COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

EUGENE C. COOK 

 MEMORANDUM OPINION* BY 

v. Record No. 0811-96-4 JUDGE RICHARD S. BRAY 

 APRIL 22, 1997 

HELEN M. COOK 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Beth A. Bittel (Condo & Masterman, P.C., on 

briefs), for appellant. 

 Heather A. Cooper (Marcia M. Maddox; Law 

Office of Marcia M. Maddox, on brief), for 

appellee. 

 Eugene C. Cook (husband) appeals from the trial court's 

refusal to grant his petition for reduction of spousal support to 

his former wife, Helen M. Cook (wife). Husband complains that 

the court erroneously concluded that he failed to prove a 

material change in circumstances which justified relief. Wife 

contends, on cross-appeal, that the trial court erred in denying 

her attorney's fees from husband related to these proceedings. 

For the reasons that follow, we affirm the denial of attorney's 

fees, but reverse the finding that husband did not prove a 

material change in circumstances, remanding to the trial court 

for consideration of attendant spousal support. 

 The parties are fully conversant with the record, and this 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

SPOUSAL SUPPORT

 Code § 20-109 provides that "[u]pon petition of either party 

the court may increase, decrease, or terminate spousal support 

and maintenance that may thereafter accrue . . . as the 

circumstances may make proper." "The moving party in a petition 

for modification of support is required to prove both [that] a 

material change in circumstances [has occurred since the last 

award] and that this change warrants a modification of support." 

Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 

28, 30 (1989). "[T]he 'circumstances' which make 'proper' an 

increase, reduction or cessation of spousal support under Code 

§ 20-109 are financial and economic ones." Hollowell v. 

Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452-53 (1988). 

 The original spousal support payable by husband to wife was 

ordered by the trial court on December 31, 1992. Husband was 

then earning an average monthly income of $6,022.62, exclusive of 

an automobile expense allowance. At the time of the October 1995 

hearing on husband's instant petition for a decrease, he reported 

monthly income of $2,923, also excluding an automobile allowance. 

 Manifestly, such evidence indicates that husband's income had 

diminished approximately $3,100 per month, a substantial change 

in circumstances. 

 Wife, nevertheless, contends that this loss of income did 
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not warrant a modification of support because other financial 

resources were available to husband. In support of this 

argument, wife characterizes a $30,000 cash asset of City 

Mortgage Corporation as severance pay to husband and, thus, 

income to him in 1995. Although the trial court did not 

expressly classify the $30,000 as income to husband, the court's 

colloquy with counsel reflects this conclusion. 

 However, the evidence establishes that these monies were a 

"working asset[]" of City Mortgage Corporation, necessary to 

satisfy "operating expenses." It is uncontroverted that within 

several months following acquisition of husband's interest in the 

corporation, this asset had been reduced to $22,244.64 for 

corporate purposes. Moreover, the record discloses that the FHA 

required City Mortgage to establish an equity of $250,000 to 

continue certain of its significant business activities. Thus, 

the $30,000 was clearly indispensable to the economic vitality 

and attendant production of income by City Mortgage, a portion of 

which provided husband's monthly salary. By classifying these 

funds as severance pay to husband, the trial court attributed as 

income to husband monies which were fully utilized in the 

production of his salary. Husband cannot at once enjoy the 

benefit of such funds through corporate income and personally 

access and expend those same funds, without incurring a 

concomitant loss. 

 Accordingly, we reverse the trial court's finding that 
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husband failed to prove a material change in circumstances which 

warranted a modification of support. 

ATTORNEY'S FEES

 We are guided by the principle that "[a]n award of 

attorney's fees is a matter submitted to the trial court's sound 

discretion and is reviewable on appeal only for an abuse of 

discretion." Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 

554, 558 (1987). Under the instant circumstances, we cannot 

conclude that the trial court abused its discretion in denying 

wife's request. We, likewise, deny wife's request for an award 

of attorney's fees related to this appeal. 

 Accordingly, we affirm the trial court's denial of 

attorney's fees, reverse its finding that husband did not prove a 

material change in circumstances which justified a change in 

support, and remand to the trial court for reconsideration of 

husband's petition consistent with this opinion. 

 Affirmed in part, 

reversed in part, and remanded.