Lois Marie Sirry Peterson v Donald Eugene Peterson

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.

-2-
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

-3-
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

-4-
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

-5-
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

-6-
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.