from the trial court's decision to deny my client's petition to modify spousal support now that i've heard these were married for twenty years they lived in washington d c northern virginia area and were divorced in virginia so we have a generic case law that's at issue here the parties when they were divorcing they entered into a marital settlement agreement where the parties agreed on spousal support of approximately thirty three thousand dollars a year is thirty three thousand six hundred dollars a year that my client would pay to donna they were living in northern virginia at the time and after the divorce after the marital settlement agreement la donna move  she frankly doesn't have to work because right now she's receiving fifty three thousand dollars annually with the combined thirty three thousand dollars of spousal maintenance plus now it's news stream of income twenty roughly twenty nine thousand dollars that she receives annually from told on my client's pension her question of the marital pension payment i'm now that's she's entitled to that was all under the marital settlement agreement but it's a new stream of on because tolan unexpectedly after the divorce retired from the military and so her the the main focus of our argument is that she has a new into she does not have to pay for health insurance she never will have to she gets out through the military benefits as well and she has no minor children in the home time she uses these fossil support money that thirty three thousand and here to live on and it sufficient to meet her needs and she doesn't she doesn't need to work she doesn't hasn't to and she's chosen not to work and she doesn't need to maintain our standard of living so the change again time has come once she started receiving this additional twenty one thousand dollars a year and the pension payment that nearly doubles her income so she she's now living and you know much lower cost of living area and receiving a significant more significant amount more than the parties initially i'm anticipated that she would be bringing in so under virginia law you have to  of pension income is a material change so we have to show that there's a material change recent case law supports and i just think common sense you know that just supports the course that's material change that she's receiving this large chunk of money but beyond that you can't just have a material change and i would say also there have been several other material changes but you only need one and i do think that's the most important one to focus on  i think her moving to a lower cost of living area would be another one and she doesn't want your children living at home that could be another one but not just having a material change is not sufficient we also have to have to be a material change that warrants a modification so i think that the it is also i think she could i think that if he thought i don't know because i have is obviously looking at the other side of bad i think that moving and expenses changing valid expenses changing would be a material change but again i think that there's a lot in the briefing about or not there's a lot in there about her moving to galesburg and whether or not the parties do that at the time that they negotiated  the initial spousal support i think that that's kind of a red herring issue i think that the in the pension income is a material change that actually matters i think it's important  expecting him to retire it was a an unexpected events that was not constant played it was not contemplated by the parties that you would be retiring anytime in the near future if they assumed he would be career military for a long time but i don't think that it matters the timing of it doesn't matter because whenever it happened whether that was going to be two years after they got divorced or twenty years after they got a horse whenever he retired and she started getting a pension payment payment he would be entitled to come in and ask for a modification because just receiving that additional money it is a material change under daily and then the nd problem is so we you know it's a material change that she's now getting twenty one one thousand dollars extra a year the reason for the nd prong the reason that warrants a change in the amount of a modification of the stuff in support is because of the windfall that it creates in this which you have our custom and are used to you in your married life so we're not saying that she needs to be you know living some pauper lifestyle but it is a need to keep her in a certain lifestyle so she is used to maintain a lifestyle that she's accustomed to in the marriage and that has absolutely been the case so she moved to m galesburg she is renting a house she has been able to easily meet her expenses she's not going into debt nothing like that she has to have a dip into her assets her her savings are assets on but it's going way beyond that in the trial court level it was that testimony was that she is imony in the trial court was that she more than meets her needs and she simply just saves all of the rest of it and what i would submit to the court with that is not something that we want to set a precedent of a pay your spouse paying it we need to modify the support shimon title to the pension but modify the support so that she's not getting this windfall so that she's not socking away to sixteen thousand dollars a year  is just not spending as she used to she has more than enough to meet her needs very comfortably she's got savings that she hasn't had to touch and she's not working like she she just she is of age and ability to get even if it's just a minimum wage job and she doesn't have to now she didn't work during the marriage so we're not i know my position here today is not that i want to punish madonna and have her have to go out and get a job my point is this new bill needs to she she can win very comfortably with out working but she does not need the additional sixteen thousand dollars every single year that's coming in that we we've now the pension his retirement and the pension income has agreement they agreed that there would only be three circumstances under which she would lose the council's support or there would be cohabitation remarriage and that they didn't make any little green that they did it would be completely terminated i would need to pull the exact language but i believe that they it mirrors the language of the virginia statute that  fully modifiable i know that language was in the marital settlement agreement yes it was  and so i would just again submit to the court that we undertake only we clearly mad that there is the material change and then under the fact is wrong that that material change does warrant downward modification because of the she is able to work doesn't she is that home with no minor children she doesn't need health insurance she never will have to know and she's she's living in galesburg illinois making fifty three thousand dollars a year or bringing in fifty three thousand dollars a year without even working and i just would submit to the court that that is that is when full that was clear never for the trial court not to acknowledge was not a material change in circumstances that warranted a downward modification and three that the court did not use its discretion in rejecting tolan's winfall argument and his request to impute income to donna because the trial court was not required under virginia with regard to the daily case that's cited by opposing counsel under virginia law where the case i've got here the parties enter into a m trial court here has already determined that neither the donna's receipt of the retirement retirement income nor torrens retirement in the near doubling of his income as a result warrants a downward adjustment of the bottom line is under her case law modification to spouses or is only warranted by changing circumstances of the parties when the change bears on the financial needs of the dependent spouse or the ability of the supporting styles to pay the means and the crucial questions the  with regard to with regard to and i'm going to go into a little bit more in just a nd but with regard to the don present sufficient evidence at the trial level to show that one needs had been reduced in some way from what they were in virginia i believe that what the trial court found was that there may be a difference but the extent to which that the difference affected madonna's actual needs was not proven it was tomlin's burden to prove that then the needs of would not have changed in some neither of those things have happened yet with the or you don't have to show that at all furthermore because of the timing of everything the move cannot be a material change of circumstance because much has been made about this additional income source the pension being a windfall but i think that's on this number for a couple of different reasons  one of which is first you don't even get to that spot you don't even get to that spot in the virginia code that the court doesn't even consider the factors  in his letter opinion that's the and i just want to know this the announcement that she is currently receiving from the pension is roughly about the same as the amount  also it's simply incorrect that virginia maintenance words are only allowed up to the level of the pays thousands living expenses to the contrary under virginia law the purpose of spousal support is survive some for such period of time is needed to maintain provided for them as part of benefits to the family so there my house she's in right now is probably much smaller than those houses  one hundred and ninety four thousand as a given the gross asperity it just doesn't make sense to use for under any the two prongs on the modification portion so to clarify that one point and i'm glad that opposing counsel brought up the dress school case that they cite you in their briefs so the driscoll can use them is definitely  a different set of circumstances in that case there was no new money coming into the wife i'm she was not receiving any additional payments the husband was just seeking to reduce her situation had not changed and that is very different than this situation we have on our hands where lozano has a financial situation is the only reason that we're standing here that is the her financial of those is more important than the other isn't work and the st one has been that donna's financial needs have in fact changed she has twenty one thousand extra dollars that she's getting every year she doesn't need the and saving she's she is living she's not compromising on anything she's not working she's at home bringing in fifty three thousand dollars in bills we're going away she's not scrimping she's not living somewhere with a roommate she is living the lifestyle that she very comfortably has chosen and if she was saving us taking that aside a few one hundred dollars every month that would be we would not be anticipated that she would at least go out and get some sort of form of employment but does she have to i mean i don't have any cue solace that she has to go out and work my point in bringing up the fact that she doesn't work and that she lives in the ellsberg and her grant is  half of what it was in d c is simply to illustrate that she is time she is living comfortably where she is right now she is not having to go outside of the home to work she has her expenses when more than a couple that's the whole point she is living the lifestyle that she is using to live and she's saving sixteen thousand dollars a year  because now she has this new twenty one thousand dollars pension income coming into her and so you know spousal maintenance being modified simply to correct for the windfall that the pension payment now plan for her that is she is saving sixteen thousand dollars a year or she the pension is twenty one thousand dollars that she's getting extra she's living within the spousal support needs which is great as it should be that's what it's