Phyllis T. Scott v Fred R. Scott, Jr.

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
PHYLLIS T. SCOTT OPINION BY
v. 	Record No. 1547-96-4 	JUDGE JOHANNA L. FITZPATRICK
MARCH 11, 1997
FRED R. SCOTT, JR.
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge
C. Waverly Parker for appellant.
Burke F. McCahill (Hanes, Sevila, Saunders &
McCahill, on brief), for appellee.
The sole issue raised in this appeal is the effect a final
decree of divorce has on an existing separate maintenance decree.
Wife appeals the trial court's finding that it lacked
jurisdiction to amend the separate maintenance decree following
the parties' divorce. 	We find no error and affirm the trial
court's judgment.
BACKGROUND
The facts of this case are not in dispute. 	Phyllis T. Scott
(wife) and Fred R. Scott, Jr. (husband) were married on August
20, 1969, and one child was born of the marriage. 	The parties
separated in November 1993 and on February 28, 1994, wife filed a
bill of complaint for "separate maintenance, custody and child
support." 	Pursuant to the bill of complaint for separate
maintenance, the court entered a decree on November 9, 1994. 	It
awarded wife custody of the parties' minor child, child support

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in the amount of $1,500 per month, and found that wife was
"entitled to separate maintenance and spousal support but that in
the light of what child support will be ordered, and of all the
other evidence so adduced, she shall have but $1 thereof from
respondent while such child support is payable to her in the sum
hereinafter awarded." 	(Emphasis added).
On January 30, 1995, wife filed a new cause of action
against husband for a divorce. 	Husband filed a cross-bill of
complaint for divorce, spousal support and equitable distribution
of marital property. 	Both parties and all issues of the status
of the marriage, support and equitable distribution were placed
before the trial court which was the same court in which the
initial separate maintenance action had been filed.
On April 10, 1995, the trial court awarded the parties a
divorce a vinculo matrimonii at wife's request on the ground of a
separation for more than one year. 	In the divorce decree, agreed
to by both husband and wife, the trial court specifically
reserved jurisdiction to determine spousal support:
On motion of the parties, as witness
their endorsements upon this decree, the
Court doth hereby expressly reserve unto
itself jurisdiction hereafter to grant
whatever relief . . . is or may be prayed and
proper in a suit of this character, including
without limitation an equitable adjustment of
the parties' property, as provided in
sections 20-107.1 and 20-107.3 of such Code.
The Court hereby finds that the complexity
of the parties' property interest is such as
to justify and make clearly necessary such
reservation of jurisdiction.
And this cause is accordingly CONTINUED,

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without prejudice to the finality of the
divorce hereinbefore granted.
The parties' child reached his majority on August 17, 1995.
Wife then petitioned to re-open the separate maintenance case,
requesting an increase in "the spousal support previously
awarded." 	Wife alleged that the cessation of the child support
payments constituted a material change in circumstances and
entitled her to a greater award of support. 	In response, husband
filed a motion to dismiss wife's petition for lack of
jurisdiction as the parties were no longer married and the
support issues were to be litigated in the divorce case. 	On May
28, 1996, the court granted husband's motion, finding as follows:
The proceeding herein is a common law
separate maintenance action based on the
common law duty of a husband to support his
wife. 	Williams v. Williams, 188 Va. 543
(1948); Heflin v. Heflin, 177 Va. 385 (1941).
The Complainant's right to support in a
separate maintenance action ended when the
Defendant was no longer her husband, i.e. on
10 April 1995 when this Court entered a final
decree of divorce in Phyllis T. Scott v. Fred
R. Scott, Jr., Chancery No. CH95-30. 	This
Court, therefore, has no jurisdiction in this
separate maintenance proceeding to award
spousal support to the Complainant.
Wife appeals from this judgment, arguing that the trial
court's jurisdiction to award continued support in the separate
maintenance action survived the entry of the final decree of
divorce.1
1The parties agree that the trial court properly exercised

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SEPARATE MAINTENANCE
"[S]eparate maintenance" is the "[a]llowance granted to a
wife for support of herself and children while she is living
apart from her husband" and/or "money paid by one married person
to the other for support if they are no longer living as husband
and wife." 	Black's Law Dictionary 1365 (6th ed. 1990) (emphasis
added). 	"[T]he term 'separate maintenance' means those
provisions made pursuant to court order by a husband or wife for
the support of the other spouse when the couple, though still
married, is living apart as a result of a decree of separation."
49 A.L.R. 3d 1266 § 1, n.2 (emphasis added).
While the concept of support for a necessitous spouse is
firmly established, the relationship between support ordered
pursuant to a request for separate maintenance and that which may
later be ordered pursuant to a final decree of divorce is one of
first impression. 	However, several of our sister states have
held that a separate maintenance award depends upon the existence
of the marriage relationship. 	Termination of that relationship
by divorce discharges the responsible spouse from his or her
jurisdiction in the initial separate maintenance action and in
the divorce action, that the court had authority to determine
support in both cases, and that the court reserved jurisdiction
to award support, pursuant to Code § 20-107.1, in the divorce
decree.

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liability for payments under the previous decree for separate
support. 	See, e.g., Kennedy v. Kennedy, 650 So.2d 1362, 1367
(Miss. 1995) ("'Separate maintenance is a "court-created
equitable relief" based upon the marriage relationship.'")
(citations omitted); Ahlstrand v. Ahlstrand, 67 N.E.2d 605
(Ill.App. 1946) (holding that resumption of cohabitation and
marital relations by husband and wife after entry of decree for
separate maintenance of wife automatically abrogates such decree
and renders order therein for payment of alimony void); Rosa v.
Rosa, 5 N.E.2d 417 (Mass. 1936) ("'Proceedings for separate
support "are designed to secure the temporary support of a wife
* * * while the marriage relation exists and the cause for
separation continues."'") (citations omitted).
Generally,
[A] domestic divorce granted upon the wife's
petition, or with personal jurisdiction over
the wife, is held to terminate the wife's
rights under an existing decree of separate
maintenance. 	The reason seems to be that the
wife has an opportunity to make a claim for
alimony in the divorce action, and when she
does not, or when her claim is decided
against her, all rights that depend on the
marriage are terminated. 	The rights under
the separate maintenance decree are of that
nature, although they are embodied in the
decree.
II Homer H. Clark, Jr., The Law of Domestic Relations in the
United States, § 17.4, p. 249, 250 (2d ed. 1987) (citing Esenwein
v. Esenwein, 325 U.S. 279 (1945)). 	Despite arguments to the
contrary, "there are cases which held that the separate

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maintenance decree is authorized (under the applicable statute)
only when and so long as the parties are husband and wife. 	When
the status ends, the maintenance order must end also." 	Id. at
251. 	This rationale applies with particular force to the instant
case in which the wife was the moving party in both actions.
In Brady v. Brady, 158 S.E.2d 359 (W.Va. 1967), a factually
similar case, the Supreme Court of Appeals of West Virginia held
that "[t]he law in West Virginia, . . . has been that a decree of
absolute divorce terminates the right of a wife to separate
maintenance and support and we are not inclined to overrule the
cases on this matter at this time." 	Id. at 364. 	In its
analysis, the court recognized that terminology compounded the
issue: 	"Apparently from the vast number of decisions and
statutes in America attempting to define alimony, support and
maintenance, there is no magic in the words themselves. 	They
have been applied interchangeably or restricted to special
meanings according to what state attempted to construe them."
Id. 	Despite the confusion caused by the different terms, the
court held that "regardless of the word by which an allowance is
called in West Virginia, the allowance resulting from divorce is
a different type of allowance from that existing during a
separation, and necessarily supersedes the separate maintenance
award. . . ." 	Id. at 365.
The court further explained: 	"'The main purpose of a suit
for separate maintenance . . . is to require the [h]usband to

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support his wife during the existence of the marriage, whereas
the real object of a suit for divorce is the dissolution of the
marriage contract.'" 	Id. (citation omitted). 	While the court
denied the wife relief in the form of separate maintenance, it
found her entitled, pursuant to specific provisions in the
divorce decree, to an award of spousal support. 	The same is true
in the case at bar. 	See also Yates v. Yates, 235 A.2d 656 (Conn.
1965) (reasoning that termination of the marital relationship by
divorce precluded the continuance of an order for future
equitable support on behalf of the wife beyond the divorce).
Accord Johnson v. Johnson, 97 A.2d 330, cert. denied, 346 U.S.
874 (Md. 1953) (holding that the obligation to pay alimony under
a separate maintenance decree does not survive a subsequent valid
divorce); Ex Parte Jones, 31 So. 2d 314, 316 (Ala. 1947) (holding
that a divorce decree "puts an end to the relation of marriage as
effectually as would result from the death of either party";
consequently, all duties and obligations dependent upon the
continuance of a relationship immediately ceased, including the
obligation of support under a previously obtained decree of
separate maintenance). 	See generally 46 A.L.R. 3d 1266.
We find this reasoning equally applicable to the instant
case. 	Although a petition for separate maintenance is "within
the inherent jurisdiction of a court of equity," Rochelle v.
Rochelle, 225 Va. 387, 391, 302 S.E.2d 59, 62 (1991), and the
court clearly had jurisdiction over the initial action for

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separate maintenance, there is no question that the divorce court
had personal jurisdiction over both parties. 	Wife in fact filed
both suits. 	In a divorce case, in determining whether to award
support and maintenance for a spouse, the court must consider
"the circumstances and factors which contributed to the
dissolution of the marriage." 	Code § 20-107.1(8).2
These code sections comprise a statutory scheme the court must
2Code § 20-107.1 provides that the court, in making an
award, must consider in determining the amount the following
factors:
1. 	The earning capacity, obligations,
needs and financial resources of the parties,
including but not limited to income from all
pension, profit sharing or retirement plans,
of whatever nature;
2. 	The education and training of the
parties and the ability and opportunity of
the parties to secure such education and
training;
3. 	The standard of living established
during the marriage;
4. 	The duration of the marriage;
5. 	The age and physical and mental
condition of the parties;
6. 	The contributions, monetary and
nonmonetary, of each party to the well-being
of the family;
7. 	The property interests of the
parties, both real and personal, tangible and
intangible;
8. 	The provisions made with regard to
the marital property under § 20-107.3; and
9. 	Such other factors, including the
tax consequences to each party, as are
necessary to consider the equities between
the parties.
Code § 20-107.1.

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follow in divorce proceedings:
Code § 20-96 grants the circuit court, on the
chancery side, the authority to enter a
decree for divorce. . . . As an incident of
that authority, Code § 20-107.1 provides the
statutory authority for the divorce court to
grant spousal support. . . . When considered
together, these Code sections provide a
statutory scheme which authorizes the divorce
court to grant spousal support consistent
with the current needs of one spouse and the
ability of the other spouse to provide for
those needs. 	The circumstances of the
parties may change from time to time. 	Thus,
the statutory scheme authorizes the divorce
court to grant an initial spousal support
award, and, thereafter, based on the
circumstances of the parties to modify that
award.
Reid v. Reid, 12 Va. App. 1218, 1228, 409 S.E.2d 155, 160-61
(1991), rev'd on other grounds, 245 Va. 409, 429 S.E.2d 208
(1993). 	See also Moreno v. Moreno, ___ Va. App. ___, ___, ___
S.E.2d ___, ___, (1997) (holding that an equitable distribution
award must be included in the trial court's calculation of
spousal support); Gamble v. Gamble, 14 Va. App. 558, 576-77, 421
S.E.2d 635, 646 (1992) ("[W]hile Code § 20-107.1 requires a
chancellor to consider the provisions made with regard to marital
property under Code § 20-107.3, we view that requirement as a
practical means by which the chancellor may fix a proper spousal
support award in light of the monetary award."). 	Thus, the
statutory scheme set out by the legislature anticipates that a
trial court will consider multiple aspects of the marriage
relationship when making a final support award incident to a
divorce. 	Consideration of these factors is not mandated when

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making a separate maintenance award made during the life of the
marriage.
The inherent nature of separate maintenance is based on the
parties' status as a married entity. 	When a final decree of
divorce terminates the marriage relationship and the trial court
has the ability to properly address the issues of support, the
proper forum to resolve the issue of spousal support is in the
divorce case. 	Wife's remedy in the instant case is to litigate
her request for spousal support in her ongoing divorce case where
the trial court specifically reserved jurisdiction to award full
relief pursuant to Code § 20-107.1.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.