of the parties, or either of them and the care,
and maintenance of their minor children. Where the court
ratifies and incorporates in its decree such agreement or
thereof, it shall be deemed for all purposes to be a term of the
decree, and enforceable in the same manner as any provision of
such decree. The provisions of this section shall apply to any
decree hereinbefore or hereinafter entered affirming, ratifying
incorporating an agreement as provided herein.
1970 Va. Acts ch. 501.
amendments, effective July 1, 1972, stated:
provided that if any former spouse, for whom provisions for
alimony or support or maintenance have been made in such
stipulation or contract whether entered into heretofore or
shall thereafter remarry, the court shall, upon such remarriage,
order that such alimony or support or maintenance for such
spouse shall cease as of the date of such marriage, and upon the
death of any such former spouse, the court shall order that no
payment shall be made to the estate of such decedent on account
such provisions, unless such stipulation or contract otherwise
specifically provides in the event of remarriage or death.
1972 Va. Acts ch. 482.