Richard N. Hamlin v. Janet S. Hamlin ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
RICHARD N. HAMLIN
MEMORANDUM OPINION * BY
v. Record No. 1650-00-1 JUDGE WILLIAM H. HODGES
OCTOBER 2, 2001
JANET S. HAMLIN
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
David S. Holland (Moody E. Stallings, Jr.;
Stallings & Richardson, P.C., on brief), for
appellant.
Mary Keating O'Neill (Lisa Ehrich; Pender &
Coward, P.C., on brief), for appellee.
Richard Hamlin (husband) contends the trial court erred in
refusing to hear evidence of cohabitation by Janet Hamlin (wife),
where such evidence would have allowed him to terminate spousal
support pursuant to Code § 20-109. For the reasons that follow,
we affirm.
On March 22, 1988, the trial court entered a decree awarding
husband and wife a divorce. In the decree, the trial court
affirmed, ratified and incorporated the parties' "Contract and
Stipulation" dated November 1, 1987 (the agreement). In paragraph
five of the agreement, husband agreed to pay spousal support.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
According to the agreement, spousal support will terminate "only
upon the death of either party or upon wife's remarriage."
On June 25, 1999, husband petitioned the trial court to
terminate spousal support because wife was cohabiting in a
relationship analogous to marriage. In its order, the trial court
"refused to hear the issue of cohabitation in that the Court
finds that neither of the two contingencies for termination
[death or remarriage] had, in fact, occurred." The trial court
further found "that Code § 20-109 as amended in 1997 does not
affect the agreement entered into between the parties in 1987."
(Emphasis added).
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.
(Emphasis added). See 1997 Va. Acts, ch. 241. 1
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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.
On March 26, 2001, the legislature amended and reenacted
Code § 20-109 eliminating the proviso limiting application of
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The resolution of the issue presented by this appeal is
controlled by our recent decision in Hering v. Hering, 33 Va.
App. 368, 533 S.E.2d 631 (2000).
In Hering, the parties entered into a marital settlement
agreement requiring husband to make monthly support and
maintenance payments to wife until wife remarried or until
either party died. Id. at 369-70, 533 S.E.2d at 632. The final
decree of divorce ratified, affirmed and incorporated the
agreement. Id. at 370, 533 S.E.2d at 632. The trial court
ruled "that application of Code § 20-109(A) to the parties'
contract would constitute an unconstitutional impairment of
contract." Id. at 371, 533 S.E.2d at 633. We agreed with the
trial court's reasoning and affirmed. See id. at 375, 533
S.E.2d at 634-35.
In Rubio v. Rubio, 36 Va. App. 248, 254-55, 549 S.E.2d 610,
613 (2001) (en banc), we relied on the reasoning in Hering to
reverse the trial court's decision to modify husband's spousal
support contractual obligation. Like the Herings, the Rubios
had entered into a stipulation agreement detailing, inter alia,
husband and wife's agreement as to spousal support. See id.
Here, like the parties in Hering and Rubio, husband and
wife entered into an agreement providing only for termination of
spousal support in the event of wife's remarriage or the death
the cohabitation terminating event to post-July 1, 1998 orders.
See 2001 Acts, chs. 720, 725 & 740.
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of either party. Husband and wife included no provision
terminating spousal support based upon wife's cohabitation.
In denying husband's petition and refusing to hear evidence
of cohabitation, the trial court relied on two findings. First,
it found that neither remarriage nor death had occurred to
trigger termination of spousal support based on cohabitation.
Then, it ruled that the newly enacted provision of Code § 20-109
relating to cohabitation did "not affect the agreement entered
into between the parties in 1987." (Emphasis added). Implicit
in that finding is the trial court's determination that the
agreement was and remains a binding contract not subject to
modification by the trial court. The record supports that
finding. Accordingly, the trial court did not commit error in
holding that it was without authority to alter the 1987
contract. See Hering, 33 Va. App. at 375, 533 S.E.2d at 635
(holding that court is not at liberty to rewrite a contract
simply because the contract may appear to reach an unfair result
(citing Kaufman v. Kaufman, 7 Va. App. 488, 501, 375 S.E.2d 374,
381 (1988))).
Because the parties' agreement only provided two
contingencies upon which support would cease, neither of which
had occurred at the time of the hearing, and because the
evidence supported the trial court's finding that the agreement
remained a valid contract precluding application of Code
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§ 20-109(A), the trial court did not err in refusing to take
evidence on the issue of cohabitation.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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Benton, J., dissenting.
For the reasons I expressed in Rubio v. Rubio, 36 Va. App.
248, 256-60, 549 S.E.2d 610, 614-16 (2001) (en banc) (Benton,
J., concurring and dissenting), I would reverse the order and
remand for a hearing on the issue of cohabitation and for
reconsideration of the husband's petition.
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