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Amended spousal support statute applies retroactively

Where the parties’ agreement regarding the non-modifiable amount and duration of husband’s spousal support payments to wife did not exactly conform with language required by a July 1, 2018, amendment to the applicable statute, a later amendment that permitted more general language applies retroactively and bars husband’s request to modify his support obligation.

Statutory background

Before the July 1, 2018, amendment of Code § 20-109(C), spouses who made a separation agreement that included spousal support could not later modify the support amount unless the agreement provided a means for doing so.

“Essentially, until 2018, Code § 20-109(C) contained a presumption against modification of spousal support in the context of separation agreements.

“The General Assembly eventually amended the statute to create the opposite effect. On July 1, 2018, an amendment to Code § 20-109(C) was enacted that created a presumption that modification of spousal support was permitted for any separation agreement executed on or after July 1, 2018, unless the agreement contained the exact language specified in the statute.

“Effective July 1, 2020, the statute was amended again. Essentially, the 2020 amendment, in contrast to the specific language requirement of the 2018 amendment, made separation agreements that used general language forbidding modification of spousal support validly non-modifiable.”

The agreement

In this case, the parties signed a separation agreement after the July 1, 2018, amendment. The agreement provided that husband’s spousal support payments to wife could not be modified. However, the agreement’s language did not exactly track the language specified in the amended statute.

The July 1, 2018, amendment provided that, “In suits for divorce … [n]o request for modification of spousal support based on a material change in circumstances or the terms of stipulation or contract shall be denied solely on the basis of the terms of any stipulation or contract that is executed on or after July 1, 2018, unless such stipulation or contract contains the following language: ‘The amount or duration of spousal support contained in this [AGREEMENT] is not modifiable except as specifically set forth in this [AGREEMENT].’ … (emphasis added).

“Although the agreement by the parties in this case stated that it was non-modifiable, it did not contain the exact language specified above; the agreement stated, ‘[s]pousal support shall not be subject to being increased or decreased, by judicial action or otherwise, except as provided in this [a]greement, and the [w]ife specifically waives all claim for additional spousal support from the [h]usband.’”

Later, the statute was amended again, effective July 1, 2020. It “states, in relevant part ‘In suits for divorce … [n]o request for modification of spousal support based on a material change in circumstances or the terms of stipulation or contract shall be denied solely on the basis of the terms of any stipulation or contract that is executed on or after July 1, 2018, unless such stipulation or contract expressly states that the amount or duration of spousal support is non-modifiable.’ … (emphasis added).”

On June 15, 2020, husband sought to modify his support obligation based on changed circumstances. He argued that the July 1, 2018 amendment governed the parties’ agreement and, as a result, he was not barred from seeking a modification. The trial court disagreed, ruling that the July 1, 2020, amendment applied retroactively.

Husband appealed.

Analysis

“The agreement was executed on August 8, 2018. The circuit court found that the 2020 amendment to Code § 20-109(C) retroactively applied to all agreements entered on or after July 1, 2018, in suits for divorce, which husband argues was error. Husband concedes on brief that if the 2020 amendment lawfully and constitutionally applies to the parties’ agreement, his spousal support obligation is non-modifiable. …

“The question before us is whether the language ‘executed on or after July 1, 2018’ makes the 2020 amendment retroactively applicable to agreements executed on or after July 1, 2018, but before July 1, 2020. …

“[T]he General Assembly could have changed the effective date from its 2018 amendment to Code § 20-109(C) when it amended the language, but it did not; the legislature instead simply removed and replaced the modification requirement language for all agreements signed after or on July 1, 2018, indicating that it was the General Assembly’s intent for the amended language to apply to every separation agreement entered into on or since that date.

“The General Assembly also used the word ‘any’ in the 2020 amendment, which reads, ‘any stipulation or contract that is executed on or after July 1, 2018.’ …

“[T]he plain meaning of the phrase ‘any stipulation or contract’ encompasses all agreements of the kind described in the statute that were executed on or after July 1, 2018. To conclude otherwise and exclude agreements executed between July 1, 2018, and July 1, 2020, from the purview of Code § 20-109(C) would render the word ‘all’ meaningless.

“Such a result would be contrary to the well-established principle that statutory amendments are presumed to be purposeful and not unnecessary or in vain. …

“However, here, the date that the parties signed the agreement is not the date that the General Assembly intended the courts to use as the reference point for determining the applicability of the contractual provision in question.

“Both of the General Assembly’s amendments applied to support modification requests of any agreement consummated on or after July 1, 2018. However, as evidenced by the words, ‘no request for modification of spousal support,’ the result of the subsequent amendment in 2020 expressly required a circuit court to apply the law in effect at the time a modification was sought. …

“The 2020 amendment did not alter any contractual rights or provisions, indeed, it actually allowed them to be enforced.

“Therefore, the circuit court’s conclusion that the amendment retroactively applies to the parties’ agreement executed on August 8, 2018 was not error.”

Affirmed.

Kynaston v. Kynaston, Record No. 1243-20-4, June 29, 2021. CAV (Humphreys) from Prince William County Cir. Ct. (Weimer). Samuel A. Leven for appellant, no brief or argument for appellee. VLW 021-7-079, 10 pp. Unpublished.

VLW 021-7-079

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