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 

SUZANNE M. K. RUBIO 

 OPINION BY 

v. Record No. 2596-99-1 JUDGE JERE M. H. WILLIS, JR. 

 JULY 24, 2001 

ERNESTO G. RUBIO 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Barry Randolph Koch (Inman & Strickler, 

P.L.C., on brief), for appellant. 

 Barry Kantor (Christie & Kantor, P.C., on 

brief), for appellee. 

 Amicus Curiae: The Virginia Bar Association 

Coalition on Family Law Legislation 

(Richard J. Byrd; Byrd Mische, P.C., on 

brief), for appellee. 

 By opinion dated August 1, 2000, a panel of this Court 

reversed the judgment of the trial court and ordered the 

petition herein dismissed. See Rubio v. Rubio, 33 Va. App. 74, 

531 S.E.2d 612 (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, but reverse the judgment of the trial court and remand 

the case for further proceedings. 
I. BACKGROUND

 Ernesto and Suzanne Rubio were married May 15, 1982. They 

separated and on June 18, 1993, entered into a Stipulation 

Agreement, modified on August 23, 1994, providing that Mr. Rubio 

would pay to Ms. Rubio as spousal support $600 per month until 

such time as she should remarry or either party should die. The 

agreement provided: 

 Q. INCORPORATION AND NON-MERGER

 If a temporary, interlocutory or final 

judgment, order or decree of divorce is 

rendered in any proceeding between the 

parties hereto, this Agreement shall be 

affirmed, ratified and incorporated in such 

judgment, order or decree, and be 

enforceable under the general equity powers 

of the Court. But notwithstanding such 

incorporation, this Agreement shall not be 

merged into such decree, but shall in all 

respects survive the same and be forever 

binding and conclusive upon the parties and 

their heirs, executors, administrators, and 

assigns. Nothing herein shall be construed 

to prevent the decree or judgment in any 

such action from incorporation in full. 

The parties were divorced by decree entered November 2, 1994, 

which provided, in pertinent part: 

 It is further ADJUDGED, ORDERED and 

DECREED that the Stipulation Agreement 

between the parties signed June 18, 1993 and 

the Modification dated August 23, 1994 be, 

and hereby are, found to be valid 

agreements, and are hereby ratified, 

affirmed and incorporated into and made a 

part of this Decree, and both parties shall 

comply with all terms and provisions of that 

Agreement and Modification. 

 - 2 - 
The decree did not state whether the Stipulation Agreement was 

merged. 

 On August 23, 1999, Mr. Rubio sought termination or 

modification of his spousal support obligation on the ground 

that Ms. Rubio had "been habitually cohabiting with another 

person in a relationship analogous to marriage for one year or 

more, commencing on or after July 1, 1997." See Code 

§ 20-109(A). Ms. Rubio acknowledged that she had been 

cohabiting in such a relationship since January 1997. 

 Code § 20-109(A) provides, in pertinent part: 

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. 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.1

In 1997, the legislature rewrote Code § 20-109(A) to insert the 

second sentence. See 1997 Va. Acts, ch. 241. 

 

 - 3 - 

1

 In 2000, the legislature substituted "shall" for "may 

decrease or" and substituted "be unconscionable" for "constitute 

a manifest injustice" in subsection (A) of Code § 20-109. See

2000 Va. Acts, ch. 218. 
 In 1998, the legislature "amended and reenacted" Code 

§ 20-109(A), adding the words "the amount or duration of any" to 

the first sentence. See 1998 Va. Acts, ch. 604. The Act 

specifically provided "[t]hat Section 20-109 of the Code of 

Virginia [is] . . . reenacted as follows." Id. It further 

provided "[t]hat the provisions of this Act shall apply only to 

suits for initial spousal support orders filed on or after July 

1, 1998, and suits for modification of spousal support orders 

arising from suits for initial support orders filed on or after 

July 1, 1998." Id.

The panel opinion held that by reenacting the statute, the 

Act embraced the statute in its entirety and that the quoted 

limitation upon the application of the Act was a limitation upon 

the application of the statute. See Rubio, 33 Va. App. at 

76-77, 531 S.E.2d at 613-14. Recognizing that the legislature 

did not intend that result,2 we vacate that holding. 

II. THE STIPULATION AGREEMENT

 In Hering v. Hering, 33 Va. App. 368, 373, 533 S.E.2d 631, 

633-34 (2000), we said that 

[i]f the court accepts the agreement, its 

decree may merely approve, ratify or affirm 

the agreement, in whole or in part, without 

incorporating its provisions into the decree 

or ordering payment or compliance with its 

terms. In that situation, the decree merely 

constitutes judicial approval of a private 

bilateral contract, and the provisions of 

the support agreement do not have the full 

 

 - 4 - 

2 See 2001 Va. Acts, ch. 720. 
force and effect of a court's decree and are 

not enforceable by the court's contempt 

powers. . . . 

Id. (citations omitted). Under those circumstances, the support 

obligation is enforceable as a contract. 

"'Where . . . the circumstances are such 

that the incorporation of a property 

settlement in a decree, with directions that 

the parties perform all its obligations, 

merges the contract in the decree, the party 

who desires enforcement must enforce the 

decree and not the agreement itself.'" 

Id. at 373, 533 S.E.2d at 634 (citations omitted). Under those 

circumstances, the support obligation is enforceable only as a 

term of the decree. 

 On the other hand, 

"'[w]here the circumstances are such that 

the agreement, although incorporated or 

approved in the decree, is not merged 

therein, the parties may enforce it by suing 

on the agreement rather than on the 

judgment.'" Where . . . the agreement was 

"incorporated but not merged" into the final 

decree, the agreement remained enforceable 

under either contract law or through the 

court's contempt power. 

Id. at 373-74, 533 S.E.2d at 634 (citations omitted). 

 In Hering, the parties entered into a marital settlement 

agreement dated February 28, 1995, requiring Mr. Hering to pay 

spousal support to Ms. Hering. The agreement provided that a 

court might "affirm, ratify and incorporate" it into a divorce 

decree but provided further "that this agreement shall survive 

such incorporation and shall not be merged into any such 

 - 5 - 
decree." The divorce decree, entered March 3, 1995, provided 

"that the Property Settlement Agreement . . . is [] ratified, 

affirmed and incorporated, but not merged, into and made a part 

of this Final Decree of Divorce . . . ." Mr. Hering proved that 

Ms. Hering had entered into a relationship of cohabitation 

analogous to marriage for more than one year commencing on or 

after July 1, 1997. He sought termination of his spousal 

support obligation pursuant to Code § 20-109(A). Noting that 

the provision of Code § 20-109(A) upon which Mr. Hering relied 

became effective July 1, 1997, we approved his concession that 

if his support obligation to Ms. Hering remained a vested 

contractual obligation, that obligation could not be impaired by 

subsequent legislation. Holding that Mr. Hering was not 

entitled to relief, we said: 

[T]he parties' contract remained 

enforceable. The parties expressly provided 

that their agreement was to be 

"incorporated, but not merged" into any 

final decree. While ordering the parties to 

comply with the provision of the agreement, 

the final decree also expressly provided 

that the agreement was not merged. [Mr. 

Hering's] argument glosses over the effect 

of the parties' express provision that the 

agreement not be merged into the final 

decree. We are not at liberty to ignore a 

contractual provision specifically included 

by the parties. 

 Our previous decisions and those of the 

Supreme Court of Virginia draw a distinction 

among those situations where an agreement is 

affirmed, where it is incorporated into a 

decree, or where, as here, the agreement is 

 - 6 - 
"affirmed, ratified, incorporated, but not 

merged" into the final decree. 

Id. at 372-73, 533 S.E.2d at 633. 

 Citing Doherty v. Doherty, 9 Va. App. 97, 383 S.E.2d 759 

(1989), Mr. Rubio argues that because the decree of divorce 

provided that the parties' agreements "are hereby ratified, 

affirmed and incorporated into and made a part of this Decree, 

and both parties shall comply [therewith]," the agreements 

merged into the decree and his support obligation is enforceable 

only as a provision of the decree. Such an obligation, he 

argues, is an ongoing matter of judicial determination, which 

does not enjoy immunity from abridgment of contract and is 

subject to subsequent legislation governing the determination of 

spousal support, specifically the 1997 amendment to Code 

§ 20-109(A). This argument is refuted by the parties' express 

agreement and by the terms of the 1994 divorce decree. 

 The parties specifically agreed and provided that their 

Stipulation Agreement would not merge into a decree of divorce. 

The decree, while containing no order of non-merger, does not 

order merger. Furthermore, the Stipulation Agreement contains 

an express provision for non-merger, a provision incorporated by 

reference into the decree. Thus, no merger occurred, and we do 

not address what effect, if any, merger would have imposed upon 

Mr. Rubio's support obligation. That obligation remains an 

enforceable contract, excluded from the operation of Code 

 - 7 - 
§ 20-109(A) and insulated by Code § 20-109(C) from judicial 

alteration. 

III. PUBLIC POLICY

 Finally, Mr. Rubio argues that the 1997 amendment to Code 

§ 20-109(A) bespeaks the public policy of the Commonwealth, 

placing cohabitation analogous to marriage, for purposes of 

spousal support, in the same posture as remarriage, requiring 

spousal support abatement in the absence of an express 

contractual provision for non-abatement. See Langley v. 

Johnson, 27 Va. App. 365, 499 S.E.2d 15 (1998). This argument 

depends upon giving retroactive effect to the 1997 amendment. 

Such an effect would accomplish a forbidden impairment of Ms. 

Rubio's contractual entitlement to support, see Hering, 33 Va. 

App. at 375, 533 S.E.2d at 634-35, and would violate Code 

§ 20-109(C) (inhibiting the power of the court to award or 

consider modification of a decree to the extent that spousal 

support and maintenance are provided for in an incorporated 

agreement of the parties). 

IV. CONCLUSION

 The judgment of the trial court is reversed, and this case 

is remanded to it for entry of a decree in accordance with the 

views herein stated. 

 Reversed and remanded.

 - 8 - 
Benton, J., concurring, in part, and dissenting, in part. 

 I concur in Part I of the opinion. For the reasons that 

follow, I dissent from Parts II and III. 

 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 

 - 9 - 
parties' agreement contained express language that spousal 

support will continue beyond the terminating event. It is 

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 did not err in ruling that spousal support 

should be reduced because of the wife's cohabitation. 

 Citing Hering v. Hering, 33 Va. App. 368, 533 S.E.2d 631 

(2000), the wife argues that applying the version of Code 

§ 20-109.1, which was in effect when the husband's motion was 

filed but not in effect when the contract was formed, is a 

retroactive application of the statute that impairs her right to 

contract. The majority so holds. I disagree. 

 "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 

 - 10 - 
§§ 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 

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 

 - 11 - 
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 

"[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 

 - 12 - 
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 

"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 Hering decision 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 

 - 13 - 
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 affirm 

the judgment reducing the husband's spousal support in light of 

Code § 20-109(A). 

 - 14 -