Moreno v. Moreno

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata

Argued at Alexandria, Virginia

RICHARD F. MORENO

OPINION BY

v. Record No. 0972-96-4 JUDGE JOHANNA L. FITZPATRICK

FEBRUARY 11, 1997

PATRICIA E. MORENO

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Dennis J. Smith, Judge

Alan M. Winterhalter (Alan M. Winterhalter &

Associates, P.C., on brief), for appellant.

(Carl P. Horton, on brief), for appellee.

Appellee submitting on brief.

Richard F. Moreno (husband) appeals the decision of the

trial court denying a request to terminate his spousal support

obligation to Patricia E. Moreno (wife). He contends that the

trial court erred in using income from his previously divided

government pension as a source of funds to pay spousal support.

Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

The facts of this case are not in dispute. The parties were

married in 1970, separated in 1990, and divorced in 1992. The

final decree of divorce, entered June 15, 1992, incorporated the

parties' property settlement agreement (Agreement). Included in

the Agreement were provisions requiring husband to pay spousal

support and provisions distributing the marital portions of

1

husband's pensions.

1

The final decree of divorce "ratified, adopted and

incorporated" the parties' Agreement, and provides in pertinent

part as follows:

3 B. (1) The Husband agrees to pay to

the Wife, for her support and maintenance, Two

Thousand Six Hundred Dollars ($2,600) per

month . . . .

3 B. (2) The obligation of the Husband

to pay spousal support to the Wife shall

terminate on the first to occur of: (a) the

death of the Husband; (b) the death of the

Wife; (c) remarriage of the Wife; or (d) the

Wife living with a man to whom she is not

married for a period in excess of 6 months, as

though they were husband and wife.

3 C. (1) In the event that the Husband's

income shall be reduced for reasons which are

not wholly within the control of the Husband,

the Wife agrees to consider proposals of the

Husband for modification to the foregoing

spousal support provisions. The Husband

agrees that any such proposals made to the

Wife will be made in good faith and only when

any such reduction in income has a deleterious

effect on his ability to make the payments

required by this Agreement and his ability to

support himself in a manner consistent with

his standard [of] living prior to such income

reduction.

3 C. (2) The Husband agrees that if the

house is not sold prior to his actual date of

retirement, he will not ask a court of

competent jurisdiction to reduce or eliminate

spousal support if the sole basis for the

reduction or elimination of the support

payments is his retirement.

3 C. (3) The parties agree that they

shall have the right to petition a court of

competent jurisdiction to modify or eliminate

the foregoing support and maintenance in

accordance with any statutory provision or

Rule of court then in force.

* * * * * * *

2

Eighteen months prior to husband's mandatory retirement age

of sixty years, husband voluntarily retired and received a

$25,000 buy-out from his employer. At the time of his

retirement, husband was living in Thailand and was a career

employee of the United States government. He has since

remarried, become a permanent resident of Thailand, but is

prohibited by law from working in that country. Upon his

retirement, husband's employer began making the pension payments

as required by the Agreement.

On October 13, 1995, more than a year after his retirement,

husband filed a motion to terminate spousal support. The trial

court heard the motion on March 20, 1996. Husband argued that

the only income source for making his spousal support payments

since his retirement was his pension income and interest earned

from savings. Additionally, he argued that because he could not

11 D. (1) The Wife shall be entitled to,

and receive, fifty per cent (50%) of the

marital share of the Husband's military

pension, when, as and if he receives said

pension, based on years married (calculated up

to the date of separation), during which

Husband accrued a portion of his pension, over

total years in military service (including

Reserves) during which Husband accrued his

total pension benefit.

11 D. (2) The Wife shall be entitled to,

and receive, her maximum pension benefit

allowable under Virginia and federal law,

fifty per cent (50%) of the marital share of

Husband's civil (U.S. Government) pension,

when, as and if he receives said pension.

3

lawfully work in Thailand, he was unable to earn any supplemental

income and none could be imputed to him. He admitted that when

he reached age sixty shortly after trial, he would begin to

receive an additional pension from the U.S. Army, which also

would be divided pursuant to the provisions of the Agreement.

Wife testified that her need for spousal support had not

diminished. Her income was limited to her salary, the spousal

support paid by the husband of $2,600 per month, and her share of

the husband's pension. Wife further testified that her expenses

included the mortgage payments she paid on the parties' former

marital home, upkeep of the home, medical care for herself and

her daughter, as well as financial support for her daughter. The

court denied wife's motion to require husband to pay a portion of

the mortgage payment if it terminated spousal support, finding

that it "had no power to modify this provision of the PSA."

At the conclusion of the hearing, the court found as

follows:

[B]oth parties' testimony was credible[,]

. . . the [husband] did not retire earlier

than his mandatory retirement age for an

improper purpose. . . . [T]he [husband's]

retirement from government service did not

preclude his earning income from other

sources. . . . [T]he [husband] . . . chose[]

to settle abroad in a country where the cost

of living is substantially lower.

The court additionally found that husband "voluntarily chose to

stay in Thailand and, accordingly, retired in a place which did

not allow him to work[,] . . . thus preclud[ing] the [c]ourt from

4

imputing income to him." The court denied husband's motion to

terminate spousal support, but found that "there had been a

change in circumstances to warrant a reduction in the spousal

support from $2,600 per month to [$800] per month, beginning

April 1, 1996. The [c]ourt determined the amount of the award

based on the testimony as to the approximate split of the

[husband's] Army pension and the other evidence." 2

II. STANDARD OF REVIEW

"Whether spousal support should be paid is largely a matter

committed to the sound discretion of the trial court, subject to

the provisions of Code § 20-107.1." McGuire v. McGuire, 10 Va.

App. 248, 251, 391 S.E.2d 344, 346 (1990). Although the decision

to award spousal support rests within the trial court's

discretion, "'such discretion is not absolute and is subject to

review for abuse.'" L.C.S. v. S.A.S., 19 Va. App. 709, 714, 453

S.E.2d 580, 583 (1995) (quoting Via v. Via, 14 Va. App. 868, 870,

419 S.E.2d 431, 433 (1992)).

In fixing the amount of the spousal support

award, . . . the court's ruling will not be

disturbed on appeal unless there has been a

clear abuse of discretion. We will reverse

the trial court only when its decision is

plainly wrong or without evidence to support

it.

Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644

(1992) (citations omitted).

2

The record in this case included a "statement of facts,

testimony and other incidents of the case."

5

"Upon petition of either party, a court may . . . [modify]

. . . spousal support . . . as the circumstances may make

proper." See Code § 20-109. "The moving party in a petition for

modification of support is required to prove both a material

change in circumstances and that this change warrants a

modification of support." Schoenwetter v. Schoenwetter, 8 Va.

App. 601, 605, 383 S.E.2d 28, 30 (1989); Furr v. Furr, 13 Va.

App. 479, 481, 413 S.E.2d 72, 73 (1992); see also Blank v. Blank,

10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (holding that

spousal support must be redetermined if necessary in light of new

circumstances). The material change in circumstances must have

occurred after the most recent judicial review of the award, see

Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d 811, 812

(1993), and "must bear upon the financial needs of the dependent

spouse or the ability of the supporting spouse to pay."

Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452

(1988). "The 'circumstances' which make 'proper' an increase,

reduction or cessation of spousal support under Code § 20-109 are

financial and economic ones." Id. at 419, 369 S.E.2d at 452-53.

On appeal, the trial court's findings must be accorded great

deference. See Bandas v. Bandas, 16 Va. App. 427, 432, 430

S.E.2d 706, 708 (1993). "In determining whether credible

evidence exists, the appellate court does not retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of witnesses." Wagner Enters.,

6

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

"We will not disturb the trial court's decision where it is based

on an ore tenus hearing, unless it is 'plainly wrong or without

evidence in the record to support it.'" Furr, 13 Va. App. at

481, 413 S.E.2d at 73 (quoting Schoenwetter, 8 Va. App. at 605,

383 S.E.2d at 30).

III. PENSION AS INCOME

On appeal, husband posits an alleged internal inconsistency

between the language of Code § 20-107.1 and that of Code

§ 20-107.3(G). 3 Husband argues that the language of Code

3

Code § 20-107.1 provides in pertinent part:

[T]he court may make such further decree

as it shall deem expedient concerning the

maintenance and support of the spouses.

* * * * * * *

The court, in determining whether to

award support and maintenance for a spouse,

shall consider the circumstances and factors

which contributed to the dissolution of the

marriage, . . . . If the court determines that

an award should be made, it shall, in

determining the amount, consider the

following:

(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 . . . .

(Emphasis added). Code § 20-107.3 provides in pertinent part:

(A) Upon decreeing the dissolution of a

marriage, and also upon decreeing a divorce

. . . the court, upon request of either party,

shall determine the legal title as between the

parties, and the ownership and value of all

7

§ 20-107.1 requiring the trial court when setting spousal support

to consider all financial resources of a party, including income

from "all pension, profit sharing or retirement plans, of

whatever nature" conflicts with the language of Code

§ 20-107.3(G), limiting division of a party's pension to fifty

percent of the marital share of cash benefits actually received.

Thus, husband contends that the trial court's failure to

terminate his spousal support obligation resulted in

"double-dipping," because wife already received her maximum

marital share of his pension pursuant to the equitable

distribution provisions of the parties' agreement. 4 Under the

property, real or personal, tangible or

intangible, of the parties and shall consider

which of such property is separate property,

which is marital property, and which is part

separate and part marital . . . .

* * * * * * *

(G) [U]pon consideration of the factors

set forth in subsection E: (1) The court may

direct payment of a percentage of the marital

share of any pension, profit-sharing or

deferred compensation plan or retirement

benefits, whether vested or nonvested, which

constitutes marital property. . . . However,

the court shall only direct that payment be

made as such benefits are payable. No such

payment shall exceed fifty percent of the

marital share of the cash benefits actually

received by the party against whom such award

is made.

(Emphasis added).

4

"Double dipping" is the term used to describe [that

which] . . . occurs when property is awarded

to a spouse in equitable distribution but is

8

trial court's order, husband would be required to use his pension

benefits to pay spousal support because he has no other income.

Although conceding that these code sections are "part of one

legislative scheme dealing with divorce," he argues that they

remain in conflict, and the dollars reflected in his disbursed

marital share of pension monies cannot be used to recalculate his

spousal support obligation.

A. THE RELATIONSHIP BETWEEN CODE §§ 20-107.1 AND 20-107.3

"A primary rule of statutory construction is that courts

must look first to the language of the statute. If a statute is

clear and unambiguous, a court will give the statute its plain

meaning." Loudoun County Dep't of Social Services v. Etzold, 245

Va. 80, 85, 425 S.E.2d 800, 802 (1993). "As we do not believe

the General Assembly intended to enact irreconcilable provisions

in the Act, we construe the provisions in a way that gives full

effect to all the statutory language." Marchand v. Division of

Crime Victims' Comp., 230 Va. 460, 463, 339 S.E.2d 175, 177

(1986).

"When the General Assembly uses different terms in the same

act, it is presumed to mean different things. . . . 'In

then also treated as a source of income for

purposes of calculating alimony

obligations. Double dipping disputes usually

center on pensions.

7 Equitable Distribution Journal 1 (July 1990).

9

construing a statute the court should seek to discover the

intention of the legislature as ascertained from the act itself

when read in the light of other statutes relating to the same

subject matter.'" Campbell v. Commonwealth, 13 Va. App. 33, 38,

409 S.E.2d 21, 24 (1991) (quoting Robert Bunts Eng'g & Equip. Co.

v. Palmer, 169 Va. 206, 209-10, 192 S.E. 789, 790-91 (1937))

(citation omitted). "[S]tatutes addressing the same subject are

to be read in pari materia. In pari materia is the rule of

statutory construction that 'statutes which relate to the same

subject matter should be read, construed and applied together so

that the legislature's intention can be gathered from the whole

of the enactments.'" Alger v. Commonwealth, 19 Va. App. 252,

256, 450 S.E.2d 765, 767 (1994) (quoting Black's Law Dictionary

791 (6th ed. 1990)). "Under the rule of statutory construction

of statutes in pari materia, statutes are not to be considered as

isolated fragments of law, but as a whole, or as parts of a

great, connected homogeneous system, or a single and complete

statutory arrangement." Lillard v. Fairfax County Airport Auth.,

208 Va. 8, 13, 155 S.E.2d 338, 342 (1967).

While Code § 20-107.3(G) precludes the non-employee spouse

from receiving in the equitable distribution proceeding an amount

exceeding "fifty percent of the marital share of cash benefits

actually received by the party against whom such award is made,"

Code § 20-107.1(1) expressly requires that when setting spousal

support, the trial court shall consider a party's financial

10

resources, including income from "all pension, profit sharing or

retirement plans, of whatever nature." (Emphasis added). Each

of these sections concerns decidedly different aspects of the

resolution of marital rights. The one-time equitable

distribution of property completed by Code § 20-107.3 is based on

the accrued rights of the parties in the distributed property.

This is a separate consideration from that necessary to measure

the current financial positions of the parties in determining

spousal support under Code § 20-107.1. Different statutory

5

considerations are mandated for each.

Code § 20-107.1(1) evinces the General Assembly's clear

intent for income from "all pension[s]" to be included in a trial

court's calculation of spousal support. (Emphasis added).

Although Code § 20-107.3(G) limits the award a spouse can receive

pursuant to the equitable distribution of marital property, no

language precludes that property from being considered at a later

time as income for purposes of calculation of spousal support.

The General Assembly could have specifically directed, as did the

New Jersey legislature, that a trial court could not consider the

pension share awarded in the equitable distribution proceeding in

6

determining spousal support. It did not do so. To the

5

The spousal support award, unlike the equitable distribution

award, is subject to modification as circumstances change. The

equitable distribution award, once made, is final and is not

dependent on future events.

6

See N.J.S.A. 2A:34-23, which provides in significant part that

"[w]hen a share of a retirement benefit is treated as an asset for

purposes of equitable distribution, the court shall not consider

11

contrary, the plain language of the statute mandates

consideration of "all pension[s], profit sharing or retirement

plans" in the trial court's determination of spousal support.

Other states have emphasized the distinction between spousal

support and equitable distribution. See, e.g., Krafick v.

Krafick, 663 A.2d 365, 373 (Conn. 1995) (where the Supreme Court

of Connecticut stated that "[a]n award of property is final; the

party who receives property pursuant to § 46b-81 owns it in his

or her own right and controls it. Periodic alimony, on the other

hand, is conditional, subject to modification or elimination").

In Riley v. Riley, 571 A.2d 1261, 1264 (Md. 1990), the Court of

Special Appeals of Maryland held:

Although there is an interrelationship

between the two in the sense that, as to

each, the court must consider the one in

deciding upon the other, . . . they have

quite different purposes and focuses. . . .

[A]limony is intended to provide periodic

support to a financially dependent spouse

following the divorce. . . . [T]he principal

focus is really on the future . . . . A

monetary award . . . is not intended as

support, and it focuses . . . on the present

and past. . . . The sole purpose . . . is to

assure that the disposition of that property

upon the divorce will be equitable in terms

of the overall contributions that each party

made to the acquisition of the property and

income generated thereafter by that share for purposes of

determining alimony." See also Flach v. Flach, 606 A.2d 1153,

1154 (N.J.Super. 1992) ("It is clear that the Legislature, by

enacting the 'pension' amendment to N.J.S.A. 2A:34-23, eliminated

'double-dipping' for retirement benefits. . . . [O]n alimony

modification application, all previously equitably distributed

assets and all assets acquired with, by or through equitably

distributed assets, when repaid, are not to be deemed to be income

for the purpose of determining alimony.").

12

to the marriage and its breakup.

Moreover, it is generally recognized that:

[S]pousal support and equitable distribution

of property are two distinct concepts. The

nonpensioned spouse is not claiming rights as

a co-owner in the distributed property, but

is instead simply asserting that the pension

should not be ignored when gauging the

13

financial position of the two parties for

purposes of awarding alimony.

7 Equitable Distribution Journal 1 (July 1990).

Additionally, in another context dealing with the interplay

between these two code sections, we held that "the appropriate

separation between considerations of spousal support and

considerations of an equitable distribution of marital wealth

prevents a 'double dip' by a spouse who seeks and receives

encumbered marital property under Code § 20-107.3 and also seeks

and receives spousal support under Code § 20-107.1." Gamble, 14

Va. App. at 577, 421 S.E.2d at 646. In analyzing the legislative

intent behind these sections, we held that,

[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 financial

result of the monetary award. Thus, for

example, income producing property conveyed

pursuant to Code § 20-107.3 would alter the

needs of one party and the ability of the

other party to pay spousal support.

Id. at 576-77, 421 S.E.2d at 646 (holding that the chancellor may

not, pursuant to Code § 20-107.1, fix a spousal support award so

that the receiving spouse can satisfy outstanding debts on the

marital property conveyed to that spouse pursuant to Code

§ 20-107.3) (citing Williams v. Williams, 4 Va. App. 19, 24, 354

S.E.2d 64, 66 (1987), and Reid v. Reid, 7 Va. App. 553, 564, 375

S.E.2d 533, 539 (1989)).

"Studied in the light of its purpose and the intent of the

14

legislature, the meaning of [these code sections] is not so

ambiguous as to leave reasonable doubt of its meaning, nor are

its words equally capable of more than one construction." Tiller

v. Commonwealth, 193 Va. 418, 423-24, 69 S.E.2d 441, 444 (1952).

The husband's proposed limited construction of these two

statutory provisions "would be contrary to the express language

used and the manifest intent of the legislature, [and] would

render the statute unreasonable, . . . which cannot be presumed

to have been the intent of the legislature." Id. Accordingly,

we find that, when considered in the overall legislative scheme

for the proper resolution of both property and support issues,

Code §§ 20-107.1 and 20-107.3 are compatible and must be read

together.

B. DUAL CONSIDERATION OF PENSION

We have recognized a distinction between equitable

distribution awards made pursuant to Code § 20-107.3 and spousal

support awards made pursuant to Code § 20-107.1. For example, in

Stumbo v. Stumbo, we held as follows:

A spousal support award under Code § 20-107.1

serves a purpose distinctly different from an

equitable distribution award fashioned under

Code § 20-107.3. "Spousal support involves a

legal duty flowing from one spouse to the

other by virtue of the marital relationship.

By contrast, a monetary award does not flow

from any legal duty, but involves an

adjustment of the equities, rights and

interests of the parties in marital

property." "In determining spousal support,

the trial court's consideration must include

earning capacity, obligations, needs, the

property interests of the parties, and the

provisions if any, made with regard to

15

marital property." "A review of all the

factors contained in Code § 20-107.1 is

mandatory" in making a spousal support award.

Stumbo v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d 591, 594

(1995) (citations omitted). While we have not yet determined the

precise question of whether pension benefits post equitable

distribution may be considered as income in a calculation or

recalculation of spousal support, 7 several of our sister states

have addressed this issue.

The majority of these jurisdictions do not prohibit dual

consideration of the pension award for purposes of equitable

distribution and spousal support. In Riley, a case factually

similar to the case at bar, the Maryland Court of Special Appeals

decided that husband's pension benefits may properly "be

considered as a resource for purposes of determining his ability

to pay alimony," even though wife had already been given a share

of the pension as part of the monetary award. Riley, 571 A.2d at

1266. In that case, the parties were divorced after thirty-two

years of marriage. The decree directed husband to pay alimony,

gave wife a monetary award based on marital property, and awarded

her an interest in husband's pension. Husband paid the monetary

award to wife. He later retired and filed a motion to reduce or

terminate his alimony obligation. Husband argued, as in the

instant case, that the court erred in considering his pension and

7

See Stubblebine v. Stubblebine, 22 Va. App. 703, 709, 473

S.E.2d 72, 74-75 (1996), where we "express[ed] no opinion on the

relationship between Code §§ 20-107.1 and 20-107.3."

16

disability benefits as sources of income for the purpose of

determining his ability to pay alimony. He contended that "his

pension benefits [could not] properly be considered as a resource

for purposes of alimony because [the wife] had already been given

a share of the pension as part of the monetary award and [she]

therefore ha[d] no claim on the balance of the pension." Id. at

1264. The trial court denied his motion. On appeal, the

Maryland Court of Special Appeals held as follows: "[W]e see no

reason why [the trial court] cannot base such an award on assets

or sources of income that have not been taken from the payor and

that do remain available." Id. The court explained:

[The pension share] he paid to her is no

longer a resource of his and was not counted

as such. He therefore has been given credit

for the monetary award paid to [wife]. The

evidence showed that [husband] receives, or

is entitled to receive . . . monthly pension

benefits. That is his money, and it is

therefore, in fact, a resource that he has

from which to pay alimony. We see nothing

unlawful or unfair in the court's considering

it as such.

Id. at 1265.

Similarly, in Pennsylvania, the Court of Common Pleas

divorced the parties, distributed the marital property, and

awarded alimony to wife. Husband, who was receiving his

retirement benefits, argued that he would be "unjustly burdened

if the pension is designated as a marital asset subject to

equitable distribution and also used to calculate the alimony

award" to wife. Braderman v. Braderman, 488 A.2d 613, 620 (Pa.

17

Super. 1985). The appellate court disagreed.

This argument ignores the provisions of the

Divorce Code providing that in determining

the alimony award, the court must consider

numerous factors including the sources of

income and the property of both parties. In

determining the husband's ability to pay

support, the court must consider his earning

power and the nature and extent of his

property. Also, in determining whether

[wife] lacks sufficient property to provide

for her reasonable needs, the court must

consider any property distributed to the wife

pursuant to the equitable distribution award.

Id. Accord White v. White, 192 Cal. App. 3d 1022, 1028-29 (1987)

(holding that the "income from [the husband's] separate property

pension must be considered along with other appropriate factors

when gauging his ability to pay just and reasonable spousal

support"); Krafick, 663 A.2d at 365 (holding that it is not

double dipping to consider vested pension benefits for purposes

of equitable distribution and as a source for alimony in a

martial dissolution action); Sachs v. Sachs, 659 A.2d 678 (Vt.

1995) ("pensions may be considered as marital assets . . . they

may also be considered as a source of income upon which an award

of spousal maintenance may be based").

Further, other marital awards or benefits may be considered

a source of income in different contexts. In McGuire, we held

that the trial court did not abuse its discretion in fixing a

spousal support award when it considered the monthly pension

payments the wife was receiving. See McGuire, 10 Va. App. at

251, 391 S.E.2d at 347. We stated that "Code § 20-107.1 required

the trial judge to consider the income from the federal pension

18

that [wife] . . . was to receive. . . . We believe that the

plain language of Code § 20-107.1 requires that monthly federal

pension payments be considered as akin to monthly income from an

asset and not an exhaustible asset. . . ." Id. at 251-52, 391

S.E.2d at 347 (emphasis added). Moreover,

[M]ost states have never adopted the rule

that a pension cannot be a source for both

property division and alimony, and several

states have rejected the rule expressly.

. . . It is entirely true that a pension

cannot be both presently existing property

and income earned in the future; it must be

one or the other. . . . [A]n award of alimony

can be based not only upon the payor's income

but also upon his property. Where the payor

owns real property, for instance, he may

under some circumstances be required to sell

it in order to pay alimony to his former

spouse . . . . All types of property,

including pensions, should be a permissible

source for future alimony payments.

See generally Brett R. Turner, Equitable Distribution of Property

§ 6.11 p. 355 (2d ed. 1995) (footnotes omitted). We find the

analysis and the cases cited above equally applicable to the

instant case. Thus, we hold that the income received by husband

from his share of the distribution of his pension is a fungible

asset that may be considered as a resource when determining the

amount of his spousal support obligation. By the same token, the

wife's share of the pension is a resource of hers which must be

considered in determining her need for support.

Additionally, it is noteworthy that the parties included

provisions in their Agreement for the reduction and/or

elimination of husband's spousal support obligation upon the

19

happening of enumerated events. Paragraph 3 B. (2) of the

Agreement provides as follows:

The obligation of the Husband to pay spousal

support to the Wife shall terminate on the

first to occur of: (a) the death of the

Husband; (b) the death of the Wife; (c)

remarriage of the Wife; or (d) the Wife

living with a man to whom she is not married

for a period in excess of 6 months, as though

they were husband and wife.

However, the Agreement contains no provision excluding husband's

share of the pension from his income for purposes of

recalculating his spousal support obligation. Neither does the

Agreement contain any provision excluding husband's pension share

from his income in the event it becomes his only source of

income.

Lastly, we address husband's reliance on the New Jersey

cases of Innes v. Innes, 569 A.2d 770 (N.J. 1990), and D'Oro v.

D'Oro, 454 A.2d 915 (N.J. Super. 1982), which held that a pension

once divided may never be considered again. These are easily

distinguished from the instant case. The New Jersey legislature

amended its statute to provide that once a retirement benefit "is

treated as an asset for purposes of equitable distribution, the

court shall not consider income generated thereafter by that

share for purposes of determining alimony." See also Staver v.

Staver, 526 A.2d 290 (N.J. Super 1987) (holding that, pursuant to

N.J.S.A. 2A:34-23, the portion of husband's pension subject to

equitable distribution cannot be considered income for purposes

of alimony). The comparable provisions in Virginia, Code

20

§§ 20-107.1(1) and 20-107.3(G), contain no such prohibition.

Thus, the New Jersey statutory and case law cited by the husband

is inapposite.

Accordingly, we hold that the trial court did not abuse its

discretion in failing to terminate husband's spousal support

obligation, and that the trial court properly reduced the

husband's spousal support obligation from $2,600 to $800 based

upon a change in husband's financial circumstances. For the

foregoing reasons, the trial court is affirmed.

Affirmed.

21