COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Bumgardner 

Argued at Richmond, Virginia 

OSCAR SPENCER FIELDS 

 MEMORANDUM OPINION* BY 

v. Record No. 2035-99-2 JUDGE RICHARD S. BRAY 

 MAY 16, 2000 

JEWELL BEVELL FIELDS 

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY 

F. Ward Harkrader, Jr., Judge 

 William S. Smithers, Jr. (Thompson, Smithers, 

Newman, Wade & Childress, L.L.P., on brief), 

for appellant. 

 Deanna D. Cook (Bremner, Janus, Cook & 

Marcus, on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Oscar Spencer Fields (husband) appeals the decision of the 

trial court denying his motion for a reduction in spousal support 

previously awarded to his former wife, Jewell Bevell Fields 

(wife). He contends the trial court erroneously found the 

evidence insufficient "to prove a material change in circumstances 

that justifies a modification" of the earlier decree. We disagree 

and affirm the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 
I. 

 The parties married in 1964 and were divorced by decree of 

the trial court entered on September 10, 1996. In pertinent part, 

the decree "affirmed, ratified and incorporated by reference" the 

related report of a commissioner in chancery, which recommended, 

inter alia, a substantial monetary award to wife, equal division 

of the former marital residence and an award of $4,200 per month 

spousal support to wife. The home was subsequently sold and, by 

agreement of the parties, husband's portion of the proceeds was 

credited to the monetary award due from him to wife. 

 In recommending spousal support to wife, the commissioner 

declined to impute income to her, explaining, 

based on all of the evidence, your 

Commissioner believes that it is improbable 

to expect [wife] to immediately become 

employed at the current time given her age 

[of 54], lack of skills and training and her 

having been out of the work force and 

employment arena for approximately 27 years. 

However, the commissioner noted that she was "not unmindful 

. . . that the law imposes a duty upon [wife] to contribute to 

her own support and maintenance and the spousal support award 

recommended herein should not be interpreted as discouraging 

[wife] from seeking education, training, or employment within 

the reasonable future." 

 On March 15, 1999, husband filed the subject motion for 

reduction of spousal support, and the trial court conducted a 

related hearing on May 7, 1999. Evidence presented by husband 

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relevant to the instant appeal disclosed that wife had $234,000 

on deposit to her account at Merrill Lynch, bearing interest at 

4.41% and producing monthly income of $958. The principal sum 

was attributed to funds received by wife from the sale of the 

marital residence following entry of the final decree. Husband, 

therefore, posits that the related income was not contemplated 

in the prior support award to wife. 

 Wife counters that the residence was unsuccessfully 

marketed for "probably two and-a-half" years before the sale, at 

a price "much less" than the value reflected in the 

commissioner's report adopted by the court. Moreover, wife 

argues that the proceeds, one-half her share of the marital 

estate and one-half retained as a portion of the monetary award 

due from husband, were "considered by the . . . court before 

setting the initial support award." 

 With respect to imputation of income to wife, the hearing 

record reflects limited evidence pertinent to wife's 

unemployment and related considerations. Wife acknowledged that 

she has not "made any applications for a job" since the divorce, 

but noted that she did not have "any training" and had not been 

"offered any jobs." Husband testified simply that, "As far as I 

know, she's in good health." 

 Husband stipulated that he "has sufficient income and 

assets to pay the spousal support . . . previously ordered or as 

reduced by the court." 

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II. 

"Upon petition of either party, the court may . . . 

[modify] . . . spousal support . . . as the circumstances may 

make proper." Code § 20-109(A). "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."1 Schoenwetter v. Schoenwetter, 8 Va. 

App. 601, 605, 383 S.E.2d 28, 30 (1989). "The material change 

in circumstances must have occurred after the most recent 

judicial review of the award and 'must bear upon the financial 

needs of the dependent spouse or the ability of the supporting 

spouse to pay.'" Moreno v. Moreno, 24 Va. App. 190, 195, 480 

S.E.2d 792, 795 (1997) (citations omitted). "The determination 

whether a spouse is entitled to [a reduction in spousal] 

support, and if so how much, is a matter within the discretion 

of the [trial] court and will not be disturbed on appeal unless 

it is clear that some injustice has been done." Dukelow v. 

Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). 

 Here, the evidence does not disclose that the interest 

income to wife from the Merrill Lynch account constitutes a 

 1

 We have oftentimes instructed that the two components 

necessary to a modification require independent determinations 

by the court. First, the evidence must prove a material change. 

If so, the court must then "assess whether the requested 

[modification], based on a material change in circumstances, is 

justified in light of the overall circumstances[.]" Yohay v. 

Ryan, 4 Va. App. 559, 566, 359 S.E.2d 320, 324 (1987); see also

Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992). 

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material change in circumstances that justifies a modification. 

In originally awarding spousal support to wife, the trial court 

presumably complied with Code § 20-107.1(8) and, therefore, 

considered those "provisions made with regard to the marital 

property under § 20-107.3," equitable distribution. Code 

§ 20-107.1(8). Such "provisions made" by the trial court "with 

regard to the marital property" pursuant to Code § 20-107.3 

included an order that the "marital residence be immediately 

listed for sale," with the "net proceeds . . . equally divided 

between the parties" and, additionally, a significant monetary 

award to wife. Hence, the court, in decreeing spousal support, 

was aware of the substantial benefits to wife in equitable 

distribution, with attendant benefits and burdens, including 

income and alternate housing costs. Thus, in considering 

husband's motion, the court correctly declined to view the 

realization of such eventualities as constituting a material 

change in circumstances sufficient to justify the requested 

modification. 

 We, likewise, find no merit in husband's claim that income 

must be imputed to wife as a result of her continued 

unemployment. "Whether a person is voluntarily unemployed or 

underemployed is a factual determination." Blackburn v. 

Michael, 30 Va. App. 95, 102, 515 S.E.2d 780, 784 (1999). "In 

evaluating a request to impute income, the trial court must 

'consider the parties' earning capacity, financial resources, 

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education and training, ability to secure such education and 

training, and other factors relevant to the equities'" of the 

parties. Id. (citation omitted). 

 The court determined in the original divorce proceedings 

that wife was not employable. Wife has since pursued no 

training or education to equip her with marketable skills, and 

husband offered no evidence of available employment suitable to 

her present qualifications. See generally Bennett v. Com., 

Virginia Dep't of Soc. Servs., 22 Va. App. 684, 693, 472 S.E.2d 

668, 672 (1996) (trial court properly refused to impute income 

where "mother has not worked for over ten years and no evidence 

was introduced regarding the availability of jobs for her or the 

amount of income she could earn"); Sargent v. Sargent, 20 Va. 

App. 694, 704, 460 S.E.2d 596, 600 (1995) (trial court properly 

refused to impute income where the only evidence that wife could 

earn a better paying job came from the husband and "[n]o 

evidence was presented about the availability of a . . . 

position"). Manifestly, such evidence evinces no changed 

circumstances. 

 Contrary to husband's assertion, the gratuitous comment of 

the commissioner in her report, suggesting that the recommended 

spousal award "should not . . . discourage[] [wife] from seeking 

education, training, or employment within the reasonable 

future," did not rise to an order of the court with the 

incorporation of the report into the decree. 

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 The trial court, therefore, correctly ruled that husband 

"failed to prove a material change in circumstances that 

justifies a modification in the previous support award" and 

properly denied the motion. Accordingly, we affirm the disputed 

order. 

 Affirmed. 

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