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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 In an unpublished opinion, a divided panel of this Court 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. 
 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 

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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.

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 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. 

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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 

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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 

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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 

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"[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 

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"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. 

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