                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia


KATHY CORENA WALK
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1335-07-3                                   JUDGE ROBERT J. HUMPHREYS
                                                                     APRIL 1, 2008
ROBERT BAILEY WALK


                    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                Michael L. Moore, Judge

                 Thomas R. Scott, Jr. (Street Law Firm, LLP, on briefs), for
                 appellant.

                 Gregory Matney (Campbell & Matney, on brief), for appellee.


       Kathy Corena Walk (“wife”) appeals a spousal support award entered pursuant to her

divorce from Robert Bailey Walk (“husband”). Wife argues that the circuit court abused its

discretion in setting the amount of spousal support. Wife presents two bases for her argument.

First, wife argues that the circuit court failed to require husband to support her in the manner to

which she was accustomed during the marriage. Second, wife argues that the circuit court

improperly awarded her a greater percentage of the marital property in order to pay for expenses

properly covered by spousal support. For the following reasons, we agree with wife that the

circuit court improperly distributed the marital property.1 Accordingly, we reverse the circuit

court’s decision and remand the case for further proceedings consistent with this opinion.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.

       1
         Wife concedes that by reversing the circuit court for improperly distributing the marital
property, we need not consider her first question presented.
                                              Analysis

       “On appeal, we construe the evidence in the light most favorable to the appellee.”

Pinkard v. Pinkard, 12 Va. App. 848, 850, 407 S.E.2d 339, 340 (1991). “That principle requires

us to discard the evidence of the appellant which conflicts, either directly or inferentially, with

the evidence presented by the appellee at trial.” Congdon v. Congdon, 40 Va. App. 255, 258,

578 S.E.2d 833, 835 (2003).

       A circuit court has “broad discretion in setting spousal support and its determination ‘will

not be disturbed except for a clear abuse of discretion.’” Brooks v. Brooks, 27 Va. App. 314,

317, 498 S.E.2d 461, 463 (1998) (quoting Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d

363, 367 (1986)). “In exercising its discretion, the [circuit] court must consider all the factors

enumerated in Code § 20-107.1(E) when fashioning its award.” Miller v. Cox, 44 Va. App. 674,

679, 607 S.E.2d 126, 128 (2005); see Code § 20-107.1(F) (requiring that “any order granting,

reserving or denying a request for spousal support shall be accompanied by written findings and

conclusions of the court identifying the factors in [Code § 20-107.1(E)] which support the

court’s order”). 2 One of the factors the circuit court must consider under Code § 20-107.1(E) is

“[t]he provisions made with regard to the marital property under [Code] § 20-107.3,” the

equitable distribution statute.

       Although a circuit court must consider the equitable distribution in determining spousal

support, “[w]e have recognized a distinction between equitable distribution awards made




       2
          The circuit court awarded spousal support to wife, but did not provide any written
findings or conclusions identifying the factors supporting that decision. The circuit court’s
failure to do so is an abuse of discretion. See e.g., Robinson v. Robinson, 50 Va. App. 189, 648
S.E.2d 314 (2007). However, wife does not raise the issue on appeal and we decline to reverse
the circuit court on a ground not raised by the parties. See Rule 5A:20(c); e.g., Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991).

                                                -2-
pursuant to Code § 20-107.3 and spousal support awards made pursuant to Code § 20-107.1.”

Moreno v. Moreno, 24 Va. App. 190, 201, 480 S.E.2d 792, 798 (1997).

                In a divorce case, where a claim for [support] is made by a wife
                who has been held blameless for the marital breach, the law
                imposes upon the husband the duty, within the limits of his
                financial ability, to maintain his former wife according to the
                station in life to which she was accustomed during the marriage.

Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992). It is that “legal duty flowing

from one spouse to the other by virtue of the marital relationship” that forms the basis for a

spousal support award under Code § 20-107.1. Brown v. Brown, 5 Va. App. 238, 246, 361

S.E.2d 364, 368 (1987). “The ‘equitable distribution’ statute, however, is intended to recognize

a marriage as a partnership and to provide a means to equitably divide the wealth accumulated

during and by that partnership.” Williams v. Williams, 4 Va. App. 19, 24, 354 S.E.2d 64, 66

(1987). Equitable distribution is the delineation of property rights, whereas spousal support is

the enforcement of a legal duty.

        In light of those principles, we have held that it is improper for a circuit court to consider

spousal support obligations in distributing marital property. See Lightburn v. Lightburn, 22

Va. App. 612, 619, 472 S.E.2d 281, 284 (1996) (“A trial court determines distribution of marital

property without regard for the considerations of spousal support and the factors in Code

§ 20-107.1.”). We have held the converse to be true as well – a circuit court cannot take marital

property that a spouse is entitled to under Code § 20-107.3 to satisfy that spouse’s support

obligations under Code § 20-107.1. See Zipf v. Zipf, 8 Va. App. 387, 399, 382 S.E.2d 263, 269

(1989) (“The law does not require the spouse who seeks support to exhaust his or her own estate

in order to qualify [for spousal support], relieving the other spouse of all obligation of support

until that estate is depleted.”).




                                                 -3-
       Here, the circuit court gave wife a 60% share of the marital property in equitable

distribution. In doing so, the court awarded her approximately $14,000 more than she would

have received had the court divided the property evenly. In its ruling, the circuit court explained

that it gave wife a larger portion of the marital property because of the increased health insurance

costs she would incur upon divorce.3 However, health care insurance is an expense properly

considered in determining a spousal support award, not equitable distribution. See Lassen v.

Lassen, 8 Va. App. 502, 506, 383 S.E.2d 471, 473 (1989) (“There is no statutory mandate that

health care coverage be provided, though physical and medical condition of the parties is one

fact a court must consider in awarding spousal support.” (emphasis added)). Thus, the additional

$14,000 in marital property must be considered an award of spousal support. As such, the award

was improper. Marital property cannot be used to satisfy spousal support obligations. The

circuit court violated the statutory scheme by granting wife additional marital property to

supplement her spousal support award. In doing so, the circuit court abused its discretion and we

are obliged to reverse its decision.

                                            Conclusion

       Based on the foregoing, we reverse and remand the decision of the circuit court.

                                                                          Reversed and remanded.




       3
        Wife was covered by a health insurance plan provided by husband’s employer and
would no longer be eligible for that plan upon divorce.
                                               -4-
