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 
 8 

 

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. 
 9 

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.