Don't Miss

SHOAF v. SHOAF


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


SHOAF

v.

SHOAF


JULY 24, 2001

No. 2010-99-2

Present: Chief Judge Fitzpatrick, Judges
Benton, Willis, Elder,

Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements

and Agee

Argued at Richmond, Virginia

JAMES VAN SHOAF, JR.

v.

JOYCE HOBSON SHOAF

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF
HENRICO COUNTY

Catherine C. Hammond, Judge

Anton J. Stelly (Thompson,
Smithers, Newman, Wade & Childress, L.L.P.,
on briefs), for appellant.

Deborah S. O’Toole (Frank N.
Cowan; Ishneila Ingalls Gubb; Cowan & Owen,
P.C., on brief), for appellee.


MEMORANDUM OPINION[1] BY JUDGE
JERE M. H. WILLIS, JR.

In an unpublished opinion, a divided panel of
this Court affirmed the judgment of the trial court, holding that
the provisions of Code ? 20-109(A) did not apply to this
case. See Shoaf v. Shoaf, No. 2010-99-2 (Va. Ct.
App. August 29, 2000). We stayed the mandate of that decision and
granted rehearing en banc. Upon rehearing en
banc, we vacate the mandate of the panel decision and
withdraw that opinion, and affirm the judgment of the trial
court.

Prior to the entry of their final divorce
decree in 1974, the Shoafs entered into a property settlement
agreement. The agreement, which was incorporated into the final
decree, provided, in relevant part:

The parties agree that the
Husband shall pay to the Wife the sum of NINETY
AND NO/100 ($90.00) DOLLARS per week alimony,
until such time as the WIFE shall remarry.

In March 1999, Mr. Shoaf moved to modify or
terminate Ms. Shoaf’s spousal support pursuant to Code
? 20-109(A), asserting that for more than one year after
July 1, 1997, she had habitually cohabited with another person in
a relationship analogous to a marriage. Ms. Shoaf admitted
cohabiting in such a relationship. The trial court denied the
motion, holding that the parties’ property settlement agreement
imposed a contractual obligation that was not subject to
modification by subsequent statutory amendment. We affirm that
holding.

In 1997, the General Assembly modified Code
? 20-109(A) to include the following 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.

See 1997 Va. Acts, ch. 241.[2]

This case is controlled by our decision in Rubio
v. Rubio
, this day decided, ___ Va. App. ___, ___ S.E.2d ___
(2001) (en banc). The trial court found that the
parties’ property settlement agreement imposed an ongoing
contractual obligation. The record supports that finding. Thus,
the trial court did not err in holding that this case falls
within one of the exceptions set forth in the statute and its
refusal to abate Mr. Shoaf’s spousal support obligation.

The judgment of the trial court is affirmed.

Affirmed.

Benton, J., dissenting.

When the husband filed his petition to
terminate or decrease spousal support on the ground that his
former wife was cohabiting with a man, Code ? 20-109(A)
read, in pertinent part, as follows:

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 (1) 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.

That statute complimented the portion of Code
? 20-109.1 that provided: "Upon the death or
remarriage of the spouse receiving support, spousal support shall
terminate unless otherwise provided by stipulation or
contract."

In Langley v. Johnson, 27 Va. App. 365,
499 S.E.2d 15 (1998); MacNelly v. MacNelly, 17 Va. App.
427, 437 S.E.2d 582 (1993); Radford v. Radford, 16 Va.
App. 812, 433 S.E.2d 35 (1993), and Miller v. Hawkins, 14
Va. App. 192, 415 S.E.2d 861 (1992), we held that the public
policy declared by Code ?? 20-109 and 20-109.1 is that
spousal support does not survive the terminating events specified
in those statutes unless the parties’ agreement contained express
language that spousal support will continue beyond the
terminating event. It is undisputed that the agreement in this
case does not expressly provide for the continuation of spousal
support to the former wife even if she "has been habitually
cohabiting with another person in a relationship analogous to a
marriage." Code ? 20-109(A). Applying the logic of
those cases, I would hold that the trial judge erred in ruling
that spousal support could not be reduced or eliminated because
of the wife’s cohabitation.

"In Virginia, divorce is a creature of
statutes enacted in clear, detailed language." Milligan
v. Milligan
, 12 Va. App. 982, 987, 407 S.E.2d 702, 704
(1991). By well established case law, the incidents related to
the creation and dissolution of marriage are "a social
relation subject to the State’s police power." Loving v.
Virginia
, 388 U.S. 1, 7 (1967) (citing Maynard v. Hill,
125 U.S. 190 (1888)). It is the marital relationship that gives
rise to a claim for spousal support. Thus, to the extent the
General Assembly has enacted legislation that determines when
spousal support may be terminated, see Code
?? 20-109 and 20-109.1, it is acting within the state’s
police powers to provide for the comfort and general welfare of
its citizens.

Addressing the interrelationships between the
impairment of contracts and the police power of a state, the
Supreme Court has ruled as follows:

"The contract clauses of
the Federal Constitution and the Virginia Bill of
Rights protect against the same fundamental
invasion of rights." 1 A. Howard,
Commentaries on the Constitution of Virginia 203
(1974). The General Assembly "shall not pass
any law impairing the obligation of
contracts." Va. Const. art. I, ? 11. See
U.S. Const. art I, ? 10 ("No State
shall . . . pass any
. . . Law impairing the Obligation
of Contracts.") The Virginia contract clause
has been interpreted by this Court in a manner
similar to the treatment of the federal clause by
the United States Supreme Court. A. Howard at
207.

Even though the language of the
contract clause is unambiguous and appears
absolute, it is not "the Draconian provision
that its words might seem to imply." Allied
Structural Steel Co. v. Spannaus
, 438 U.S.
234, 240 (1978). The proscription against
enacting statutes that impair the obligation of
contracts does not prevent the State from
exercising power that is vested in it for the
common good, even though contracts previously
formed may be affected thereby. "’This
power, which in its various ramifications is
known as the police power, is an exercise of the
sovereign right of the Government to protect the
lives, health, morals, comfort and general
welfare of the people, and is paramount to any
rights under contracts between
individuals.’" Id. at 241 (quoting Manigault
v. Springs
, 199 U.S. 473, 480 (1905)). The
contract clause "does not operate to
obliterate the [State's] police power." 438
U.S. at 241. And, as Mr. Justice Holmes wrote in Hudson
County Water Co. v. McCarter
, 209 U.S. 349,
357 (1908): "One whose rights
. . . are subject to state
restrictions, cannot remove them from the power
of the State by making a contract about
them."

Working Waterman’s Ass’n v. Seafood
Harvesters, Inc.
, 227 Va. 101, 109-10, 314 S.E.2d 159, 163-64
(1984).

With regard to private contracts, the United
States Supreme Court has held that the contract clause only
requires that "[l]egislation adjusting the rights and
responsibilities of contracting parties must be upon reasonable
conditions and of a character appropriate to the public purpose
justifying its adoption." United States Trust Co. v. New
Jersey
, 431 U.S. 1, 22 (1977). Thus, when state statutes act
to impair private contracts, the Supreme Court has
"repeatedly held that unless the State is itself a
contracting party, courts should ‘"properly defer to
legislative judgment as to the necessity and reasonableness of a
particular measure."’" Keystone Bituminous Coal
Assn. v. DeBenedictis
, 480 U.S. 470, 505 (1987) (citations
omitted). I presume from the discussion in Working Waterman’s
Ass’n
, that the Virginia contract clause is to be interpreted
"in a manner similar to the treatment of the federal
clause." 227 Va. at 109, 314 S.E.2d at 163.

I would hold, therefore, that the legislative
amendment operates to allow the termination or reduction of
spousal support in this case. When adopting Code
? 20-109(A), the legislature clearly made a public policy
choice and made it upon a reasonable condition. In so doing, the
legislature made a concession to the contractual rights of the
parties by providing an exemption for those instances in which
the parties by their contract expressly provided otherwise. Here,
we are called upon to apply a law to a matter on which the
contract is silent.

Moreover, the statute specifically addresses
the applicable date for the legislation by reference to conduct
that occurs "one year or more commencing on or after July 1,
1997." Code ? 20-109(A). By this specific reference,
the legislature expressed its clear intention. The following
language from one of our precedents is instructive:

[It is] apparent from the
language of the statute, as well as the necessary
consequences of the act, that it applies to cases
filed after the effective date of the statute,
regardless of when the cause of action arose. To
hold otherwise would require courts a generation
from now to apply outmoded principles of law.
Indeed, we would postpone solving for some time
the very inequity the legislature sought to
remedy. Disputes would arise over when the
grounds for divorce occurred and which support
and property laws applied. The legislature could
not have intended that result.

Booth v. Booth, 7 Va. App. 22, 26, 371
S.E.2d 569, 572 (1988).

Because our decision in Hering v. Hering,
33 Va. App. 368, 533 S.E.2d 631 (2000), is contrary to the
principle decided in Working Waterman’s Ass’n, and,
indeed, fails to reference that decision or to discuss that
decision’s ruling regarding the legislature’s power to impair
contractual obligations, I would hold that Hering was
wrongly decided.

For these reasons, I would hold that Code
? 20-109(A) applies to the contract at issue in this case
and does not impermissibly impair that contract. Accordingly, I
would reverse the judgment refusing to reduce or eliminate the
husband’s spousal support in light of Code ? 20-109(A) and
remand for reconsideration.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

[2] In 2000, the legislature by amendment substituted
"shall" for "may decrease or" and substituted
"unconscionable" for "constitute a manifest
injustice" in subsection (A) of Code ? 20-109. See
2000 Va. Acts, ch. 218.

Scroll To Top