                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


VICTORIA M. FRAZIER
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0932-99-1                JUDGE DONALD W. LEMONS
                                              MARCH 21, 2000
JAMES R. FRAZIER


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     James A. Cales, Jr., Judge

           Diane Pomeroy Griffin for appellant.

           Darell Sayer (Ferrell, Sayer & Nicolo, P.C.,
           on brief), for appellee.


     Victoria M. Frazier appeals the decision of the Circuit

Court of the City of Portsmouth and maintains that the

chancellor erred by awarding her lump sum spousal support rather

than periodic spousal support and erred by failing to provide

for a reservation of spousal support.   We agree and reverse and

remand for further proceedings.

     In August, 1996, James R. Frazier ("husband") filed a Bill

of Complaint in the Circuit Court of the City of Portsmouth

seeking a divorce, equitable distribution relief, an award of

     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
attorney's fees and costs and injunctive relief.   Victoria M.

Frazier ("wife"), the appellant, filed an Answer and Cross-Bill

seeking a divorce, equitable distribution relief, an award of

attorney's fees and costs and spousal support.   The parties

agreed to a division of property.   Upon referral, the

commissioner in chancery heard evidence on the issue of spousal

support and on wife's request for an award of attorney's fees.

A Report was filed recommending a lump sum award of spousal

support in the amount of $31,939.20.   Following a hearing on

exceptions filed by both parties, the case was referred again to

the commissioner by order of the Circuit Court of the City of

Portsmouth on September 8, 1998.    The order directed the

commissioner to give reasons for the recommendation of a lump

sum and the amount awarded, and directed him to amend the

recommendation for a lump sum award to provide a reservation to

petition for modification.   The commissioner filed a

Supplemental Report to the Amended Report on December 3, 1998,

wherein he stated that the lump sum amount of $31,939.20 "was

adequate to meet the defendant's reasonably foreseeable need"

and that the award "is not a modest amount but a significant

amount pursuant to the evidence."   The commissioner further

recommended that there be no reservation of spousal support for

wife, reciting again that the lump sum was "not a modest or

small amount" and that he "found no uncertainty in the nature of



                               - 2 -
the factors" upon which he based the lump sum award.    The Report

was confirmed, and this appeal followed.

     The parties were married on July 27, 1974.     They had two

children, both of whom were over the age of eighteen when this

suit for divorce was filed.    The parties separated when husband

left the marital residence in 1990.     At the time of the

commissioner's hearing, husband was forty-seven years old and

had been employed since October of 1996 by Science Applications

International Corporation (SAIC), a United States Navy

contractor.   Prior to that, he worked for Allied Technology

Group.   His earnings were $45,999 per year, or gross earnings of

$3,833 per month, with SAIC.    Husband has a Bachelor of Arts

degree in sacred music, and has worked as a minister of music

and music teacher in addition to his other employment.

     At the time of the hearing, wife was forty-one years old

and worked full-time as a secretary at Commonwealth Propane.

Her annual earnings were $15,949.   Her hourly wage was roughly

$7.20, and her gross monthly wages were $1,334.    She has a high

school degree, and was the primary caregiver of the children

while husband worked.   Her employment history consists of being

a secretary and a real estate agent.    The evidence showed both

parties to be in good health.

     After husband moved from the residence, he continued to pay

certain household bills.   Husband supported wife for seven years

after their separation by paying the mortgage and the utilities.

                                - 3 -
According to wife, the mortgage was $653 per month and the

utilities were approximately $250 per month.   Husband paid

$11,000 in marital debt after separation.   Furthermore, husband,

in addition to the mortgage and utilities, made payments to wife

between $100 and $200 per week for a number of years following

the separation.   Husband received his clothes, books, a stereo,

guitar and some recordings.   Wife received the remaining

contents of the house valued at $10,000, and the marital

residence.   Each party introduced expense summaries into

evidence.    Husband claimed monthly expenses of $2,658 and net

monthly earnings of $3,064.   Expenses totaling $918 were for

mortgage and utilities at the former marital residence, which

would become the responsibility of the wife pursuant to the

parties' agreement concerning the real estate.   Husband

testified that the real estate is in need of repairs and had

been offered unsuccessfully for sale.   Husband drives a 1983

Chevrolet Cavalier.

     Wife listed expenses totaling $2,307, which included the

mortgage and utilities for the residence, which she would be

assuming.    She had net monthly earnings of $1,001.22, leaving a

monthly deficit of $1,305.78.   Wife drives a 1997 Chevrolet

Camaro.   She requested $1,000 per month in spousal support.

     With an award of spousal support, "the law's aim is to

provide a sum for such period of time as needed to maintain the

spouse in the manner to which the spouse was accustomed during

                                - 4 -
the marriage, balanced against the other spouse's ability to

pay."       Blank v. Blank, 10 Va. App. 1, 4, 389 S.E.2d 723, 724

(1990).      Prior to amendment effective July 1, 1998, "Code

§ 20-107.1 provide[d] that the trial court, in its discretion,

may decree that maintenance and support of a spouse be made in

periodic payments or in a lump sum award, or both." 1     Id. at 4,

389 S.E.2d at 724.      "In determining the appropriateness and

amount of a lump sum award, trial courts must consider, in

conjunction with those facts specified in Code § 20-107.1, the

recipient spouse's need for such an award."       Kaufman v. Kaufman,

12 Va. App. 1200, 1205, 409 S.E.2d 1, 4 (1991).      "Although a

lump sum award that satisfies present and contingent needs of

the parties is within the discretion of the trial judge, many

courts have concluded that periodic spousal support is the

preferred form of payment, not favoring lump sum support awards

because such awards usually are considered final and not

modifiable."       Blank, 10 Va. App. at 5, 389 S.E.2d at 725

(citations omitted); see also Thomas v. Thomas, 217 Va. 502, 229

S.E.2d 887 (1976) (trial court erroneously limited its award to

two years where the record contained no evidence that one


        1
       The amendment added that payment could be "periodic
payments of defined duration"; however, the General Assembly
further provided 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." Acts 1998. c. 604, c. 12. The
amendments do not apply to this case which was filed in 1996.

                                   - 5 -
spouse's needs or the other spouse's ability to provide for

those needs would substantially change within the immediate or

reasonably foreseeable future).   In Kaufman, we stated:

               Generally, when courts do make lump sum
          spousal awards they do so because of special
          circumstances or compelling reasons, such as
          a payor spouse's future unwillingness or
          potential inability to pay periodic
          payments, or a payee spouse's immediate need
          for a lump sum to maintain herself or
          himself or satisfy debts. Blank, 10 Va.
          App. at 5, 389 S.E.2d at 725. Moreover,
          unlike periodic spousal support payments
          which are subject to modification upon a
          future change in circumstances, a lump sum
          award is a fixed obligation to pay a sum
          certain when the decree is entered whether
          payable immediately or in deferred
          installments. "Thus, the right to the
          amount, whether payable immediately or in
          installments is fixed and vested at the time
          of the final decree and the amount is
          unalterable by [trial] court order,
          remarriage, or death." Mallery-Sayre v.
          Mallery, 6 Va. App. 471, 475, 370 S.E.2d
          113, 115 (1988). It necessarily follows
          that where the right of the recipient spouse
          to the amount of the lump sum is fixed and
          vested, the obligation of the payor spouse
          is also fixed and such spouse may not be
          relieved of it upon a change in
          circumstances or by the remarriage or death
          of the recipient spouse. Consequently, a
          court’s selection of the method of awarding
          spousal support has considerable
          significance beyond the mere amount of the
          award.

12 Va. App. at 1205-06, 409 S.E.2d at 4.   "A lump sum award

based on evidence showing special circumstances or compelling

reasons may be final if fully adequate to meet the payee

spouse's reasonably foreseeable needs."    Blank, 10 Va. App. at


                              - 6 -
6-7, 389 S.E.2d at 726.    Therefore, we will uphold a lump sum

award "where the record clearly reflects the court's rationale

for finding that the award will adequately provide for

contingencies."   Id. at 5, 389 S.E.2d at 725 (citations

omitted).

     As in Blank, supra, "the record does not support a

conclusion that [wife's] future needs and circumstances are

reasonably foreseeable so that the award, when considered in

connection with [her] other property and circumstances, will be

adequate to meet her needs, regardless of a change in

circumstances."   Id. at 8, 389 S.E.2d at 727.     Pursuant to the

trial court's decree and the parties' property agreement, wife

received the marital home and everything within it.      According

to the evidence, wife has lived and will continue to live in the

marital residence.   She did not, therefore, need a lump sum of

money to acquire a new residence.       See Kaufman, 12 Va. App. at

1207, 409 S.E.2d at 4-5.   Furthermore, there was no evidence

that wife was going to change her profession or intended to

return to school and needed a lump sum to finance her education.

There was evidence of outstanding debts, including a credit card

balance of $2,776, mortgage payments of $653 per month 2 and


     2
       At trial, husband testified that in 1984 the house was
purchased for $73,000 and has since been refinanced twice. The
parties stipulated that the equity in the house was minimal, but
no amount was given as to its value or the pay-off left on the
mortgage. Husband's attorney tried to introduce that evidence
but there was an objection to it by wife's attorney. Husband's

                                - 7 -
monthly car payments of $329 pursuant to a lease.   The record,

however, does not indicate that husband is likely to be

unwilling or unable to pay periodic spousal support.   On this

record, there are no special circumstances or compelling reasons

for wife to receive a lump sum award in lieu of periodic spousal

support.

     Because the refusal to reserve spousal support was

predicated upon the erroneous lump sum award in lieu of periodic

spousal support, it was error as well.

     The award of lump sum spousal support in lieu of periodic

spousal support is reversed and the portion of the decree

denying reservation of spousal support is reversed and the case

is remanded for further proceedings not inconsistent with this

opinion.

                                         Reversed and remanded.




attorney agreed with wife's attorney. The commissioner and
counsel then went off the record, and no further evidence on
that matter was admitted. At the conclusion of the hearing, the
commissioner stated that he would not consider the house in the
determination of spousal support.


                              - 8 -
