COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

LAWRENCE W. LANGLEY 

 OPINION BY 

v. Record No. 1390-97-3 JUDGE JAMES W. BENTON, JR. 

 MAY 12, 1998 

ANNE P. JOHNSON 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 H. Gregory Campbell, Jr., for appellant. 

 Margaret E. Stone (Edwin C. Stone; Stone, 

Harrison, Turk & Showalter, on brief), for 

appellee. 

 Lawrence W. Langley appeals from the trial judge's ruling 

that payments made under a settlement agreement to his former 

wife, Anne P. Johnson, were spousal support payments that 

survived the wife's remarriage. We hold that the provisions of 

Code §§ 20-109 and 20-109.1 acted to terminate the husband's 

spousal support obligation upon the wife's remarriage, and we 

reverse the trial judge's order. 

 I. 

 On August 26, 1991, the parties were divorced by a decree 

that affirmed, ratified, and incorporated by reference the 

parties' settlement agreement. Under the heading "Spousal 

Support and Separate Maintenance," Section 3.02 of the agreement 

provides that the husband "agrees to pay [the wife] an amount 

equal to $275.00 cash, per week, until her death." The wife 

remarried on December 29, 1991. The husband continued his 
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payments for almost four years after the wife's remarriage. When 

he ceased making his payments in 1995, the wife filed a motion 

for judgment seeking enforcement of the payment obligation. 

 The trial judge found that the language in the separation 

agreement was "plain, simple, clear and unambiguous" and 

obligated the husband to pay spousal support until the wife's 

death. Noting that "[r]emarriage can only occur prior to death," 

the trial judge ruled that "there is no speculation as to the 

termination of support" and that Code § 20-109.1 "does not apply 

to the agreement." The husband appeals from the trial judge's 

ruling that the wife's remarriage did not terminate the husband's 

spousal support obligation. 

 II. 

 We first address the wife's contention that the weekly 

payments were not spousal support but, rather, were in the nature 

of a property distribution. The wife argues that although the 

husband's obligation to make weekly payments is contained under 

the heading "Spousal Support and Maintenance," the agreement 

provides that "[p]aragraph titles or headings . . . are inserted 

as a matter of convenience only and for reference and in no way 

define or describe the scope of this Agreement or any provision 

thereof." Because no other language in the agreement describes 

the weekly payments as spousal support, she argues that the 

payments are not "spousal support." Thus, she argues Code 

§§ 20-109 and 20-109.1 do not apply. 
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 "Property settlement agreements are contracts; therefore, we 

must apply the same rules of interpretation applicable to 

contracts generally." Tiffany v. Tiffany, 1 Va. App. 11, 15, 332 

S.E.2d 796, 799 (1985). Where the agreement is plain and 

unambiguous in its terms, the rights of the parties will be 

determined from the terms of the agreement. See Harris v. 

Woodrum, 3 Va. App. 428, 432, 350 S.E.2d 667, 669 (1986). "It is 

the court's responsibility to determine the intent of the parties 

from the language they employ." Bender-Miller Co. v. Thomwood 

Farms, Inc., 211 Va. 585, 588, 179 S.E.2d 636, 639 (1971). 

 Three distinct obligations are specified under the heading 

"Spousal Support and Separate Maintenance": the parties agreed to 

share equally the proceeds of all certificates of deposit; the 

husband agreed to make weekly payments to the wife; and the 

husband agreed to maintain a life insurance policy for the wife's 

benefit. Although the parties' obligation to share equally the 

proceeds of the certificates of deposit may have characteristics 

of a property division, the weekly payments do not. The 

agreement does not relate the weekly payments to any property 

interest of the parties and contains no indication that the 

weekly payments were intended to adjust the parties' rights and 

interest in their property.1

 

 

 1Under the heading, "Equitable Distribution of Real and 

Personal Property," the agreement contains numerous provisions 

that divide the parties' real and personal property. That part 

of the agreement also contains provisions apportioning the 

parties' debts. 
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 The agreement provides that the weekly payments are to be 

annually adjusted by the consumer price index. That type of 

adjustment suggests the payments were made to provide for the 

wife's necessities and staples of life. Likewise, the 

stipulation that the weekly payments are to terminate upon the 

wife's death implies that the payments bear upon the wife's 

personal circumstances. We conclude, therefore, that these 

characteristics denote periodic payments in the traditional 

nature of spousal support and maintenance. See Moseley v. 

Moseley, 19 Va. App. 192, 196, 450 S.E.2d 161, 164 (1994) 

(whether a payment is spousal support and maintenance or a 

property distribution is determined by the function that payment 

is intended to serve). See also In re Zuccarell, 181 B.R. 42, 

44-45 (Bankr. N.D. Ohio 1995) (recognizing that, typically, a 

property division is not affected by a change in the personal 

circumstances of the recipient spouse); In re Ackley, 186 B.R. 

1005, 1010 (Bankr. N.D. Ga. 1994) (noting that the structure of a 

provision - whether payment is lump sum or periodic, method of 

payment, terms of payment, amount of payment, whether payment is 

modifiable, and whether payment is subject to contingencies - is 

an important element in determining whether the provision is one 

for support or a property division); In re Edwards, 162 B.R. 83, 

85 (Bankr. D. Conn. 1993) (holding that an obligation is in the 

nature of alimony "when it is intended to provide support for the 

spouse, rather than an equalization of property rights"); In re 
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Jensen, 17 B.R. 537, 540 (Bankr. W.D. Mo. 1982) (noting that 

provisions for payment of expenditures for necessities and 

staples of life reflect a support function). 

 From a plain reading of the agreement, we conclude that the 

parties intended this obligation to be one for spousal support 

and maintenance. Even if we could conclude that the terms of the 

agreement are ambiguous, the evidence proves that the parties 

treated the payments as spousal support. The correspondence 

between the parties referred to the obligation as "alimony." On 

his tax returns, the husband also treated the payments as spousal 

support. Accordingly, we analyze the effect of Code §§ 20-109 

and 20-109.1 upon the spousal support obligation contained in the 

agreement. 

 III. 

 Relying upon Miller v. Hawkins, 14 Va. App. 192, 415 S.E.2d 

861 (1992); Radford v. Radford, 16 Va. App. 812, 433 S.E.2d 35 

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

(1993); and Gayler v. Gayler, 20 Va. App. 83, 455 S.E.2d 278 

(1995), the husband contends that his support obligation 

terminated by operation of Code §§ 20-109 and 20-109.1 because of 

the absence of express language in the agreement stating that the 

spousal support would survive the wife's remarriage. We agree. 

 When this case was decided, Code § 20-109 denoted the trial 

judge's power to award spousal support and to change existing 

awards, and it further provided, in pertinent part, that "[u]pon 
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the death or remarriage of the spouse receiving support, spousal 

support shall terminate unless otherwise provided by stipulation 

or contract." (Emphasis added). Effecting the same policy, Code 

§ 20-109.1 provides, in relevant part, as follows: 

 Where the court affirms, ratifies and 

incorporates by reference in its decree such 

agreement or provision thereof, it shall be 

deemed for all purposes to be a term of the 

decree, and enforceable in the same manner as 

any provision of such decree. The provisions 

of this section shall apply to any decree 

hereinbefore or hereinafter entered 

affirming, ratifying and incorporating an 

agreement as provided herein. Upon the death 

or remarriage of the spouse receiving 

support, spousal support shall terminate 

unless otherwise provided by stipulation or 

contract. 

(Emphasis added). 

 In Miller v. Hawkins, 14 Va. App. 192, 415 S.E.2d 861 

(1992), we considered the following question: "[i]f spousal 

support payments are to continue after remarriage of the 

recipient, must the agreement or decree include specific language 

disclosing that to be the intent of the parties?" Id. at 196, 

415 S.E.2d at 864. The agreement contained the husband's promise 

to pay the wife spousal support in certain amounts and at 

designated intervals.2

 The wife remarried, and the husband 

 

 2The provision at issue in Miller was the following: 

 Husband agrees to pay Wife a reasonable 

sum for spousal support. Until such time as 

the child of the parties shall attain the age 

of 18 years or graduates from high school, 

whichever shall last occur, Husband agrees to 

pay Wife as spousal support the sum of 

$100.00 per week. Thereafter, Husband agrees 
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discontinued payments. In reversing the trial judge's award of 

spousal support arrearages in favor of the wife, we noted the 

following: 

 While no Virginia appellate court has decided 

whether or what specifically is required [to 

avoid the termination provisions of Code 

§§ 20-109 and 20-109.1], . . . [w]e adopt the 

views expressed in several opinions of 

appellate courts in sister states and hold 

that the agreement must contain clear and 

express language evincing the parties' intent 

that spousal support will continue after 

remarriage; otherwise, remarriage terminates 

the obligation. 

 The public policy clearly declared by Code 

§§ 20-109 and 20-109.1 is that spousal 

support does not survive the recipient's 

remarriage. To create an exception to that 

policy, the agreement must be equally clear. 

 If the parties intended that spousal support 

would continue after remarriage, they could 

have included such a requirement in the 

agreement. We do not construe the language 

contained in the agreement before us to 

establish an intent that husband was 

obligated to continue spousal support to wife 

after her remarriage. 

Id. at 195-97, 415 S.E.2d at 863-64 (footnote omitted) (emphasis 

 

to pay Wife the sum of $200.00 per week as 

spousal support until the child of the 

parties attains the age of 23 years or 

completes 4 years of college education, 

whichever event shall first occur; provided, 

however, that in the event Wife should pay in 

full the first lien deed of trust 

indebtedness owed against the above-described 

real estate prior to her re-marriage, then 

the weekly amount to be paid by Husband to 

Wife as spousal support shall be 

re-negotiated or set by the Court if the 

parties cannot agree. 

14 Va. App. at 194, 415 S.E.2d at 862. 
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added). 

 In Radford v. Radford, 16 Va. App. 812, 813, 433 S.E.2d 35, 

36 (1993), the agreement provided that "the husband shall pay 

unto the wife the sum of $200.00 per month for a period of 5 

years." Reiterating the public policy discussed in Miller, we 

held as follows: 

 [S]pousal support provided for in an 

agreement terminates upon the remarriage or 

death of the person to whom the support is 

payable, unless the agreement expressly 

provides for its continuation. [The language 

of Code §§ 20-109 and 20-109.1] contemplates 

an expressed, not implied, provision that 

support shall not terminate upon death or 

remarriage. By resolving ambiguity, Code 

§ 20-109 reduces litigation. To permit its 

mandate to be overcome by implication would 

introduce ambiguity, encourage litigation 

and, thereby, undermine the statute's 

purpose. 

Id. Because the agreement "contained no express provision for 

continuation upon the death or remarriage of the spouse receiving 

support," we ruled that "the spousal support terminated upon the 

wife's remarriage." Id. at 814, 433 S.E.2d at 37. 

 The case we decide today is most similar to MacNelly v. 

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

that the "issue in this case is the application of that statute 

to the terms of a property settlement agreement which stated 

expressly that the death of either party would terminate the 

obligation but did not mention the effect of the wife's 

remarriage." Id. at 429, 437 S.E.2d at 583-84. The agreement in 

MacNelly provided that the husband would make monthly payments to 
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the wife for seven years and that "[i]n the event the husband or 

wife dies before February 1, 1996, then the obligation for 

support and maintenance by the husband to the wife shall cease."3

Id. at 428, 437 S.E.2d at 583. The wife argued that "the 

inclusion of a provision concerning termination of the obligation 

upon death of either party, coupled with the absence of reference 

to the effect of remarriage, shows the parties' intent to avoid 

the statute." Id. at 430, 437 S.E.2d at 584. We ruled, however, 

that "in order to accomplish the stated objective of the statute 

to resolve ambiguity and thereby reduce litigation, any attempt 

to abrogate the effect of the statute requires express language 

either citing the statute or expressly stating that remarriage 

does not terminate the obligation." Id.

 As in MacNelly, the agreement in this case provides for the 

eventuality of the recipient spouse's death and fails to mention 

 

 3The entire provision read as follows: 

 The husband agrees to pay wife for her 

support and maintenance SEVEN THOUSAND 

DOLLARS ($7,000) in cash per month; the first 

payment is to be made on the first of 

February 1989, and the payments shall 

continue on the first day of each and every 

month thereafter until the first day of 

February 1996, at which time support and 

maintenance to the wife shall cease with that 

last payment. These sums are taxable as 

income to the wife and deductible by the 

husband. In the event that the husband or 

wife dies before February 1, 1996, then the 

obligation for support and maintenance by the 

husband to the wife shall cease. 

MacNelly, 17 Va. App. at 428, 437 S.E.2d at 583. 
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the effect of remarriage. The parties' agreement merely states 

that the husband shall pay the wife "an amount equal to $275.00 

cash, per week, until her death." The rulings in Radford and 

MacNelly could not be clearer. The absence of express language 

stating that remarriage will not terminate the obligation 

mandates the conclusion that spousal support terminates upon 

remarriage by operation of the statutes. See Code §§ 20-109, 

20-109.1. 

 The wife argues, however, that the agreement in this case is 

comparable to the agreement in Gayler v. Gayler, 20 Va. App. 83, 

455 S.E.2d 278 (1995). There, the agreement provided that "the 

payments [of spousal support] . . . shall terminate upon the 

Wife's remarriage or death," and it was modified by an addendum 

stating that "the payments . . . shall terminate only upon the 

Wife's death." Id. at 85, 455 S.E.2d at 279. We held "that the 

addendum's excision of the reference to remarriage and the 

addition of the word 'only' evince the parties' intent that 

spousal support would survive wife's remarriage." Id. at 86, 455 

S.E.2d at 280. However, in a footnote to that holding, we made a 

significant disclosure: 

 The use of the term "only" by the parties is 

alone not determinative of the issue. Absent 

the reference to the effect of remarriage in 

the original agreement, the language of the 

addendum standing alone would not be 

sufficient to evince an intent of the parties 

to avoid the operation of Code §§ 20-109 and 

20-109.1. 

Id. at 86 n.2, 285 S.E.2d at 280 n.2. Thus, Gayler turned on the 
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fact that the addendum's alteration of the original support 

provisions was a "critical change in the original agreement," 

which necessarily evinced in a clear and express fashion the 

parties' intent that the support would continue after remarriage. 

Id. at 86-87, 455 S.E.2d at 280. 

 In the agreement that we review in this appeal, no similar 

"critical change" clearly evinces the parties' intent to avoid 

operation of the statutes. Indeed, the language of the parties' 

agreement is virtually identical to "the language of the [Gayler] 

addendum standing alone [which] would not be sufficient to evince 

an intent of the parties to avoid the operation of Code §§ 20-109 

and 20-109.1." 20 Va. App. at 86 n.2, 285 S.E.2d at 280 n.2. We 

reiterate our reasoning in Radford that the statutory "language 

contemplates an expressed, not implied, provision that support 

shall not terminate upon death or remarriage" and that "[t]o 

permit its mandate to be overcome by implication would introduce 

ambiguity, encourage litigation and, thereby, undermine the 

statute's purpose." 16 Va. App. at 813, 433 S.E.2d at 36. 

 IV. 

 Finally, the wife argues that regardless of this Court's 

decisions, the Supreme Court's decision of Wells v. Weston, 229 

Va. 72, 326 S.E.2d 672 (1985), governs this case and mandates 

affirmance of the trial judge's order. We disagree because Wells

is not germane to the issue in this case. 

 As in this case, Wells involved a settlement agreement that 
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became part of the divorce decree. The spousal support provision 

stated that "[h]usband shall pay to Wife the sum of $500.00 per 

month as alimony so long as Wife shall live." 229 Va. at 73-74, 

326 S.E.2d at 673. After the wife remarried, the husband 

discontinued payments. The wife then filed a bill of complaint 

seeking specific performance of the spousal support obligation. 

Id. at 74, 326 S.E.2d at 673. The husband argued at trial that 

the attorney who drafted the agreement represented both parties 

and told the husband the support provision was a "routine" 

provision commonly used in property settlement agreements to 

protect the wife. The husband also argued that because of this 

advice from the attorney, the husband believed the clause would 

not bind him to pay the wife after she remarried. Id. at 75, 326 

S.E.2d at 674. 

 The trial judge found that although the attorney who drafted 

the agreement represented the wife, the attorney was a business 

acquaintance of the husband and advised the husband concerning 

the spousal support provision. Finding the husband's testimony 

more credible, the trial judge ruled that the attorney's conduct 

had the appearance of impropriety. The trial judge also ruled 

that the agreement was void for lack of mutuality and vacated the 

spousal support provision. Id. at 74-75, 326 S.E.2d at 674. 

 Noting that the husband never disclosed his interpretation 

of the agreement to the attorney or the wife, the Supreme Court 

ruled that the husband's unexpressed mental reservations were 
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irrelevant. See id. at 78-79, 326 S.E.2d at 676. The Court 

ruled that the husband had read the agreement and "was fully 

capable of understanding the language used . . . [because there] 

was nothing technical, obscure, or ambiguous in the wording of 

the agreement and the decree." Id. at 79, 326 S.E.2d at 677. 

Based on these rulings, the Court held that the trial judge erred 

in finding a lack of mutuality. Id. However, the Court did not 

address either Code § 20-109 or Code § 20-109.1, and the Court 

gave no indication that the parties relied upon these statutes. 

Accordingly, we conclude that Wells provides no guidance in 

interpreting the statutes. 

 V. 

 In summary, the versions of the statutes in effect when this 

case was decided contained the following language: "Upon the 

death or remarriage of the spouse receiving support, spousal 

support shall terminate unless otherwise provided by stipulation 

or contract." Code §§ 20-109 and 20-109.1. When the legislature 

amended both statutes in 1987, it deleted the provision requiring 

the parties to obtain a judicial order to terminate spousal 

support upon the remarriage or death of the spouse receiving 

spousal support. See 1987 Va. Acts, ch. 424, 694. 

 We have consistently ruled that the statutes declare a clear 

public policy that spousal support will not survive the recipient 

spouse's remarriage. See Miller, 14 Va. App. at 197, 415 S.E.2d 

at 864. The statutes were intended to resolve ambiguity and to 
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enable parties to govern themselves by clear rules without the 

necessity of seeking judicial intervention. See Radford, 16 Va. 

App. at 813, 433 S.E.2d at 36. To give effect to that policy, we 

have held that the statutory "language contemplates an expressed, 

not implied, provision [in agreements] that [spousal] support 

shall not terminate upon death or remarriage." Id. We will not 

negate the statutory policy "by inferring the intent of the 

parties." Id. at 814, 433 S.E.2d at 36. 

 Because the language of the agreement in this case failed 

expressly to state that the husband's support obligation would 

not terminate upon the wife's remarriage, the trial judge erred 

by inferring from the absence of express language an intent that 

support payments would continue. Accordingly, we reverse the 

order. 

 Reversed.