Hering v. Hering
In Hering v. Hering, 33 Va. App. 368, 533 S.E.2d 631 (2000), the parties entered into a marital settlement agreement requiring husband to make monthly support and maintenance payments to wife until wife remarried or until either party died. Id. at 369-70, 533 S.E.2d at 632.
The final decree of divorce ratified, affirmed and incorporated the agreement. Id. at 370, 533 S.E.2d at 632. The trial court ruled "that application of Code 20-109(A) to the parties' contract would constitute an unconstitutional impairment of contract." Id. at 371, 533 S.E.2d at 633.
The Court agreed with the trial court's reasoning and affirmed. See id. at 375, 533 S.E.2d at 634-35.
The parties entered into the 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 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:
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 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 "affirmed, ratified, incorporated, but not merged" into the final decree. Id. at 372-73, 533 S.E.2d at 633.
The Court said that if 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 force and effect of a court's decree and are not enforceable by the court's contempt powers. . . .Id.
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.
Under those circumstances, the support obligation is enforceable only as a term of the decree.
On the other hand,
"'where 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.