                     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     In an unpublished opinion, a divided panel of this Court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




                               - 2 -
           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.


                                - 3 -
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

                                - 4 -
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

                                 - 5 -
          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

                              - 6 -
"[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

                                - 7 -
"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.

                                 - 8 -
