                     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


     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.
     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.




                              - 5 -
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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