Lois Marie Sirry Peterson v. Donald Eugene Peterson

• Court: Court of Appeals of Virginia
• Decided: June 20, 1995
• Docket: 0451943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Salem, Virginia

LOIS MARIE SIRRY PETERSON

v. Record No. 0451-94-3 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III DONALD EUGENE PETERSON JUNE 20, 1995

FROM THE CIRCUIT COURT OF ROANOKE COUNTY Kenneth E. Trabue, Judge

J. Emmette Pilgreen, IV (Harvey S. Lutins; Lutins & Shapiro, on briefs), for appellant. G. Marshall Mundy (Cheryl Watson Smith; Mundy, Rogers & Frith, on brief), for appellee.

Lois Marie Sirry Peterson appeals the circuit court's ruling

that terminated her monthly spousal support payments from her

former husband, Donald Peterson. She contends that the trial

court erred by (1) failing to impute pre-retirement income to the

husband for spousal support and (2) finding sufficient changed

circumstances to terminate the spousal support award. Assuming

without deciding that the trial court erred by failing to impute

to the husband his pre-retirement income as the basis for his

ability to pay support, nevertheless, because the evidence shows

that the wife's income had significantly increased within the

five years following the support award and because she is fully

self-supporting, on the facts of this case, the trial court did

not err by terminating the support award.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On appeal, we view the evidence and all reasonable

inferences therefrom in the light most favorable to the

prevailing party below. Alphin v. Alphin, 15 Va. App. 395, 399,

424 S.E.2d 572, 574 (1993). A presumption exists that the trial

judge based his decision on the evidence presented and properly

applied the law. Williams v. Williams, 14 Va. App. 217, 221, 415

S.E.2d 252, 254 (1992) (quoting Brown v. Commonwealth, 8 Va. App.

126, 133, 380 S.E.2d 8, 12 (1989)). Furthermore, a trial judge's

findings will not be disturbed on appeal unless plainly wrong or

without evidence to support it. Jennings v. Jennings, 12 Va.

App. 1187, 1188, 409 S.E.2d 8, 10 (1991).

The parties were married February 23, 1963. They were

divorced January 6, 1989. The property was equitably

distributed. Mr. Peterson was ordered to pay $1000 per month

spousal support. Near the time of the divorce, in 1988,

Mr. Peterson earned approximately $78,447 and Mrs. Peterson

earned approximately $47,000.

In 1989, both parties petitioned the court for modification

of support. Both petitions were denied. Mr. Peterson remarried,

and by March, 1992, his second wife had developed colon cancer.

Mr. Peterson's employer, Norfolk Southern, offered an early

retirement option to its employees. Mr. Peterson was fifty-eight

years old. Due to his wife's illness, Mr. Peterson took the

early retirement option.

After retiring, Mr. Peterson petitioned the court for

-2- termination of his spousal support based on changed

circumstances. Lois Peterson petitioned to increase her spousal

support award. After two ore tenus hearings and the receipt of

legal memoranda, the trial court terminated the spousal support

award. Lois Peterson's income at the time was approximately

$64,500 from wages and an additional $9,000 in interest and

dividend income. Mr. Peterson's retirement income was

approximately $40,000. His pre-retirement income had been

approximately $84,000. Code § 20-109 states: "Upon petition of either party the

court may increase, decrease or terminate spousal support and

maintenance that may thereafter accrue, whether previously or

hereafter awarded, as the circumstances may make proper."

(Emphasis added). A court may not only modify spousal support,

but may terminate it if "changed circumstances" are demonstrated

which justify termination. See Thomas v. Thomas, 217 Va. 502,

505, 229 S.E.2d 887, 889-90 (1976).

"The courts of this Commonwealth are empowered to assess

spousal support awards, not to penalize or reward either party to

the marriage contract, but rather to do equity between the two

and to protect society's interests in the incidents of the

marital relationship." Jacobs v. Jacobs, 219 Va. 993, 995, 254

S.E.2d 56, 57-58 (1979). When determining whether to modify or

terminate spousal support, a trial court balances the factors

contained in Code § 20-107.1 (formerly Code § 20-107), among

-3- which are the incomes, assets, and earning capacities and

respective needs and obligations of both parties. "Code § 20-107

defines several standards for balancing the respective needs and

capacities of the husband and wife. The balance must be struck

and awards made 'upon the basis of the circumstances disclosed by

the evidence at the time of the award.' Code § 20-109 grants

courts continuing jurisdiction to modify awards 'where changed

circumstances are demonstrated.'" Id. (citation omitted). "This

statutory scheme recognizes that comparative needs and capacities

change as circumstances change, that changes are not fairly

predictable, and that spousal support awards must be determined

in light of contemporary circumstances and then, if necessary,

redetermined in light of new circumstances." Jacobs v. Jacobs,

219 Va. 993, 995, 254 S.E.2d 56, 58 (1979).

Two of the elements to be considered in a changed

circumstances analysis are the ability to pay and the need to be

paid. Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d 364, 366

(1985). Additionally, however, Code § 20-107.1 requires that the

trial courts consider: 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

-4- 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.

Lois Peterson contends that the trial court erroneously

terminated her spousal support. She argues that because her

husband elected early retirement, the case of Antonelli v.

Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), and its progeny

justify reversal of the trial court's decision. While we agree

that in certain cases, a court must impute income, we do not find

the imputation of income issue to be dispositive of this case.

See McGuire v. McGuire, 10 Va. App. 248, 391 S.E.2d 344 (1990).

Regardless of the trial court's treatment of the earning capacity

issue, Mrs. Peterson's dramatic increase in actual earnings

justifies the trial court's decision.

At the time of the parties' divorce in 1988, Mrs. Peterson

earned wages of approximately $47,000. By the time of the trial

court's decision, she was earning approximately $64,500 in wages.

Mrs. Peterson also had interest and dividend income of

approximately $9,000 in 1993. One of the reasons stated by the

trial court for termination was "her salary." A trial court is

given wide discretion when determining spousal support. See

-5- Gamble v. Gamble, 14 Va. App. 558, 574-75, 421 S.E.2d 635, 645

(1992). No evidence indicates that she was worse off at the time

of the hearing than when she was married, nor does the evidence

support the view that she was entitled to the imputed income

portion of Mr. Peterson's salary. By all indications, her

standard of living had improved after divorce. The trial court

did not abuse its discretion when it terminated spousal support.

Affirmed.

-6-