COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

DON W. DICKSON 

 OPINION BY 

v. Record No. 1081-95-4 JUDGE CHARLES H. DUFF 

 AUGUST 20, 1996 

PAULA JEAN DICKSON 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Frank A. Hoss, Jr., Judge 

 Patricia F. Hammond (Smith, Hudson, Hammond & 

Alston, P.C., on briefs), for appellant. 

 Robert J. Zelnick (Szabo, Quinto, Zelnick & 

Erickson, P.C., on brief), for appellee. 

 Don W. Dickson (husband) appeals the trial judge's decision 

modifying the amount of monthly spousal support in the original 

divorce decree. He contends (1) that the trial court lacked 

jurisdiction to modify its prior order of spousal support because 

the spousal support award was a lump sum award rather than a 

periodic payment; (2) that the trial judge erred in ruling that 

husband's discharge in bankruptcy of the equitable distribution 

award was a sufficient change in circumstances to justify 

modification of the spousal support award; and (3) that the trial 

judge erred in awarding attorney's fees to Paula Jean Dickson 

(wife). 

 We hold that the original spousal support award was a 

periodic payment award. Thus, the trial court did not lack 

jurisdiction to modify the spousal support award. In addition, 

we hold that the trial judge did not err in concluding that the 
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discharge in bankruptcy was a sufficient change in circumstances 

to justify modification of the spousal support award. We also 

affirm the trial judge's award of attorney's fees to wife. 

Background

 On January 25, 1993, the trial court entered the parties' 

"Final Decree of Equitable Distribution, Permanent Spousal 

Support, Attorney's Fees and Costs." The final decree made a 

partial equitable distribution award to wife of $24,442.53, plus 

an additional amount of money from stock options held in 

husband's name and unexercised at the time of trial. 

 The decree contained the following language concerning 

spousal support: 

 [H]usband shall pay wife the sum of one 

thousand ($1,000) dollars per month as 

spousal support and maintenance for twelve 

months beginning October 1, 1992; eight 

hundred ($800) dollars per month for twelve 

months, beginning October 1, 1993, and six 

hundred ($600) dollars per month, for twelve 

months, beginning October 1, 1994; with the 

husband's obligation to provide spousal 

support to cease on September 30, 

1995 . . . . 

 About six weeks after entry of the final decree, husband 

filed a petition for voluntary bankruptcy. On December 27, 1994, 

the United States Bankruptcy Court released husband from all 

dischargeable debts, including the equitable distribution award, 

resulting in a discharge of over $620,000 in debts. Husband has 

not paid any portion of the equitable distribution award to wife. 

 On November 9, 1994, wife petitioned the trial court for an 
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increase in the amount of spousal support awarded to her in the 

final decree, asserting that the discharge in bankruptcy of 

husband's equitable distribution obligations constituted a 

material change in circumstances. On November 22, 1994 husband 

filed a "Petition to Reduce or Terminate Spousal Support 

Obligation," seeking to decrease the amount of spousal support he 

was obligated to pay. 

 On February 22, 1995, husband filed a motion for a judicial 

determination that the spousal support award in the final decree 

was a lump sum award and was, therefore, not subject to 

modification. The trial judge found that the spousal support 

award was one for periodic spousal support, and that the trial 

court had jurisdiction to modify the award. 

 At a hearing held on April 10, 1995, the trial judge ruled 

that there had been a material change in circumstances after the 

entry of the final decree, entitling wife to an increase in the 

amount of spousal support. The trial judge modified the final 

decree and ordered husband to pay $600 per month in support, 

subject only to termination by operation of law, or remarriage of 

wife, or subject to future modifications. 

 At the hearing, the trial judge said that when he initially 

determined the amount of spousal support, he "place[d] 

considerable weight on all of the factors [listed in Code 

§ 20-107.1]," but he considered the equitable distribution award 

as a "central factor" in the equation. The trial judge then 
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found that the wife's failure to receive the equitable 

distribution award was "a change of circumstances" that merited a 

modification of the spousal support award. In his order 

reflecting his ruling, he also noted that husband had an annual 

net income of about $65,000 to $70,000, while wife had annual 

earnings of about $27,000. 

 The trial judge also found that husband's actions 

exacerbated the time involved on this issue and awarded wife 

attorney's fees. 

Classification of Spousal Support Award

 A periodic payment is a specified amount 

payable at designated intervals with the sum 

total uncertain; the amount of the payment 

can be modified by the court, if one of the 

parties can show a change in circumstances, 

or the amount of payment can be modified by 

agreement of the parties. The total amount 

of periodic support due is contingent upon 

future events; the right to each periodic 

payment becomes fixed and vested only as each 

payment is due. See Eaton v. Davis, 176 Va. 

330, 342, 10 S.E.2d 893, 898 (1940) 

("[A]limony to accrue in future monthly 

installments, though fixed by a final decree, 

is not a vested property right.") In 

contrast, a lump sum award is an order to pay 

a specific amount. The lump sum award is a 

fixed obligation to pay a sum certain when 

the decree is entered but the amount may be 

payable either in deferred installments or at 

once. That the payment method may allow for 

deferred installment payments does not change 

the character of the award. Thus, the right 

to the amount, whether payable immediately or 

in installments, is fixed and vested at the 

time of the final decree and the amount is 

unalterable by court order, remarriage, or 

death. 

Mallery-Sayre v. Mallery, 6 Va. App. 471, 474-75, 370 S.E.2d 113, 
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115 (1988). 

 In this case, the original spousal support award did not 

establish "a fixed obligation to pay a sum certain when the 

decree [was] entered." The award specified an amount payable at 

designated intervals, and the amount due became vested only as 

each payment was due. The final decree did not establish a total 

amount of support. In addition, the trial judge made no findings 

of any "special circumstances or compelling reasons" requiring a 

lump sum award, such as husband's inability to pay future 

periodic payments or wife's immediate need for a lump sum to 

maintain herself or satisfy debts. See Blank v. Blank, 10 Va. 

App. 1, 5-6, 389 S.E.2d 723, 725 (1990). 

 Further, the final decree does not use the words "lump sum" 

or "total amount" or words of similar import. On the contrary 

the decree expressly characterizes the spousal support as a 

"periodic payment." The decree does not provide that the monthly 

installment payments are to continue in the event of wife's 

remarriage or husband's death. See Code § 20-109. 

 Finally relative to this issue, husband impliedly recognized 

that the spousal support award was modifiable by filing his 

Petition to Reduce or Terminate Spousal Support Obligation. He 

expressly sought a reduction in an award which he now contends 

was not modifiable. His petition was never withdrawn, but was 

actively pursued until denied by the trial court in an order of 

March 17, 1995. It is well established in Virginia that a 
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litigant will be precluded from taking inconsistent and mutually 

contradictory positions. Winslow, Inc. v. Scaife, 224 Va. 647, 

653, 299 S.E.2d 354, 358 (1983); Berry v. Klinger, 225 Va. 201, 

207, 300 S.E.2d 792, 795 (1983). 

 Nor does the fact that the support award had a specific 

termination date convert it into a lump sum award. In Radford v. 

Radford, 16 Va. App. 812, 813-14, 433 S.E.2d 35, 36 (1993), the 

parties agreed that "the husband shall pay unto the wife $200.00 

per month for a period of 5 years." This agreement was 

incorporated in the decree. The wife appealed the circuit 

court's order terminating the award upon her remarriage. We 

affirmed, holding that any inference that the parties intended a 

lump sum award by multiplying the monthly obligation by the 

number of months did not overcome the direction of Code § 20-109. 

 Husband relies on Losyk v. Losyk, 212 Va. 220, 183 S.E.2d 

135 (1971), in support of his position. Although the spousal 

support award in this case has similar wording to the spousal 

support award in Losyk, Losyk is distinguishable. 

 In Losyk, the final decree stated: 

 "the Defendant shall pay to the Complainant 

for her own support and maintenance the sum 

of $100.00 per month, beginning on the 3rd 

day of November, 1968, and continuing $100.00 

on the 3rd day of each and every month 

thereafter until October 3, 1969, at which 

time this temporary alimony payment shall be 

terminated . . . ." 

Id. at 221, 183 S.E.2d at 136. On October 3, 1969, the date on 

which the last alimony payment was due, the wife filed a petition 
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asking for a "'final determination of alimony.'" Id. The 

Supreme Court held that "there was no alimony to accrue after 

October 3, 1969, when all monthly payments were completed. Hence 

there was nothing to 'increase, decrease or cause to cease' and 

the court was without statutory authority to reopen the final 

decree . . . as to alimony." Id. at 223, 183 S.E.2d at 137. 

 Here, the final decree awarded monthly spousal support 

payments until September 30, 1995. Wife filed her petition 

seeking an increase in spousal support on November 9, 1994, prior 

to the completion of the monthly spousal support payments. 

Therefore, unlike in Losyk, there was "alimony to accrue" after 

wife filed her petition. Thus, there was something to 

"'increase, decrease, or cause to cease.'" Accordingly, 

husband's reliance on Losyk is misplaced. 

 We conclude that, because the spousal support award was in 

the form of periodic payments, the trial court had jurisdiction 

to modify the award pursuant to Code § 20-109, provided there was 

a material change in circumstances meriting the modification. 

See Mallery-Sayre, 6 Va. App. at 474, 370 S.E.2d at 115. 

Change in Circumstances

 Husband contends that the trial judge erred in modifying 

the spousal support award when the changes in circumstances were 

such that both husband's ability to pay spousal support and 

wife's need for spousal support decreased. In particular, 

husband contends that the discharge in bankruptcy of the 
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equitable distribution award was not a change in circumstances 

sufficient to warrant a modification of support. Husband also 

alleges that the modification in spousal support "punish[ed]" 

husband for his bankruptcy filing and awarded wife cash "far in 

excess of the monetary award." 

 Code § 20-109 provides that "[u]pon the 

petition of either party the court may 

increase . . . spousal support and 

maintenance . . . as the circumstances may 

make proper." The party moving for a 

modification of support payments must prove 

"both a material change in circumstances and 

that this change warrants a modification of 

support." 

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

(citation omitted). 

 The trial judge found that the discharge in bankruptcy of 

the equitable distribution award was a change in circumstances 

justifying modification of the spousal support award, stating: 

 [I]n making [the spousal support] award, I 

did place considerable weight on all of the 

factors, but particularly, the factor such as 

the length of the marriage, which in this 

case was not very long, [wife]'s 

underemployment at the time, and the 

equitable distribution of the parties' 

marital assets. Now, as I said, what has 

unfolded today, a central factor has been 

removed from this equation, that factor being 

the equitable distribution proceeds, [wife] 

never received them. That was something I 

thought she was going to receive when I was 

determining what the spousal support should 

be. 

 In my view, as the cases hold, I think 

that does constitute a change of 

circumstances. And upon consideration of all 

the evidence and the factors under Code 

 § 20-107.1, I think it also calls for a 

modification of the spousal support in this 
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case. 

 Whether the discharge in bankruptcy of an equitable 

distribution award is a change in circumstances justifying 

modification of the original spousal support award is an issue of 

first impression in Virginia. Thus, for guidance, we look to 

authority from other jurisdictions that have addressed this 

issue. In Siragusa v. Siragusa, 843 P.2d 807 (Nev. 1992), the 

Nevada Supreme Court, citing cases from New Mexico, California, 

Minnesota, Washington, and Wisconsin, stated: 

 While we have never addressed the issue, 

both state and federal courts in other 

jurisdictions have uniformly determined that 

the discharge of a property settlement 

obligation in bankruptcy may be taken into 

account in determining whether the parties' 

circumstances have changed sufficiently to 

justify a modification of alimony. The 

uniformity of decisions does not mean that 

the question is not a close one, and two 

strong competing interests must be weighed. 

* * * * * * * 

 [T]he mandates of the Supremacy Clause 

of the United States Constitution compete 

with the equitable interest in preventing one 

spouse from unilaterally acting to deprive 

the other spouse of marital assets.1

Id. at 812 (citation and footnote omitted). 

 The objective of the federal bankruptcy system is to 

"'relieve the honest debtor from the weight of indebtedness which 

has become oppressive and to permit him to have a fresh start in 

 

 1The Supremacy Clause prevents states from enacting laws 

that, among other things, "'sufficiently injure the objectives of 

the federal program.'" Siragusa, 843 P.2d at 812-13. 
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business or commercial life.'" Id. (citation omitted). 

Therefore, an increase in alimony payments after an equitable 

distribution award has been discharged in bankruptcy arguably 

frustrates the "fresh start" policy of bankruptcy relief. But

see Eckert v. Eckert, 424 N.W.2d 759, 762 (Wis. Ct. App.) ("The 

exercise of judicial power modifying spousal support 

post-bankruptcy is not antagonistic to the federal 'fresh start' 

policy of bankruptcy relief"), review denied, 430 N.W.2d 351 

(Wis. 1988). 

 The Siragusa court found that state courts "have resolved 

the tension between federal and state objectives in favor of the 

state interest in resolving domestic disputes." Siragusa, 843 

P.2d at 813. The court held: 

 [A] district court may consider a spouse's 

discharged property settlement obligation as 

a "changed circumstance" in ruling upon a 

motion for modification of alimony. 

Modification of an alimony award based upon a 

discharged property settlement obligation 

does not re-create a debt discharged under 

federal bankruptcy laws, and therefore the 

district court . . . properly considered [the 

husband]'s discharged property settlement 

obligation in ruling upon the motion for 

modification of alimony. 

Id.2 

 

 2Dr. Siragusa, the husband, later brought an action claiming 

that the state court's modification of alimony based on the 

bankruptcy court's discharge of property settlement violated the 

discharge injunction. The United States District Court affirmed 

the bankruptcy court's dismissal of his complaint, and Dr. 

Siragusa appealed to the Ninth Circuit. In Siragusa v. Siragusa, 

27 F.3d 406 (9th Cir. 1994), the Court held that the divorce 

court properly considered Dr. Siragusa's discharge in bankruptcy 

of the property settlement as a "'changed circumstance.'" Id. at 
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 Here, when the trial judge made the initial award of spousal 

support, he was required to consider all of the factors listed in 

Code § 20-107.1, including "[t]he provisions made with regard to 

the marital property under § 20-107.3." Code § 20-107.1(8). The 

trial judge stated that he considered these factors when making 

the original award of spousal support and that he considered the 

equitable distribution award as a "central factor" in determining 

the amount of spousal support. 

 We agree with the majority of states that the discharge in 

bankruptcy of a property settlement agreement or equitable 

distribution award may be considered as a change in circumstances 

justifying the modification of spousal support obligation. Here, 

husband's discharge in bankruptcy of over $620,000 in debts 

greatly improved his ability to pay spousal support. See Ganyo 

v. Engen, 446 N.W.2d 683, 686 (Minn. Ct. App. 1989). 

 

408. The Court further found that 

 the amount awarded in alimony is not a substitute for 

the amount of the discharged property settlement. The 

alimony modification merely takes into account the fact 

that Ms. Siragusa would no longer receive the property 

settlement payments upon which the original alimony was 

premised. The discharge altered both Ms. Siragusa's 

need and Dr. Siragusa's ability to pay. 

Id. See also Richardson v. Richardson, 868 P.2d 259, 262 (Wyo. 

1994) ("[T]here is a significant body of authority which 

consistently supports the district court's decision to treat the 

results of the bankruptcy proceeding as a change of circumstances 

justifying modification of the original decree") (citing Gavin L. 

Phillips, Annotation, Divorce: Court's Authority to Institute or 

Increase Spousal Support Award After Discharge of Prior Property 

Award in Bankruptcy, 87 A.L.R.4th 353 (1991)). 
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 However, husband contends that his income has decreased, 

thereby impairing his ability to pay spousal support. Husband 

testified that his income was $211,000 in 1992, $130,000 in 1993, 

and $99,000, less business expenses, in 1994. Husband stated 

that his net income is about $60,000 to $70,000. Husband also 

testified that he owes more than $72,000 in attorney's fees and 

income taxes. In addition, husband pays $1,700 per month in 

rent. 

 In contrast, there was evidence that husband had a matched 

asset plan containing about $50,000 and that he owned a vacation 

condominium in Myrtle Beach. Husband testified that he exercised 

stock options in October, 1992, but the amount he received from 

this transaction is disputed. These stock options appear to have 

been made a part of the equitable distribution award. However, 

wife testified she has not received any of the proceeds from the 

transaction. 

 At the time of the equitable distribution award, wife was 

unemployed. At the time of the hearing on this matter, she 

earned $8 per hour and worked thirty hours per week. Wife 

testified that, at the time of the divorce, her IRA account 

contained $12,000. Subsequently, she used this account for 

living expenses, leaving a balance of about $500. She also faces 

ear surgery, has no health insurance, and has unpaid medical 

bills, credit card bills, and attorney's fees. Wife has borrowed 

about $56,000 from her father for living expenses. She rents a 
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room in her house to a boarder for $90 per week. 

 "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 (citation omitted). The evidence 

indicates that both parties have experienced material changes in 

their income and expenses after the entry of the 1993 final 

decree. However, ample evidence supports the trial judge's 

ruling increasing husband's monthly spousal support obligation. 

Wife never received any portion of the equitable distribution 

award of $24,442.53 or the undetermined amount of money from 

stock options exercised by husband. Husband discharged over 

$620,000 in debts after the final decree was entered, thereby 

greatly decreasing his monthly expenditures. Wife has borrowed 

money and used her IRA account to pay living expenses. Although 

husband's income may have decreased following the entry of the 

final decree, his overall financial condition has improved since 

1992 due to the discharge in bankruptcy of over $620,000 in 

debts. Accordingly, the trial judge's modification of the 

spousal support award was not plainly wrong or without evidence 

to support it. 

Attorney's Fees

 "An 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, 
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333, 357 S.E.2d 554, 558 (1987). "[T]he key to a proper award of 

counsel fees [is] reasonableness under all of the circumstances 

revealed by the record." McGinnis v. McGinnis, 1 Va. App. 272, 

277, 338 S.E.2d 159, 162 (1985). 

 The trial judge found that husband caused an "exacerbation 

of the time involved in what is really a fairly simple 

issue . . . ." The judge then awarded wife $1,580 in attorney's 

fees. Based on the issues involved and the respective abilities 

of the parties to pay, the award was not unreasonable and the 

trial judge did not abuse his discretion in making the award. 

 For these reasons, we find that the trial judge properly 

modified the monthly spousal support obligation, and the trial 

judge did not abuse his discretion in awarding attorney's fees to 

wife. 

 Affirmed.