James Van Shoaf, Jr. v. Joyce Hobson Shoaf

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
and Agee
Argued at Richmond, Virginia
JAMES VAN SHOAF, JR.
MEMORANDUM OPINION * BY
v. Record No. 2010-99-2 JUDGE JERE M. H. WILLIS, JR.
JULY 24, 2001
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.
In an unpublished opinion, a divided panel of this Court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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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
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evidence that termination of such support
would constitute a manifest injustice.
See 1997 Va. Acts, ch. 241. 1
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.
1
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.
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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
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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
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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
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"[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
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"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.
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