COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

F. SHRIVER HERING 

 OPINION BY 

v. Record No. 1280-99-4 JUDGE CHARLES H. DUFF 

 SEPTEMBER 5, 2000 

PHYLLIS E. HERING 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Michael A. Ward (Gannon, Cottrell & Ward, 

P.C., on briefs), for appellant. 

 David E. Roop, Jr. (Condo & Masterman, P.C., 

on brief), for appellee. 

 F. Shriver Hering (husband) filed a petition to terminate 

spousal support and maintenance, alleging that Phyllis Hering 

(wife) was habitually cohabiting with a man in a relationship 

analogous to marriage for a period of more than one year 

commencing on or after July 1, 1997. Husband contends that, 

because his payments to wife were spousal support, not a 

contractual obligation, these payments were amenable to 

modification by subsequent legislative enactments and, 

therefore, were terminable under the amended provisions of Code 

§ 20-109(A). For the reasons set out below, we affirm the trial 

court's decision that application of the amendments to Code 

§ 20-109(A) concerning termination of spousal support under 
circumstances of cohabitation would amount to an 

unconstitutional impairment of contract. 

Background

 The parties entered into a marital settlement agreement 

(agreement), dated February 28, 1995. In pertinent part, the 

agreement provided: 

SPOUSAL SUPPORT 

6. a. The Husband shall pay to the Wife, 

for her support and maintenance, the sum of 

$1,500.00 per month, beginning March 1, 

1995, and continuing on the first day of 

each month thereafter through February 1996, 

the remarriage of the Wife or the death of 

either party, whichever is earlier. 

 b. The Husband shall pay to the Wife, 

for her support and maintenance, the sum of 

$900.00 per month, beginning March 1, 1996, 

and continuing on the first day of each 

month thereafter the remarriage of the Wife 

or the death of either party, whichever is 

earlier. 

 c. The spousal support payments 

provided for in the preceding subparagraph 

shall be modifiable by the Circuit Court of 

Fairfax County, or other court of competent 

jurisdiction, upon the petition of either 

party, subject to the requisite showing of a 

material change in circumstances. 

The agreement also provided for incorporation of the agreement 

into a decree of divorce, as follows: 

INCORPORATION IN DECREE OF DIVORCE 

29. This Agreement shall not be construed 

to bar or prevent either party from suing 

for absolute or limited divorce. If any 

action for divorce is instituted by either 

party, any Court in which such action might 

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be filed shall affirm, ratify and 

incorporate this Agreement in its decree 

dissolving the marriage or in any decree of 

divorce from bed and board; provided, 

however, that this agreement shall survive 

such incorporation and shall not be merged 

into any such decree. 

The parties presented the agreement to the trial court. The 

final decree of divorce entered March 3, 1995 provided: 

On or about February 28, 1995, the parties 

entered into a Property and Support 

Settlement Agreement, which settles all 

matters pertaining to support and 

distribution of property. It is the desire 

and intent of the parties that the Property 

and Support Settlement Agreement and all the 

terms and provisions contained therein be 

incorporated, but not merged, into this 

Final Decree of Divorce . . . . 

ORDERED, that the Property Settlement 

Agreement dated February 28, 1995, be, and 

the same hereby is, ratified, affirmed and 

incorporated, but not merged, into and made 

a part of this Final Decree of Divorce, in 

accordance with §20-109 and §20-109.1 of the 

1950 Code of Virginia, as amended; and the 

parties are ordered to comply with the 

provisions contained therein . . . . 

 By petition filed January 20, 1999, husband sought to 

terminate his payments to wife pursuant to the newly amended 

provisions of Code § 20-109(A). Husband also alleged that 

wife's actions constituted a material change of circumstances 

warranting termination of wife's spousal support. Wife filed a 

demurrer to husband's petition, arguing that application of the 

amended provision amounted to an unconstitutional infringement 

of the parties' contract. The trial court sustained wife's 

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demurrer, ruling that application of Code § 20-109(A) to the 

parties' contract would constitute an unconstitutional 

impairment of contract. Husband appealed. The court also 

granted husband leave to file an amended petition to develop his 

allegation of a material change of circumstances. No such 

petition was filed, and the only issue before us is the court's 

ruling re the applicability of Code § 20-109(A). 

 Because the trial court sustained wife's demurrer to 

husband's petition, we accept as true the facts as alleged by 

husband and all reasonable inferences drawn from those facts. 

See Norris v. Mitchell, 255 Va. 235, 237, 495 S.E.2d 809, 810 

(1998). 

Code § 20-109(A)

 Effective July 1, 1997, Code § 20-109(A) was substantially 

amended to read as follows: 

§ 20-109. Changing maintenance and support 

for a spouse; effect of stipulations as to 

maintenance and support for a spouse; 

cessation upon cohabitation, remarriage or 

death. 

A. Upon petition of either party the court 

may increase, decrease, or terminate 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) 

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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. 

Subsequent amendments not relevant to this appeal were effective 

July 1, 1998. 

Incorporation of Agreement

 Husband contends that, under Shoosmith v. Scott, 217 Va. 

290, 227 S.E.2d 729 (1976) (Shoosmith I), and Shoosmith v. 

Scott, 217 Va. 789, 232 S.E.2d 787 (1977) (Shoosmith II), his 

payments to wife were spousal support, not payments pursuant to 

the parties' contract. By agreeing to incorporate the property 

and support agreement into the final decree, wife elected to 

receive spousal support instead of payments under the contract 

in lieu of spousal support. By so doing, husband's argument 

continues, wife received the benefit of enforcement through the 

court's power of contempt in exchange for her right to enforce 

the contract. Husband concedes that, if the payments to wife 

remain a vested contractual obligation, then under Shoosmith I

and Shoosmith II, that obligation may not be impaired by the 

subsequent legislative amendments to Code § 20-109(A). 

 We find that the 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 provisions of the 

agreement, the final decree also expressly provided that the 

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agreement was not merged. Husband'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 situations where an agreement 

is affirmed, where it is incorporated into a decree, or where, 

as here, the agreement is "affirmed, ratified, incorporated, but 

not merged" into the final decree. In the context of an 

agreement concerning child support, we noted 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. See Shoosmith v. Scott, 217 Va. 789, 

791-93, 232 S.E.2d 787, 788-89 (1977). In 

that situation, the decree merely 

constitutes judicial approval of a private 

bilateral contract, see Rodriguez [v.

Rodriguez], 1 Va. App. [87,] 90, 334 S.E.2d 

[595,] 597 [(1985)] (citing Shoosmith v. 

Scott (citation omitted)), and the 

provisions of the support agreement do not 

have the full force and effect of a court's 

decree and are not enforceable by the 

court's contempt powers. See Shoosmith, 217 

Va. at 792, 232 S.E.2d at 789. The court 

also has the option to incorporate by 

reference the child support provisions, in 

whole or in part, as part of the final 

decree, Code § 20-109.1, and retain 

jurisdiction to enforce compliance through 

its contempt powers. 

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Fry v. Schwarting, 4 Va. App. 173, 178, 355 S.E.2d 342, 345 

(1987). "'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.'" 

Doherty v. Doherty, 9 Va. App. 97, 99-100, 383 S.E.2d 759, 760 

(1989) (quoting 24 Am. Jur. 2d Divorce and Separation § 858 

(1983)). In contrast, "'[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.'" Id. at 99-100, 383 

S.E.2d at 760 (quoting 24 Am. Jur. 2d Divorce and Separation

§ 858)). Where, as here, 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. See id. at 99, 383 S.E.2d at 760. 

Code § 20-109 prohibits the trial judge from 

entering a decree in a divorce suit except 

in accordance with a property settlement 

agreement signed by the parties. Since the 

agreement provides that if it is affirmed, 

ratified, and incorporated in the final 

decree it shall not be merged in the final 

decree, the final order must be read to give 

effect to that agreement. 

Spagnolo v. Spagnolo, 20 Va. App. 736, 745 n.1, 460 S.E.2d 616, 

620 n.1 (1995). Therefore, the parties' agreement, which was 

affirmed and incorporated, but not merged, into the final 

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decree, remained a separate, enforceable, contractual 

obligation. 

 While husband also argues that the 1997 amendments to Code 

§ 20-109(A) should apply to this case, we find that argument 

unpersuasive. Legislative amendments affecting substantive 

rights are generally presumed to apply prospectively, unless a 

contrary legislative intent is evident. See Shiflet v. Eller, 

228 Va. 115, 319 S.E.2d 750 (1984). "[R]etroactive effect will 

be given to a statute only when legislative intent that a 

statute be so applied is stated in clear, explicit, and 

unequivocal terms; otherwise, a statute will be applied 

prospectively only and applied only to cases that arise 

thereafter." Foster v. Smithfield Packing Co., 10 Va. App. 144, 

147, 390 S.E.2d 511, 513 (1990). The legislation here, to the 

extent it includes an effective date, refers to a period 

beginning on or after July 1, 1997, a date well after the 

parties executed their agreement and the trial court entered the 

final decree of divorce. We find no merit in husband's argument 

that additional amendments made in 1998 demonstrate the 

legislature's intent regarding the 1997 amendments. 

 In addition, 

[o]ne of the basic rules of construction of 

contracts is that the law in force at the 

date of making a contract determines the 

rights of the parties under the contract. 

The law effective when the contract is made 

is as much a part of the contract as if 

incorporated therein. 

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Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125 (1974) 

(citations omitted) (legislative change reducing age of 

emancipation did not apply to parties' contractual agreement to 

pay child support until age twenty-one or "otherwise 

emancipated"). We find no reason to vary from these well 

established principles. 

 In sum, we agree with the decision of the circuit court 

that the application of the amended language of Code § 20-109(A) 

to the circumstances of these parties would be an 

unconstitutional impairment of contract. At the time the 

parties entered into their agreement, they provided only for 

termination of spousal support in the event wife remarried or 

either party died. They included no provision terminating 

spousal support based upon wife's cohabitation. "A court is not 

at liberty to rewrite a contract simply because the contract may 

appear to reach an unfair result." Kaufman v. Kaufman, 7 Va. 

App. 488, 501, 375 S.E.2d 374, 381 (1988). This is not an 

instance where the parties failed to expressly address in their 

agreement options existing under current legislation. Cf.

MacNelly v. MacNelly, 17 Va. App. 427, 437 S.E.2d 582 (1993) 

(agreement that was silent as to the effect of remarriage failed 

to abrogate effect of Code § 20-109 terminating spousal support 

upon death or remarriage); Radford v. Radford, 16 Va. App. 812, 

433 S.E.2d 35 (1993) (agreement that was silent as to the effect 

of either death or remarriage failed to abrogate statutory 

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language of Code § 20-109 terminating spousal support upon death 

or remarriage). 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed. 

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