COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton, Coleman, Willis, 

 Elder, Bray, Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

ALBERT N. STUBBLEBINE, III 

 OPINION BY 

v. Record No. 1915-94-4 JUDGE SAM W. COLEMAN III 

 JULY 23, 1996 

GERALDINE M. STUBBLEBINE 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Jr., Judge 

 Lawrence D. Diehl for appellant. 

 James A. Watson II (Surovell, Jackson, Colten 

& Dugan, P.C., on brief), for appellee. 

 In this domestic relations appeal, we decide whether the 

trial court erred in awarding spousal support by imputing income 

to the appellant, Albert Stubblebine, a sixty-four year old 

retiree, based upon his ability to earn income in addition to his 

retirement benefits. We hold that considering Mr. Stubblebine's 

capability for obtaining gainful employment as evidenced by his 

recent employment, the trial court did not err by imputing income 

to him. Accordingly, in view of his former wife's financial 

needs the trial court did not abuse its discretion in basing its 

support award upon the imputed income or in ordering that Albert 

Stubblebine pay his former spouse's health insurance premiums. 

 The parties were married in 1952 after Albert Stubblebine 

graduated from the United States Military Academy at West Point. 

 They separated July 4, 1991, when Mr. Stubblebine left the 
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marital home. The final divorce decree entered 

September 19, 1994, granted Geraldine Stubblebine a final divorce 

on the ground of adultery. 

 Albert Stubblebine, a career army officer, attained the rank 

of major general. During his army career, he earned a master's 

degree in chemical engineering. Throughout the marriage, 

Geraldine Stubblebine was an exemplary wife for Albert 

Stubblebine and an exemplary mother for their two adopted 

children. In addition to her duties as a wife and mother, she 

periodically worked outside the home in a series of part-time 

jobs in order to contribute to the family's income. 

 After Mr. Stubblebine retired from the Army in 1984, he 

worked for BDM Corporation (BDM), a private company, where his 

annual salary as a vice president was $90,000. He retired from 

that position in 1990 and undertook a variety of independent 

consulting jobs, the last of which ended in 1993, after the 

parties had separated and five months before filing of the 

divorce proceedings. The last consulting job involved a contract 

that paid Stubblebine $40,000 annually. 

 Albert Stubblebine was not gainfully employed at the time of 

trial. He was, however, working fifty to sixty hours per week, 

without compensation, preparing for an annual conference for an 

organization involved in the study of parapsychology and psychic 

phenomena, subjects of personal interest to Stubblebine. He was 

also working twenty hours per week for his female friend, without 
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pay, helping organize and manage her psychiatry practice. At the 

time of trial, Albert Stubblebine was receiving $5,432 per month 

in gross retirement pay from the Army and $772 per month in gross 

retirement pay from BDM. 

 At the time of trial, Geraldine Stubblebine suffered from 

several chronic diseases, including arterial fibrillation, small 

bowel disease, and chronic shortness of breath caused by removal 

of part of a lung due to cancer. She is unable to work. 

 The parties stipulated that Mrs. Stubblebine would receive 

one-half of Mr. Stubblebine's two retirement pensions, which 

would give her a monthly income of $3,058.1

 Mrs. Stubblebine 

requested, however, that the trial court award her spousal 

support under Code § 20-107.1 in addition to one-half of the 

retirement payments. In response, Mr. Stubblebine contended that 

he was twice retired, both times during the marriage when the 

parties did not contemplate divorce; that he was not gainfully 

employed and had no significant income; and that he had 

voluntarily relinquished to his wife one-half of his monthly 

retirement income, the maximum to which she is entitled from the 

pension under Code § 20-107.3(G). He contended that he had no 

earned income from which to pay support. Mrs. Stubblebine's 

evidence showed monthly expenses in the range of $5,200. 

 The trial court, in awarding her $1,000 per month spousal 

 1Presumably, the division of the two pensions was an equitable 

distribution of this item of marital property under Code § 20-

107.3, as limited by subsection G. 
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support, found that the 

 husband contrary to his assertion, is not 

retired. . . . Clearly, husband chooses to 

work but not earn income which could help 

support his wife, who cannot work. Husband's 

needs, as shown by the evidence, are minimal. 

He can and should pay spousal support. The 

evidence supports a minimum imputed income to 

the husband of $40,000. Wife is entitled to 

a spousal support award of $1,000 per month. 

 Husband should provide health insurance for 

the wife substantially similar to what is now 

provided. 

 A spouse's entitlement to support and the amount of the 

award are matters within the sound discretion of the trial court. 

Steinberg v. Steinberg, 11 Va. App. 323, 329, 398 S.E.2d 507, 510 

(1990). In determining the amount of an award, the court must 

consider all of the factors set forth in Code § 20-107.1. The 

court's decision is presumed correct and will not be disturbed 

unless some injustice has been done. Steinberg, 11 Va. App. at 

329, 398 S.E.2d at 510. 

 A reduction in income resulting from a voluntary employment 

decision does not require a corresponding reduction in the payor 

spouse's support obligations, even if the decision was reasonable 

and made in good faith. See Antonelli v. Antonelli, 242 Va. 152, 

156, 409 S.E.2d 117, 119-20 (1991). Accordingly, a "court may 

impute income to a party who is voluntarily unemployed or 

underemployed." Calvert v. Calvert, 18 Va. App. 781, 784, 447 

S.E.2d 875, 876 (1994). The trial court, in determining whether 

to award support and the amount thereof, may consider earning 

capacity as well as actual earnings in fashioning the award so 
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long as it applies "the circumstances in existence at the time of 

the award." Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 

430 (1987); see also Code § 20-107.1. 

 Albert Stubblebine was not gainfully employed at the time of 

trial. He had twice voluntarily retired after two careers. He 

did, however, work fifty to sixty hours per week for a private 

organization investigating psychic phenomena and twenty hours per 

week organizing and managing his friend's psychiatric practice. 

For these efforts, he did not receive any monetary compensation. 

 In fact, Stubblebine testified that he was no longer interested 

in making money and that he had not sought paid work since 1993. 

 Contrary to the assertions in the dissent, we do not hold 

that Albert Stubblebine's support obligation arises only because 

of the nature of his post-retirement activities. The nature of 

Mr. Stubblebine's activities following retirement are relevant 

only insofar as they evince his continued physical and mental 

capacity to be gainfully employed. Albert Stubblebine's support 

obligation arises from the current needs of his former spouse and 

his ability to provide that support. 

 Although Albert Stubblebine had completed a full military 

career and retired from BDM, the court found that he had the 

capability to earn $40,000 per year as a consultant. The court 

based this finding on the contract that Albert Stubblebine had 

worked under five months before the hearing and did not consider 

his earning capacity prior to his retirement from BDM. See
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Donnell v. Donnell, 20 Va. App. 37, 41, 455 S.E.2d 256, 258 

(1995) (holding that the trial court improperly imputed income to 

the payor spouse on the basis of his pre-retirement earning 

capacity). Imputing income2 to Albert Stubblebine on the basis 

of his recent past earnings did not constitute an abuse of 

discretion. "[A] trial court may impute income based on evidence 

of recent past earnings." Brody v. Brody, 16 Va. App. 647, 651, 

432 S.E.2d 20, 22 (1993). See also Barnhill v. Brooks, 15 Va. 

App. 696, 703, 427 S.E.2d 209, 213 (1993) (holding that an 

exhibit "indicating precisely" "prior gross monthly income" 

presented a "unique situation" that enabled the trial judge to 

impute income to the payor spouse). Although Albert Stubblebine 

introduced evidence that, due to the depressed defense industry, 

he no longer could obtain a similar consulting job, his ability 

to work and his record of gainful employment subsequent to his 

retirement support the trial court's finding that Stubblebine 

could be gainfully employed. Consequently, based upon the recent 

record of earnings, the court did not premise the award "upon the 

occurrence of an uncertain future circumstance." Jacobs v. 

Jacobs, 219 Va. 993, 995-96, 254 S.E.2d 56, 58 (1979). 

 Albert Stubblebine argues persuasively that a spousal 

 

 2Presumably, the judge imputed income to Albert Stubblebine 

because he believed he could not order support under Code 

§ 20-107.1 from pension income previously equally divided in 

equitable distribution. See Code § 20-107.3(G)(1). We express no 

opinion on the relationship between Code §§ 20-107.1 and 

20-107.3(G)(1) and decide only whether a trial court may impute 

income to a retired spouse when fixing spousal support. 
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support award should not operate to force persons who have 

reached usual retirement age to continue working. We do not by 

this opinion establish a bright-line rule requiring a payor 

spouse to forgo retirement in order to maintain support 

obligations at a pre-retirement level. Each case depends on its 

particular facts. See Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 

1992); Avery v. Avery, 548 So.2d 865, 866 (Fla. Dist. Ct. App. 

1989). 

 In Pimm, the appellant retired at the age of sixty-five and 

petitioned the trial court to terminate his alimony obligations. 

Pimm, 601 So.2d at 535. He argued, much like Albert Stubblebine 

does here, that a payor spouse would be placed in the "untenable 

position of being unable to retire at any age" if courts did not 

consider the reduced income resulting from a reasonable voluntary 

retirement when deciding whether to modify alimony obligations. 

Id. at 536. The Florida Supreme Court held that trial courts 

should consider a voluntary retirement at the age of sixty-five. 

Id. at 537. Nonetheless, the court stated that the receiving 

spouse's needs are still an important consideration and that 

"[e]ven at the age of 65 or later, a payor spouse should not be 

permitted to unilaterally choose voluntary retirement if this 

choice places the receiving spouse in peril of poverty." Id. 

 Similarly, the Supreme Court in Antonelli, 242 Va. at 155, 

409 S.E.2d at 119, acknowledged that in making support awards, 

trial courts must consider "bona fide and reasonable" employment 
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decisions which result in the payor spouse earning less income. 

Such decisions would include retirement, and we find this 

reasoning persuasive and applicable to the circumstances of this 

case. When considering the issue of spousal support, whether in 

a modification or initial award determination, the trial court 

must take into account the receiving spouse's needs and ability 

to provide for the needs, and balance those against the other 

spouse's ability to provide support, even when the payor spouse 

has retired in good faith at a "normal" retirement age. See

Code § 20-107.1. 

 Spouses entitled to support "have the right to be maintained 

in the manner to which they were accustomed during the marriage, 

but their needs must be balanced against the other spouse's 

financial ability to pay." Floyd v. Floyd, 1 Va. App. 42, 45, 

333 S.E.2d 364, 366 (1985). When considering an initial spousal 

support order or a modification, the trial court must consider 

each spouse's current circumstances, including the fact that a 

party has retired, the parties' plans and expectations associated 

with the retirement, and each parties' earning capacities and 

needs at the time of the hearing. However, the trial court 

cannot ignore the policy underlying Code § 20-107.1 which 

balances the parties' incomes or their capacities to earn income 

against their respective needs. As that balance applies to the 

facts of this case, Albert Stubblebine had provided most of the 

financial support during the marriage. After his retirement, he 
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had been gainfully employed and contributed significantly to his 

wife's support, up until the divorce, at a level that exceeded 

his retirement income. Geraldine Stubblebine suffers from 

several chronic diseases and is unable to work. Her one-half 

share of Mr. Stubblebine's two retirement pensions would provide 

a monthly income of $3,058,3

 while her evidence proved monthly 

expenses in the range of $5,200. 

 Albert Stubblebine, as his current activities demonstrate, 

is capable of gainful employment. However, regardless of whether 

Albert Stubblebine had chosen a more relaxed retirement rather 

than pursuing an active retirement, the fact remains that he is 

capable of gainful employment. Moreover, he worked and 

contributed to his wife's living standard until five months 

before the divorce. On these facts, the trial court did not 

abuse its discretion by imputing income to Albert Stubblebine in 

an amount based upon his recent earnings history. Accordingly, 

we affirm the trial court's decision. 

Affirmed.

 

 3Because the trial court based its spousal support award upon 

imputed income and not upon Albert Stubblebine's retirement 

income, we do not address whether a spousal support award based in 

part upon his retirement income would be in derogation of Code 

§ 20-107.3(G). 
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Benton, J., dissenting. 

 For the following reasons, stated in my earlier dissent to 

the panel decision, Stubblebine v. Stubblebine, 21 Va. App. 635, 

643-52, 466 S.E.2d 764, 768-72 (1996)(Benton, J., dissenting), I 

dissent. I also join in Judge Elder's dissent except the 

discussion in his second paragraph stating that a trial judge may 

require a spouse who is retired and later divorced to abandon his 

or her retirement and reenter the workforce. 

 The evidence proved that the husband was sixty-four years of 

age, had twice retired during the marriage, and was a part-time 

consultant during his retirement when the marriage disintegrated 

and the parties separated. During the divorce proceedings, both 

of the husband's consulting contracts were terminated. Upon the 

evidence in this case, I would hold that the trial judge erred in 

requiring the husband to reenter the labor market and by imputing 

to the husband an ability to obtain employment paying $40,000 

annually. 

 The evidence proved that during the marriage the husband was 

a career military officer. The husband's military expertise was 

in the areas of military intelligence, and he was promoted to 

Commander of the United States Army Intelligence and Security 

Command. In 1984, during the marriage, the husband retired from 

the United States Army after thirty-two years of service. 

 Following his retirement from the Army, the husband worked 

for a private sector defense contractor, BDM International, Inc. 
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 He was employed as a vice president for intelligence systems. 

After six years of employment, he was forced to retire from that 

position in August 1990. 

 The parties were still married when the husband entered his 

second retirement at age sixty-one. Although the husband engaged 

in part-time activities for which he received payment, he did not 

reenter the labor market after his second retirement. Following 

his second retirement, the husband served as a member of the 

board of directors of several small consulting companies. As a 

director, he received a small stipend and reimbursement for 

expenses incurred for the companies. He was not an employee of 

those companies and, therefore, received no salary. 

 In addition to those activities, the husband acted as a 

part-time consultant to two government contractors during his 

retirement. The first consulting contract with a company called 

ERIM required him to consult four days a month and ended because 

of a lack of government funding. The second consulting contract 

was with Space Applications Corporation (S.A.C.), another defense 

contracting company. The contract required him to consult two 

days a month. The evidence proved that this contract expired and 

was not renewed by the company. 

 Thus, the evidence in this case proved that the husband had 

retired, indeed twice retired, prior to the separation of the 

parties and prior to the institution of the divorce proceedings. 

 No evidence in the record proves or even suggests that the 
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husband retired from the Army or BDM except in accordance with a 

decision that he made in good faith in consideration of a 

reasonable retirement. No evidence proved that either the 

retirement from the Army or the retirement from BDM was 

unreasonable or unacceptable to the parties while they were 

married. The wife neither alleged nor proved that the husband's 

pre-separation retirement decisions were made in bad faith. 

 Citing Pimm v. Pimm, 601 So.2d 534, 537 (Fla. 1992), and 

Avery v. Avery, 548 So.2d 865, 866 (Fla. Dist. Ct. App. 1989), 

the majority concludes that the trial judge must consider the 

receiving spouse's needs and may impute income to the payor 

spouse even when the payor spouse has retired.4 From a cursory 

reading, Avery appears to support the majority's view. The 

Florida Court of Appeals upheld a trial judge's order requiring a 

retired social security pensioner who "had diabetes and was in 

poor health" to pay the entire amount of his social security 

payments to support his fifty-eight-year-old wife. The trial 

judge imputed no income to the wife, who had worked throughout 

their ten-year marriage and who was still capable of working. 

Id. at 865. 

 Although I believe that Avery is wrongly decided and I would 

 

 4The husband does not dispute that the wife is unable to work 

because of her medical conditions. However, he does note that 

evidence in the record proved that the wife continues to smoke 

cigarettes after having lung cancer surgery and drinks four 

glasses of wine each evening aggravating her illnesses and 

complaints of shortness of breath. 
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not rely upon it, I also believe that the decision is grounded in 

large measure upon two factors expressly disclosed in the 

opinion, that are not applicable to this case. First, the 

husband "indicated his intention to go to work again to help 

support himself." Id. at 866. Second, the Court of Appeals 

offered the following disclaimer: 

 We do not determine by this opinion that a 

husband who has reached the age of retirement 

must continue working in order to pay alimony 

to his wife in all cases. Each case must 

turn on its own facts, and we cannot say the 

trial court abused its discretion in the 

disposition of the issue of alimony in this 

case. This is especially true in the instant 

case where the evidence heard by the trial 

court regarding the sale of the business 

could lead to a conclusion that the husband 

was realizing more out of the sale than he 

admitted to in his testimony. [Footnote 1]. 

 In pronouncing judgment, the trial court 

noted that, after having listened to the 

evidence "[the husband's] credibility is not 

very high with me." 

 [Footnote 1] He stated that the payments 

he was receiving were being used to reduce a 

judgment against him, but he did not know the 

amount of the judgment, nor did he offer any 

documentary proof of the judgment or the 

payments he made on it. Thus, the evidence 

presented a murky picture at best of the 

husband's financial ability. 

Id. (citation omitted). If, indeed, every case turns upon its 

peculiar facts, these facts suggest that Avery was grounded in 

factors relating to the husband's true financial condition and 

his credibility rather than the principle that a retired person 

must abandon retirement to support a spouse in financial need. 

Pimm, a later Florida case involving a post-judgment 
- 14 - 

retirement, implicitly rejects the harshness of Avery. In its 

decision certifying to the Supreme Court of Florida the question 

whether post-judgment retirement of a spouse is a change in 

circumstance, the Court of Appeals of Florida observed that it 

could not "conclude . . . that a 'voluntary' retirement under 

normal circumstances or at a normal or expected retirement age 

should be equated with such a voluntary diminution of income." 

Pimm v. Pimm, 568 So.2d 1299, 1300 (Fla. Dist. Ct. App. 1990), 

approved, 601 So.2d 534 (Fla. 1992). The Court of Appeals 

explained the rationale for its decision rejecting a rule that 

would otherwise be "too severe": 

 If the parties had remained married, they 

more than likely, as other retired people 

often do, would have expected to live on 

reduced income when the supporting spouse 

reached retirement age. We are unwilling to 

hold, as a matter of law, that a supporting 

spouse in a dissolved marriage cannot rely on 

the reduced income at retirement as a change 

in circumstances that may be considered on a 

petition for modification of alimony. To so 

hold would place many such supporting spouses 

in the position of being unable to retire at 

any age so long as their alimony obligations 

remained unchanged. 

Pimm, 568 So.2d at 1301 (emphasis omitted). 

 In approving the decision of the Court of Appeals, the 

Florida Supreme Court also recognized the reality that retired 

persons expect to live on reduced income and noted that "the 

obligation to pay support to a former spouse is different from 

the obligation to pay child support." Pimm, 601 So.2d at 537. 

Indeed, most working persons and their spouses have an 
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expectation that the working spouse's retirement will occur and 

intend to adjust their lifestyles. A reduction in spouses' 

lifestyles at retirement is neither an unexpected phenomenon nor 

punitive. 

 Although Virginia case law is sparse on this issue, in 

McGuire v. McGuire, 10 Va. App. 248, 391 S.E.2d 344 (1990), this 

Court tacitly approved the husband's early retirement from 

government employment at age fifty, "the retirement age permitted 

by federal law for law enforcement officers." Id. at 250, 391 

S.E.2d at 346. This Court ruled that the husband's post-judgment 

early retirement, a voluntary career decision, was the proper 

basis for a motion to change support based on a change in 

circumstances. Implicit in this decision is the principle that a 

trial judge, when considering the factors under Code § 20-107.1, 

may not ignore a party's "long-standing" career decision to 

retire, albeit an early retirement. Id. 

 This case is not one in which the husband retired 

post-divorce or had an expectation of future retirement. The 

facts prove that the husband had already retired and the parties 

were living upon the husband's post-retirement income when they 

separated and later were divorced. If the parties had remained 

married, both would have shared in the change in lifestyle that 

resulted from the husband's diminished income. Nothing in this 

record justifies granting the wife a support award based upon a 

projection of earnings as if the husband had not retired. The 
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trial judge ignored the husband's pre-separation retirement and, 

in essence, forced the husband to abandon his retirement and 

reenter the labor market in order to pay more spousal support. I 

would hold that the trial judge erred in failing to give effect 

to the husband's pre-separation retirement. 

 Even if the trial judge had the authority to require the 

husband to abandon his retirement and seek employment, the 

evidence fails to prove that the husband is capable of finding 

employment that will give him additional annual income of 

$40,000. The trial judge's imputation of income to the husband 

was error because it was not based upon current circumstances. 

 The courts of this Commonwealth are empowered 

to assess spousal support awards, not to 

penalize or reward either party to the 

marriage contract, but rather to do equity 

between the two and to protect society's 

interests in the incidents of the marital 

relationship. Code § 20-107[.1] defines 

several standards for balancing the 

respective needs and capacities of the 

husband and wife. The balance must be struck 

and awards made "upon the basis of the 

circumstances disclosed by the evidence at 

the time of the award." 

Jacobs v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 57-58 (1979) 

(citation omitted). The trial judge made an assumption, not 

grounded in the evidence, that the husband could find employment. 

 The evidence proved that when the marriage ended in July 

1991, the husband was receiving income from his Army retirement, 

the BDM pension, and a consulting contract. Furthermore, the 

evidence clearly proved that the part-time consulting contracts 
- 17 - 

were of limited duration, required an insignificant amount of his 

time, and were not voluntarily terminated. 

 During his testimony at the 1994 divorce proceedings, the 

husband testified that the part-time consulting contracts had 

terminated and that he had no income from any consulting 

contracts. He further testified as follows: 

 Q Have you tried to get additional work as 

a consultant? 

 A I have. 

 Q What have you found out in trying to get 

additional work as a consultant? 

 A The defense business is dead. It's hard 

to do particularly when you're out away from 

the government for as long as I've been away. 

 Q Do you have any other skills in the 

marketplace? 

 A Not particularly. 

* * * * * * * 

 Q Why don't you have any gainful 

employment at the present time? 

 A Well, my real expertise is government, 

primarily intelligence, and the Defense 

Department is -- other cutbacks in the 

Defense Department have -- for all intents 

and purposes, budget cuts have eliminated 

most of the areas where I still have some 

expertise, and it's just -- there isn't any. 

In view of the husband's retirement, his further testimony that 

he was not interested in other full-time employment is neither 

surprising nor unreasonable. 

 This evidence is unrebutted. Furthermore, although the 
- 18 - 

 

evidence in the record proved that the husband had the physical 

and mental capacity to work, no evidence proved that the husband, 

age sixty-four at the time of the hearings, was employable. No 

evidence proved that any income-producing employment was 

available for the husband or that other consulting opportunities 

were available. The record contains unrefuted evidence that the 

husband's last two consulting contracts were involuntarily 

terminated. One contract had reached the end of its term and was 

not renewed by the defense contractor; the other terminated 

because of a loss of government funding. 

 On this evidence, the trial judge had no basis upon which he 

could have imputed $40,000 of income to the husband. Indeed, the 

figure seems to be derived from the expired consulting contract 

with ERIM, which provided compensation of $700 per day for 

services through September 30, 1993, for a total amount "not to 

exceed $40,000.00." However, the evidence proved that the 

defense industry, the environment in which the husband's skills 

are most suited, has experienced an economic decline. Both of 

the husband's part-time consulting contracts were with private 

sector defense contractors and were terminated because of loss of 

federal funds. No evidence supports a finding that the husband 

could enter the labor market and earn $40,000. Thus, the trial 

judge's decision imputing income was pure speculation.5

 5Citing Brody v. Brody, 16 Va. App. 627, 432 S.E.2d 20 (1993), 

and Barnhill v. Brooks, 15 Va. App. 696, 427 S.E.2d 209 (1993), 

the majority rules that the trial judge properly used evidence of 

recent past earnings in imputing income. Both of those cases 
- 19 - 

 

 The wife contends that the husband's other activities prove 

that he is capable of engaging in full-time employment. The 

evidence proved that the husband had a long-standing interest in 

parapsychology and psychic phenomena. When he was an Army 

intelligence officer, he became interested in parapsychology and 

pursued its use as an intelligence gathering device. After he 

became Commander of the Army's strategic intelligence programs, 

he caused research to be conducted in these areas and promoted a 

concept called "remote viewing." In his retirement, he continued 

that interest and expends a substantial portion of his time 

investigating psychic phenomena. 

 During his retirement and before his marital separation, the 

husband became a member of the board of directors of a non-profit 

entity, Treatment and Research of Experienced Anomalous Trauma 

(TREAT). The husband testified that TREAT studies, researches, 

and investigates psychic experiences that people report and that 

have no known explanation. As a member of the board of directors 

of this non-profit entity, his expenses for activities with TREAT 

are reimbursed. However, he is not employed by TREAT and 

receives no salary. No evidence proved that any employment 

opportunity was available to him at TREAT. Also, no evidence 

proved that the husband could have obtained employment based on 

involved spouses who voluntarily quit their employment. The 

evidence in this case is undisputed that the husband's contract 

was involuntarily terminated. Thus, I would hold that neither 

Brody nor Barnhill applies to these circumstances. 
- 20 - 

his studies of psychic phenomena. 

 Although the record establishes that the husband now spends 

most of his time pursuing his interests at TREAT, the record also 

establishes that the husband's interest in this matter is 

long-standing, intense, and consuming. The record clearly 

demonstrates that the husband's involvement in TREAT is akin to a 

hobby and provides him intellectual challenges and 

self-fulfillment. Proof that the husband has an interest that 

intellectually stimulates him and consumes his time in retirement 

does not provide a basis to assume that the husband had abandoned 

his retirement. Also, proof of the husband's good health and 

ability to contribute to society should not preclude his planned 

retirement. 

 Human experience teaches us that many people have 

long-standing plans to retire after a long employment career. 

Married couples often anticipate and expect to reduce their 

lifestyle and financial requirements. Where, as in this case, 

the working spouse has retired prior to separation and 

dissolution of the marriage, the decision to impute income to the 

working spouse is plainly wrong, absent some proof of bad faith. 

 Moreover, evidence that the retired spouse remains active in the 

pursuit of hobbies and intellectual interests provides no basis 

to conclude that the spouse is "working." A spouse should not be 

penalized for pursuing his or her interests if they do not 

produce any income, cannot produce income, are unorthodox, or are 
- 21 - 

even unpopular to others. By imputing a speculative amount of 

income, the decision penalizes lifestyle, where it is clear no 

such imputation would have been made had the retired spouse sat 

around, done nothing, and degenerated. 

 So long as the retirement decision was made in good faith, 

the decision to pursue interests in parapsychology, psychic 

phenomena, animal communications, and the like, must remain the 

choice of the retired person. The majority opinion would 

essentially establish a precedent that a spouse of a retired 

person whose marriage has disintegrated may force the retired 

spouse to reenter the work force and work to an uncertain age to 

restore a lifestyle that predictably ended. Absent evidence of 

bad faith, nothing in Code § 20-107.1 authorizes judges to 

interfere with decisions made by spouses in a marriage to retire 

at some point in their lives, to participate in interests special 

to them, and enjoy benefits for which they have worked their 

entire lives. Such a policy is not one recognizing a 

surreptitious intent to deny income to another spouse, but, 

rather, recognizes that retirements do happen and that retired 

persons have a right to do absolutely nothing or anything unique 

in accordance with their abilities. 

 The record clearly established that the husband retired from 

two careers during the marriage and has spent his retirement 

consulting two to four days a month until his contracts were 

ended by federal funding cutbacks to defense contractors. He now 
- 22 - 

spends a substantial portion of his time pursuing his interests 

in unusual psychic phenomena, an interest that he pursued for its 

intelligence potential while with the United States Army 

Intelligence and Security Command. 

 The evidence further proved that the husband's combined 

monthly retirement pay was $6,204, consisting of $5,432 from the 

Army and $772 from BDM. The wife received approximately one-half 

of the husband's total retirement pay. The evidence proved that 

she has monthly income of $3,058 from the husband and income from 

interest earned on her investments. Thus, the evidence does not 

support a claim by the wife that she is impecunious or destitute. 

 The record contains no evidence that the husband retired 

with the purpose of reducing his income to avoid or lessen 

spousal support payments. Indeed, the wife neither alleged nor 

proved bad faith. Moreover, the trial judge made no such 

findings. Thus, I would hold that the trial judge erred in 

imputing $40,000 additional annual income to the retired husband 

and in awarding the wife $1,000 in monthly spousal support so as 

to increase her monthly income from the husband to $4,058. 
- 23 - 

Elder, J., with whom Willis and Bray, JJ., join, dissenting. 

 As this Court has recognized, a spouse's entitlement to 

support and the amount of the award are matters committed to the 

sound discretion of the trial court. Steinberg v. Steinberg, 11 

Va. App. 323, 329, 398 S.E.2d 507, 510 (1990). We will not 

disturb the trial court's decision unless some injustice has been 

done. Id. Based upon the evidence in the record, I would hold 

that the trial court abused its discretion when it imputed 

$40,000 in annual income to Albert Stubblebine (husband) and 

ordered him to pay Geraldine Stubblebine (wife) $1,000 in monthly 

spousal support. 

 Although neither this Court nor the Supreme Court of 

Virginia has previously so pronounced, I would hold that a trial 

court has the discretionary authority, under the proper 

circumstances, to require a spouse to abandon his or her 

retirement and to seek appropriate employment. A trial court's 

discretionary authority to impute income should not be precluded 

simply because the obligor spouse has retired in good faith. 

Rather, the trial court's discretionary determination must depend 

on the evidence adduced at trial, taking into account the 

parties' financial needs and current earning abilities. See Pimm 

v. Pimm, 568 So.2d 1299, 1301 (Fla. Dist. Ct. App. 1990), 

approved, 601 So.2d 534 (Fla. 1992); Avery v. Avery, 548 So.2d 

865, 866 (Fla. Dist. Ct. App. 1989). In this case, several key 

pieces of evidence reveal that the trial court abused its 
- 24 - 

discretion in imputing income to husband and ordering him to pay 

$1,000 per month to wife in spousal support. 

 I. 

 First, the trial court failed to give proper weight to the 

uncontested fact that husband retired twice before the parties 

separated. Wife presented no evidence that she objected to 

husband's retirement from the Army or from BDM. As Judge Benton 

observed in his dissent from the panel decision, "when 

considering the factors under Code § 20-107.1, [a trial court] 

may not ignore a party's 'long-standing' career decision to 

retire, albeit an early retirement." Stubblebine, 21 Va. App. at 

647, 466 S.E.2d at 770 (Benton, J., dissenting). Neither may a 

trial court ignore the dependent spouse's acquiescence in that 

decision. Judge Benton's dissent accurately summarizes the facts 

and reaches the following conclusion, with which I agree: 

 This case is not one in which the 

husband retired post-divorce or had an 

expectation of future retirement. The facts 

prove that the husband had already retired 

and the parties were living upon the 

husband's post-retirement income when they 

separated and later were divorced. If the 

parties had remained married, both would have 

shared in the change in lifestyle that 

resulted from the husband's diminished 

income. Nothing in this record justifies 

granting the wife a support award based upon 

a projection of earnings as if the husband 

had not retired. The trial judge ignored the 

husband's pre-separation retirement and, in 

essence, forced the husband to abandon his 

retirement and reenter the labor market in 

order to pay more spousal support. I would 

hold that the trial judge erred in failing to 

give effect to the husband's pre-separation 
- 25 - 

retirement. 

 II. 

 Second, the trial court erred in imputing $40,000 annual 

income to husband because the imputation was not based upon 

current circumstances. Spousal support awards must be made "upon 

the circumstances disclosed by the evidence at the time of the 

award." Thomas v. Thomas, 217 Va. 502, 505, 229 S.E.2d 877, 

889-90 (1976). Nothing in the record proved that husband could 

find employment comparable to his employment with ERIM, which had 

paid him $40,000 annually. In fact, the record contains no 

information about current employment opportunities available to 

husband. 

 This case differs, therefore, from Brody v. Brody, 16 Va. 

App. 647, 432 S.E.2d 20 (1993). In Brody, the mother voluntarily 

left a $54,000 per year job with the federal government to raise 

her children. The father petitioned the trial court for a 

spousal support award, asking the court to impute to mother her 

prior income. We reversed the trial court's denial of the 

father's petition, holding in part that the father produced 

sufficient evidence to allow the trial court to project the 

amount of earnings the wife would have earned had she continued 

in her employment. Id. at 651, 432 S.E.2d at 22. We explained 

that because the father produced evidence that the mother had 

just earned $54,000 per year before voluntarily leaving her job, 
- 26 - 

the trial court had sufficient evidence with which to impute 

income. Id. See also Barnhill v. Brooks, 15 Va. App. 696, 427 

S.E.2d 209 (1993)(holding that the trial court, in arriving at 

the amount of income to impute to the father, properly considered 

the father's income from his prior job, which the father had 

voluntarily left). By contrast, in this case, husband's most 

recent employment (with ERIM in 1993) ended not because of 

husband's voluntary choice, but because his consulting contract 

expired. 

 Furthermore, the evidence of husband's recent past earnings 

was of limited worth considering the rapid deterioration of the 

defense industry in which husband was previously employed. 

Husband testified at trial that "[t]he defense business is dead. 

 It's hard to [find work as a consultant] particularly when 

you're out away from the government for as long as I've been 

away." Testimony revealed that husband had few other marketplace 

skills. Furthermore, wife presented absolutely no evidence to 

refute husband's evidence. Again, Judge Benton's dissent 

summarizes the important facts and circumstances regarding this 

issue: 

 [N]o evidence proved that the husband, age 

sixty-four at the time of the hearings, was 

employable. No evidence proved that any 

income-producing employment was available for 

the husband or that other consulting 

opportunities were available. The record 

contains unrefuted evidence that the 

husband's last two consulting contracts were 

involuntarily terminated. . . . 
- 27 - 

 On this evidence, the trial judge had no 

basis upon which he could have imputed 

$40,000 of income to the husband. Indeed, 

the figure seems to be derived from the 

expired consulting contract with ERIM, which 

provided compensation of $700 per day for 

services through September 30, 1993, for a 

total amount "not to exceed $40,000.00." 

However, the evidence proved that the defense 

industry, the environment in which the 

husband's skills are most suited, has 

experienced an economic decline. Both of the 

husband's part-time consulting contracts were 

with private sector defense contractors and 

were terminated because of loss of federal 

funds. No evidence supports a finding that 

the husband could enter the labor market and 

earn $40,000. Thus, the trial judge's 

decision imputing income was pure 

speculation. 

See Srinivasan v. Srinivasan, 10 Va. App. 728, 396 S.E.2d 675 

(1990). 

 III. 

 Third, the trial court based its order on the out-dated 

financial needs of wife. The evidence proved that, at the time 

of trial on March 8-10, 1994, wife had a monthly income of $3,058 

from her share of husband's two retirement pensions. At trial, 

wife presented an expense sheet which revealed total monthly 

expenses of $6,051.96. The trial court determined that wife's 

monthly expenses totaled approximately $5,200 per month, a figure 

that excluded wife's attorney's fees in consideration of the 

trial court's order that husband pay wife's attorney's fees. The 

trial court awarded wife $1,000 in monthly spousal support, which 

increased her monthly income to $4,058. 

 As husband correctly argues, the trial court calculated its 
- 28 - 

award based on figures that were not current, thereby abusing its 

discretion in concluding that husband should pay $1,000 in 

monthly spousal support to wife. See Srinivasan, 10 Va. App. at 

735, 396 S.E.2d at 679 (stating that a spousal support award must 

be based upon current circumstances). The trial court failed to 

adjust wife's monthly expenses downward based on wife's own 

evidence. For example, wife testified that the following 

expenses were far less than those listed on her expense sheet 

(and in some instances nonexistent): food, maid service, yard 

work, car payments, car repair, car insurance, property repair 

and maintenance, clothing, and entertainment and vacations. 

Additionally, wife admitted that the majority of her expense 

sheet reflected expenses based on the year 1991, not 1994. 

 While generally a spouse entitled to support should be 

maintained in the style to which he or she was accustomed during 

the marriage, consistent with the other spouse's ability to pay, 

retirement at a normal age is an expected event. When this 

occurs, during the marriage or thereafter, both the husband and 

the wife frequently encounter somewhat lower standards of living. 

 This does not mean that when one spouse is physically and 

mentally able to work at readily available employment, the needy 

spouse must live a life of destitution to accommodate the retired 

spouse's desire to remain retired. However, a spouse who has 

taken a legitimate, regular retirement at an appropriate age 

should not have income imputed to him or her simply to 
- 29 - 

accommodate the other spouse's desire to maintain more than a 

comfortable lifestyle, albeit somewhat less lavish than that 

enjoyed prior to the supporting spouse's retirement. 

 While wife suffers from several chronic illnesses and is 

unable to work, she was not shown to be impecunious or destitute 

or to have a substantial need for $1,000 per month additional 

spousal support. Wife owns a house valued at approximately 

$410,000, in which she has equity of $219,000. Furthermore, 

wife's daughter, son-in-law, and grandchildren live with wife in 

that house, and while they provide for wife's food and some other 

expenses, no evidence proved that they paid wife rent or other 

remuneration reflecting the privilege of living in wife's house. 

 For the foregoing reasons, I would reverse the trial court's 

decision.