Opinion
Record No. 2010-99-2
August 29, 2000
Appeal 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.
Frank N. Cowan (Ishneila Ingalls Gubb; Cowan Owen, P.C., on brief), for appellee.
Present: Judges Benton, Willis and Humphreys
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
James Van Shoaf, Jr., contends that the trial court erred in denying his motion for modification or termination of his spousal support obligation to his former wife, Joyce Hobson Shoaf, pursuant to Code § 20-109(A). We find no error 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 such a relationship. The trial court denied the motion.
Code § 20-109(A) provides, in relevant 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.
In 1998, the legislature reenacted Code § 20-109. See Acts 1998, ch. 604. The statute thus reenacted was in force when Mr. Shoaf filed his motion for modification or termination of spousal support and when the trial court made its ruling. Acts 1998, ch. 604, provided:
2. That 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.
This proviso restricts the operation of the statute, limiting its applicability to orders and modification of orders entered in suits filed on or after July 1, 1998, seeking initial spousal support orders. See Rubio v. Rubio, ___ Va. App. ___, ___ S.E.2d ___ (2000).
Because the spousal support order at issue in this case was entered in a suit filed prior to July 1, 1998, that order is not subject to the operation of Code § 20-109(A).
The judgment of the trial court is affirmed.
Affirmed.
For the reasons more fully stated in Langley v. Johnson, 27 Va. App. 365, 499 S.E.2d 15 (1998), I would hold that the trial judge erred in refusing to decrease or terminate the spousal support the husband was ordered to pay to the wife. The evidence undisputedly proved that the wife "has been habitually cohabitating with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997." Code § 20-109(A).
I disagree with the majority's conclusion that 1998 Va. Acts of Assembly, ch. 604, bars application of Code § 20-109(A) to all orders and modifications of orders except those entered in suits filed on or after July 1, 1998, seeking initial spousal support. Although Rubio v. Rubio, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (2000) holds that "by reenacting [Code § 20-109(A)], the legislature established it anew, superseding its prior forms," the principle is well established that "[t]he reenactment of a statute is a continuation of the law as it existed prior to the reenactment as far as the original provisions are repeated without change in the reenactment." 1A Sutherland Stat. Const. § 23.29 at 416 (5th ed. 1992).
[T]he conclusion necessarily follows that statute law is not abrogated or annulled by mere re-enactment or repetition, and that when, for purposes of enlargement, contraction, or otherwise, a statute is re-enacted or repeated with amendments, the amendatory act is to be regarded as an affirmation and continuation of the prior law, in so far as in substance and operation it is the same, and is to be regarded as new legislation only in so far as in substance or operation it differs from the prior law.
Great Northern Ry. Co. v. United States, 155 F. 945, 955 (8th Cir. 1907); see also Tyson v. United States, 285 F.2d 19, 22 (10th Cir. 1960) (holding that "[a] general rule of construction is that provisions of an original act or section re-enacted or substantially repeated in an amendment are construed as a continuation of the original law . . . [and] are generally held to have been the law since they were first enacted"); State Bd. of Pharmacy v. Zito, 86 N.E. 1041, 1042 (Ill. 1908) (holding that "the general rule is that an amendment is only a repeal as to portions of the original act left out of the amendment, and as to the portion unchanged, in form or substance, the amendatory act is a mere continuation of the original act").
Indeed, those general principles are well established law in Virginia. Our Supreme Court long ago held that "the provisions of [an] act which are . . . re-enacted continue in force without interruption so that all rights and liabilities that have accrued thereunder are preserved and may be enforced." Moore v. Commonwealth, 155 Va. 1, 10, 155 S.E. 635, 638 (1930). Thus, I would hold that Rubio is in conflict with established Virginia case law.
In 1998, when the legislature "amended and reenacted" Code § 20-109(A), it only added the words "the amount or duration of any" so as to cause the following changes in the first sentence:
A. 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.
Acts 1998, ch. 604 (emphasis added). That change did not affect the second sentence of Code § 20-109(A) which is at issue in this proceeding. Although the Act contains the proviso "[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," that language only has application to "the provisions of this act," which are those portions of the act that were amended in the "reenacted" statute.
"[T]he established rule is, that 'the old law was not intended to be altered, unless such intention plainly appears in the new Code.'" Ingram v. Harris, 174 Va. 1, 7, 5 S.E.2d 624, 626 (1939) (citation omitted); see also Hamilton v. Commonwealth, 143 Va. 572, 577, 130 S.E. 383, 383 (1925); Tyson, 285 F.2d at 34 (noting that "[a] law and its application can only be changed by [the legislature] either by the abolition of the old law and passage of a new law or by an amendment of the old law clearly showing [the legislature] intended for the law to have a new meaning"). Thus, in construing the Act, we must be guided by the principles that the unamended, reenacted provisions of Code § 20-109(A) "continue[d] in force without interruption," Moore, 155 Va. at 10, 155 S.E. at 638, and that "[s]tatutes should be construed with reference to their spirit and reason." Norfolk Bar Ass'n v. Drewry, 161 Va. 833, 840, 172 S.E. 282, 285 (1934). It is unreasonable to interpret the intent of the legislature to be that an entire class of cases in which the initial spousal support order was entered before July 1, 1998, is exempt from the July 1, 1997 amendment to Code § 20-109(A) at issue in this case. To construe the act in that manner deprives litigants of "rights and liabilities that have accrued . . . [and which] are preserved and may be enforced." Moore, 155 Va. at 10, 155 S.E. at 638.
I respectfully dissent.