                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, McCullough and O’Brien
            Argued at Fredericksburg, Virginia
PUBLISHED




            PETER WEIDLEIN
                                                                                OPINION BY
            v.      Record No. 2145-14-4                               JUDGE STEPHEN R. McCULLOUGH
                                                                              OCTOBER 6, 2015
            MIMI C. WEIDLEIN


                                  FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                             Lorraine Nordlund, Judge

                            James Ray Cottrell (John K. Cottrell; Cottrell Fletcher Schinstock
                            Bartol & Cottrell, on briefs), for appellant.

                            David N. Webster II (The Webster Law Firm, on brief), for appellee.


                    This appeal arises from a post-divorce rule to show cause brought by Mimi C. Weidlein

            against her former husband, Peter Weidlein, for his failure to pay spousal support arrearages in

            excess of $400,000. Husband first assigns error to the trial court’s entry of judgment against him

            “for arrearages for the time period after the trial court had found that the former wife had met the

            terminating condition for her spousal support entitlement under the terms of the marital

            agreement.” His second assignment of error contends that “alternatively, the trial court erred in

            determining that the parties’ valid oral agreement was not enforceable as a defense to the rule to

            show cause and to any arrearage claim.” For the reasons noted below, we reverse the judgment

            of the trial court.

                                                     BACKGROUND

                    On January 2, 1990, the parties signed a document titled “Marital Agreement.” The

            relevant portions of the agreement are as follows:
               B. Limitation and Release of Support, Marital, and Property
               Rights by Mimi:

               In the event the parties shall cease residing together due to any
               reason other than death, Peter shall pay to Mimi as and for her
               support and maintenance the sum of two thousand five hundred
               dollars ($2,500) per month commencing with the first day of the
               first month following the separation and continuing until (a) the
               death of either party; (b) the remarriage of Mimi; (c) the
               cohabitation of Mimi with another man i.e. living with another
               man at the same place of residence for a week or more, whichever
               event shall first occur. Upon the happening of any of the foregoing
               events all such payments shall forever cease.

                      *       *       *      *         *    *         *

               No amendment to or change in this agreement shall be effective
               unless made in a separate written instrument executed by the
               parties hereto, with the same formalities and dignities as this
               agreement.

       The parties separated with the intent to terminate the marriage on April 16, 1993. On

September 22, 1994, the trial court entered a stipulation and settlement order which incorporated

the marital agreement, pursuant to Code § 20-109.1. The court entered a final decree of divorce

on May 5, 1995, which also incorporated the terms of the marital agreement. The entirety of

paragraph (B) was copied, verbatim, into the divorce decree itself.

       On April 17, 2014, wife filed a petition for a rule to show cause for husband’s alleged

failure to pay spousal support. On July 22, 2014, husband filed a motion to terminate past and

future spousal support due to wife’s cohabitation with a man, which, if true, would terminate

husband’s spousal support obligation.

       At a hearing held on July 3, 2014, husband testified that he learned in 2002 that wife was

cohabiting with Gilbert Moreno. He directed his attorney to draft a cover letter and order

concerning the termination of spousal support and arranged for the letter to be given to wife.

Husband testified that wife acknowledged the cohabitation, and agreed that in exchange for six

months of spousal support, she would not object to his termination of spousal support. Husband
                                                 -2-
testified that although the parties had an oral agreement, they did not sign the document or

appear in court because they did not want to incur the costs of litigation. Accordingly, he made

his final support payment in March, 2003.

       Wife denied that she ever cohabited with Moreno for more than a week although each of

the children testified that wife and Moreno did cohabit for more than a week on at least one

occasion. She said she never received any letter or draft order from husband concerning

termination of spousal support. She also denied making an oral agreement in which she agreed

to termination of her spousal support in exchange for six more months of support. The parties’

two sons, however, testified that wife had in fact cohabited with Moreno for a period in excess of

one week and that she did so more than once. The court made a specific finding of fact that

wife’s testimony was not credible and resolved the issue of the existence of an oral agreement in

favor of husband. The court also found that wife resided with Moreno under circumstances

which would warrant termination of husband’s spousal support obligation.

       The court held, however, that the cohabitation provision of the decree was not

self-executing and therefore, the spousal support obligation could not be modified without a

court order. The court also held that the oral agreement between the parties for six additional

months of support and subsequent termination of support was unenforceable because it was an

oral agreement to modify, and the terms of the parties’ marital agreement required any

amendment to be in writing. Therefore, the court ordered husband to pay the arrearage in the

amount of $437,050.60 and granted husband’s motion to terminate any future support obligation.

                                            ANALYSIS

       “On appeal, the trial court’s findings of fact are accorded great deference and its

judgment will not be set aside unless plainly wrong or without evidence to support it.” Stroud v.

Stroud, 54 Va. App. 231, 236, 677 S.E.2d 629, 631 (2009). The trial court’s application of law

                                               -3-
to those facts is reviewed de novo. Tuttle v. Webb, 284 Va. 319, 324, 731 S.E.2d 909, 911

(2012).

                 I. THE AGREEMENT MUST BE ENFORCED ACCORDING TO ITS PLAIN LANGUAGE.

          Husband contends the trial court erred in awarding wife support arrearages, which

accrued after June 2003, 1 because the court found that husband proved the occurrence of a

terminating condition for wife’s spousal support entitlement under the terms of the marital

agreement. He argues that the trial court erred in finding that the cohabitation provision of the

agreement was not self-executing and that husband was required to obtain a court order before

terminating spousal support payments.

          This case calls upon us to harmonize two statutes. First, Code § 20-109(A) provides as a

general proposition that

                     Upon petition of either party the court may increase, decrease,
                 or terminate the amount or duration of any spousal support and
                 maintenance that may thereafter accrue, whether previously or
                 hereafter awarded, as the circumstances may make proper.

In Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993), the Supreme Court held that

“Code § 20-109 provides that the divorce court may modify or terminate spousal support that

‘may thereafter accrue,’ but makes no provision for modifying an award for support previously

accrued.” Moreover, the Court in Reid noted that there was no statutory authority to order

restitution of past support. Id. at 415, 429 S.E.2d at 211. Finally, we have held in a number of

cases that “the moment each installment falls due and unpaid it becomes a vested property right

and is immune from modification.” Bennett v. Commonwealth Dep’t of Soc. Servs., 15 Va. App.

135, 144, 422 S.E.2d 458, 463 (1992). However, neither this Court nor the Supreme Court has



          1
         Although husband testified that he ceased making payments in March of 2003, the trial
court found that husband ceased making payments in June of 2003.

                                                 -4-
addressed whether parties to a divorce can, by agreement, modify the default rules for accrual and

vesting of monthly support.

       Another statute, Code § 20-109(C), provides that once parties to divorce litigation have

reached an agreement on (among other things) spousal support, the trial court must honor the

agreement. “Support agreements that are voluntarily made by the parties are subject to the same

rules of construction applicable to contracts generally.” Goldin v. Goldin, 34 Va. App. 95, 107,

538 S.E.2d 326, 332 (2000). Where, as here, an agreement’s terms are unambiguous, a court

must “adhere to the plain meaning of [the] stated terms.” Southerland v. Estate of Southerland,

249 Va. 584, 588, 457 S.E.2d 375, 378 (1995).

       The meaning of the agreement, as relevant here, is plain. First, husband was to pay

$2,500 in monthly support. Second, “[u]pon the happening” of certain contingencies, including

wife cohabiting with another man for a week or more, “such payments shall forever cease.”

Consequently, husband’s obligations ceased when wife cohabited with another man for one week

or more.

       The default rule, which specifies that monthly spousal support payments accrue and

become vested when they are due and unpaid, operates only in the absence of a statute that

modifies this default rule. See Richardson v. Moore, 217 Va. 422, 424, 229 S.E.2d 864, 866

(1976) (per curiam) (“‘[in] the absence of statute, payments exacted by the original decree of

divorce become vested as they accrue and the court is without authority to make any change as to

past due installments’” (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d

663, 666 (1965))). Here, there is a statute, Code § 20-109(C), which provides that the agreement

of the parties controls. When there is no agreement, the order of the court mandating monthly

payments controls until modified by the court. Where there is such an agreement, it must be




                                               -5-
enforced according to its plain terms. 2 The specific provisions of Code § 20-109(C) control over

the general provisions of Code § 20-109(A). “The rule is that ‘when one statute speaks to a

subject in a general way and another deals with a part of the same subject in a more specific

manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.’”

Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618 (1992) (quoting Virginia

Nat’l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)). 3 When a trial court honors

the parties’ agreement, as it must, such a judgment does not retroactively modify a support

award, in contravention of Code § 20-112. Instead, it enforces a pre-existing award according to

its plain terms. The same order that compelled husband to pay $2,500 in monthly support

provided that these payments would forever cease upon the happening of certain contingencies.

As agreed and incorporated into the order, the monthly spousal support obligation never accrued

– and, therefore, never vested – after the point when wife cohabited with another man for a week

or more. 4


       2
          The dissent cites a number of cases for the proposition that “each installment [of
spousal support] falls due and unpaid it becomes a vested property right and is immune from
modification.” Bennett, 15 Va. App. at 144, 422 S.E.2d at 463. See also Goodpasture v.
Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d 845, 847 (1988); Smith v. Smith, 4 Va. App. 148,
152, 354 S.E.2d 816, 818-19 (1987). Those cases did not involve an agreement between the
parties that specified when spousal support vested. Therefore, this line of authority does not
supply the rule of decision in situations where the parties have reached an agreement.
       3
         Code § 20-109(D) further evinces a legislative intent to permit parties to modify by
agreement the default rules governing spousal support. That provision specifies that “spousal
support and maintenance shall terminate upon the death of either party or remarriage of the
spouse receiving support” but also specifies that these rules do not apply if the parties have
“otherwise provided by stipulation or contract.”
       4
         Although not binding, a recent unpublished opinion of this Court, Miller v. Green, No.
1993-14-3, 2015 Va. App. LEXIS 201 (Va. Ct. App. June 23, 2015), is distinguishable because
the terms of the agreement in that case were materially different. Neither this case nor Miller
involved a self-executing clause terminating support. Therefore, both this case and Miller
required a judicial determination that the cohabitation had occurred for the requisite period of
time. In the present case, the parties’ agreement divested wife of any claim to spousal support
“upon” the happening of wife’s cohabitation with a man for a period of one week or more.
                                               -6-
       This does not mean that persons who have been ordered to pay monthly support may

unilaterally cease payment based on a belief that the former spouse has forfeited the right to

support. Our case law is clear that, unless the relevant provision is self-executing, a spouse who

believes that the support is no longer due must obtain a judicial declaration that the monthly

support is, in fact, no longer due under the incorporated agreement. Stroud, 54 Va. App. at

238-39, 677 S.E.2d at 632. The cohabitation provision at issue here was not self-executing

because it was not an event that could be empirically determined. Id. As this Court previously

noted, “a provision can be self-executing only when the triggering event is empirically

determined, such as a date certain, reaching a specific age, or death.” Id. at 238, 677 S.E.2d at

632. In Stroud, a judicial determination was required to establish whether the wife was

cohabiting in a situation analogous to marriage. Id. at 234-35, 677 S.E.2d at 630-31.

       When the contingency at issue is not self-executing, the paying spouse who unilaterally

ceases payment risks contempt and, if the evidence fails to establish the contingency, will owe

past due installments and interest. The agreement here was not self-executing. Thus, the payor’s

self-interest as well as the need for an orderly process require judicial resolution of such matters



Therefore, when the trial court found that such cohabitation had occurred, the court was required
to honor the agreement and hold that payments ceased to accrue (and, therefore, did not vest)
from that date onward. Since husband had not paid them, he did not owe them. Had he paid
them, he would have been entitled to a refund because that was the parties’ agreement. In
contrast, the agreement in Miller provided that support would cease “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 . . . .” Id. at *2-3. The terms “clear
and convincing evidence” evince an intent by the parties to provide proof in a legal proceeding.
Thus, the triggering event in Miller for purposes of termination of the spousal support was not
the happening of cohabitation but, instead, the proof of cohabitation by clear and convincing
evidence in court. In other words, under the agreement in Miller, the obligation to make
payments ceased prospectively only after the cohabitation had been established in court by clear
and convincing evidence (or upon the filing of the motion to terminate spousal support, pursuant
to Code §§ 20-109 and 20-112). Because the agreement did not contemplate that the payments
would cease accruing the moment the cohabitation had occurred, as the agreement does in this
case, the trial court in Miller lacked the statutory authority under Code § 20-109(C) to terminate
the spousal support retroactively to that time.
                                                  -7-
rather than unilateral action. However, the need to obtain a judicial declaration does not change

the fact that the judicial declaration that is made must be in accord with the parties’ agreement.

       Here, husband proved that wife had cohabited with another man for a week or more.

Under the incorporated agreement, his support obligation ceased upon the happening of this

cohabitation, and the payments wife claims husband owed after that point never vested.

Accordingly, we hold that the trial court erred in ordering him to pay spousal support and interest

that he, under the agreement, never owed.

                               II. STROUD V. STROUD DOES NOT CONTROL.

       Our decision in Stroud, 54 Va. App. 231, 677 S.E.2d 629, does not require a contrary

conclusion. The issue before the Court in Stroud was whether the trial court erred in denying

husband attorney’s fees and costs under the terms of the former spouses’ agreement. See id. at

232-33, 677 S.E.2d at 629-30. Their agreement, which had been incorporated into the divorce

decree, provided that husband’s monthly support obligation would cease if wife “‘cohabit[ed]

with any person to whom she is not related by blood or marriage in a situation analogous to

marriage for a period of thirty (30) or more continuous days.’” Id. at 233, 677 S.E.2d at 630.

Husband unilaterally ceased paying spousal support when he discovered that wife had, in fact,

cohabited with another individual for the specified period. Id. at 233-34, 677 S.E.2d at 630.

Wife then petitioned for enforcement of the court order. Id. at 234, 677 S.E.2d at 630.

       The parties’ agreement further provided as follows:

               DEFAULT BY PARTY. Should either [former spouse] fail to
               abide by the terms of this Agreement, the defaulting party will
               indemnify the other for all reasonable expenses and costs,
               including attorney’s fees, incurred in successfully enforcing this
               Agreement.

Id. at 233, 677 S.E.2d at 630. Husband was able to prove that wife had cohabited with another

individual as specified in the agreement and, therefore, ultimately succeeded in defending against

                                                -8-
wife’s petition. Id. at 235, 677 S.E.2d at 630-31. He then sought to recover his attorney’s fees

and costs. Id. at 235, 677 S.E.2d at 631.

       The key question, under the agreement, was whether wife was a “defaulting party.” If so,

husband was entitled to attorney’s fees. See id. at 239, 677 S.E.2d at 632-33. If not, she owed

husband no such fees. We held that the agreement’s cohabitation language was not self-executing

and, therefore, that husband was “not entitled to unilaterally terminate support payments without

seeking entry of a proper court order.” Id. at 238-39, 677 S.E.2d at 632. We further explained,

               Once husband independently withheld support payments, wife had
               no choice but to seek a judicial remedy and have the trial court
               determine if she was cohabitating in a situation analogous to
               marriage. Thus, we find that wife’s enforcement of the agreement
               was not a default, but a proper means of seeking recourse in what
               she believed was non-compliance with the PSA.

Id. at 239, 677 S.E.2d at 632-33. Because wife was not in “default” when she sought a judicial

declaration of her rights under the agreement, she did not owe any attorney’s fees. Id. at 239,

677 S.E.2d at 633.

       Stroud decided a narrow point of law in connection with a particular agreement

governing attorney’s fees, namely, that “husband was not entitled to attorney’s fees because wife

was not in default in the performance of any provision of the agreement.” Id. In Stroud, the

Court did not address (and was not asked to address) the question now before us: Does a former

husband continue to owe monthly spousal support past the point of a particular contingency’s

event, which, under the agreement, terminated the support obligation?

       In sum, where the parties have reached an agreement that specifies when spousal support

ceases to accrue, courts must enforce the agreement according to its plain terms. If an agreement

that is not-self executing has been incorporated in an order of the court, parties must seek

enforcement through the court. Where the payor spouse has provided monthly support payments

that were not due under the agreement, the payor spouse is entitled to restitution of any excess
                                                -9-
payments. 5 This conclusion flows from the parties’ agreement and the mandate Code

§ 20-109(C). 6

                                        CONCLUSION

       For the foregoing reasons, we reverse the judgment below and enter final judgment in

favor of the husband.

                                                                                       Reversed.




       5
          Here, husband ceased making his monthly payments based on his belief that wife would
honor her oral agreement to terminate spousal support. Accordingly, there is no need for the
court to order restitution.
       6
        In light of our holding on husband’s first assignment of error, we need not reach his
second assignment of error.
                                             - 10 -
O’Brien, J., dissenting.

       I agree with the majority that the terminating provision of the agreement in this case was

not self-executing because a judicial determination was required to establish whether the

terminating event occurred. I respectfully dissent from the majority’s holding, however, because

the trial court did not have the authority to retroactively terminate the already-vested and accrued

spousal support obligation. Accordingly, I would affirm the trial court’s ruling.

       The majority acknowledges that Code § 20-109(A) allows a court to modify or terminate

spousal support “that may thereafter accrue.” (Emphasis added). Code § 20-112 adds that a

support order may be modified or terminated “only from the date that notice of [a] petition [for

modification or termination] has been given to the responding party.” There is no authority that

allows a court to retroactively modify or terminate spousal support. In fact, the Supreme Court

repeatedly has held to the contrary. See Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211

(1993); Cofer v. Cofer, 205 Va. 834, 838, 140 S.E.2d 663, 666 (1965) (“[I]n the absence of

statute, payments exacted by the original decree of divorce become vested as they accrue and the

court is without authority to make any change as to past due installments.”), rev’d on other

grounds by Singh v. Mooney, 261 Va. 48, 541 S.E.2d 549 (2001). 7




       7
         The majority relies on the following language from Cofer as a method to apply Code
§ 20-109(C) as a restraint from affirming the trial court: “in the absence of statute, payments
exacted by the original decree of divorce become vested as they accrue and the court is without
authority to make any change as to past due installments.” Cofer, 205 Va. at 838, 140 S.E.2d at
666 (emphasis added). However, in Cofer, the Supreme Court found that there was no statutory
authority for the trial court to retroactively terminate a support obligation. The Court discussed
the application of Code § 20-108 and held that “our statute (Code § 20-108, supra) does not
authorize the court to relieve the delinquent husband of the payment of accrued installments for
the support of his children due under the provisions of a former decree or order.” Id. at 839, 140
S.E.2d at 667. In the present case, just as in Cofer, no statute gives the trial court license to
terminate or modify support payments that already have vested.
                                                  - 11 -
       Unpaid spousal support is a vested property right. “It is . . . well established that the

moment each installment falls due and unpaid it becomes a vested property right and is immune

from modification.” Bennett v. Commonwealth Dep’t of Soc. Servs., 15 Va. App. 135, 144, 422

S.E.2d 458, 463 (1992); see also Goodpasture v. Goodpasture, 7 Va. App. 55, 58, 371 S.E.2d

845, 847 (1988) (“Parties cannot contractually modify the terms of a support order without the

court’s approval. Nor does a party’s passive acquiescence in nonpayment of support operate to

bar that party from later seeking support arrearages. Should circumstances change requiring

alteration in the amount of support, a party’s remedy is to apply to the court for relief.”

(emphasis added)); Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818-19 (1987)

(“[C]ourt-ordered [spousal] support becomes vested when it accrues and the courts are without

authority to make any change with regard to arrearages.”).

       The majority asserts, however, that Code § 20-109(C) allows a court to retroactively

terminate spousal support payments even when a terminating provision is not self-executing,

stating that this statute requires the trial court to “honor the agreement” between the parties.

However, this is a strained reading of the statute. Code § 20-109(C) only allows a court to

incorporate and enforce a property settlement agreement as part of a final decree. Nothing in

Code § 20-109(C) permits a party to unilaterally cease making spousal support payments, if the

terminating event is not self-executing. Likewise, nothing in Code § 20-109(C) grants the court

the authority to make any change to past due installments. Unless an agreement incorporated

into a decree involves a child or spousal support provision that is self-executing, a party who

wishes to modify or terminate a support obligation must apply to the court for modification. We

have held that “[i]t is the obligation of the divorced husband to pay the specified amounts

according to the terms of the decree . . . . [When circumstances change, to] warrant a change in

the terms of the decree . . . [the husband’s] remedy is to apply to the court for such relief.”


                                                - 12 -
Sanford v. Sanford, 19 Va. App. 241, 246, 450 S.E.2d 185, 188 (1994) (alterations in original)

(quoting Newton v. Newton, 202 Va. 515, 519, 118 S.E.2d 656, 659 (1961)).

       The majority agrees that the cohabitation terminating provision at issue in this agreement

was not self-executing. In fact, a contested hearing was held and the court made certain findings

regarding cohabitation. As this Court noted, “[A] provision can be self-executing only when the

triggering event is empirically determined, such as a date certain, reaching a specific age, or

death.” Stroud v. Stroud, 54 Va. App. 231, 238, 677 S.E.2d 629, 632 (2009).

       The majority attempts to distinguish Stroud because that case addressed the issue of

payment of attorney’s fees. However, the awarding of attorney’s fees turned on precisely the

same issue that we address here: “[D]oes a former husband continue to owe monthly spousal

support past the point of a particular contingency’s event, which, under the agreement,

terminated the support obligation?” Supra at 9. In Stroud, the Court had to answer that question

in order to determine whether wife “defaulted” under the terms of the marital agreement,

authorizing husband to seek attorney’s fees. A judicial determination was required to establish

whether the wife violated one of the terms of the agreement. Id. at 234-35, 677 S.E.2d at 630-31.

Therefore, the “husband was not entitled to unilaterally terminate support payments without

seeking entry of a proper court order.” Id. at 238-39, 677 S.E.2d at 632. We reached the same

conclusion in the recent unpublished opinion of Miller v. Green, No. 1993-14-3, 2015 Va. App

LEXIS 201 (Va. Ct. App. June 23, 2015), which, like the case before us, contained a termination

clause that was not self-executing.

       Unfortunately, when a party ignores the requirement for a judicial determination of a

non-self-executing termination clause, and proceeds to unilaterally terminate support, the result

may appear inequitable. The law, however, clearly mandates such a result. Accordingly, I

would affirm the ruling of the trial court and must respectfully dissent from the majority opinion.


                                               - 13 -
