                     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
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,


                                  2
               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
           1
divorce.

     1
      The parties agree that the trial court properly exercised




                                     3
                       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.




                                 4
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



                                 5
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



                                  6
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



                                   7
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

     2
      Code § 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.



                                 8
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


                                  9
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.




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