COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

EDITH P. LANE DOTSON 

 OPINION BY 

v. Record No. 0405-95-3 JUDGE LARRY G. ELDER 

 JANUARY 21, 1997 

JIMMY A. DOTSON 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Nicholas E. Persin, Judge 

 Robert M. Galumbeck (Galumbeck, Simmons & 

Reasor, on brief), for appellant. 

 No brief or argument for appellee. 

 By final decree entered February 2, 1995, Edith P. Lane 

Dotson was awarded a divorce from her husband, Jimmy A. Dotson, 

on the ground of adultery. The trial court awarded wife a lump 

sum of $1.8 million, the parties' lake residence, various 

personalty, and attorney's fees. The judge also ordered husband 

either to provide health insurance for wife or to pay wife the 

cost of her health insurance, in the amount of $425 per month. 

 Wife contends the trial court improperly consolidated 

equitable distribution and spousal support considerations in 

deciding to award her the $1.8 million lump sum. She argues the 

trial court erred in failing to designate the lump sum award as 

either spousal support or as a monetary award and argues that if 

the award was intended as a monetary award, the support award was 

insufficient. Alternatively, she argues that if the award was 

intended as support, the monetary award was inequitable. Wife 

also contends that in determining the award, the judge (1) failed 
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to consider all of the statutory factors; (2) failed to consider 

the income husband's mining business would produce; and (3) erred 

in assuming wife could support herself from the lump sum award. 

For the following reasons, we reverse the lump sum award and 

remand the case for further consideration. 

 I. 

 Husband and wife were married in 1961. Throughout the 

marriage, husband was self-employed in the coal mining industry. 

 Wife was the homemaker and occasionally worked as a substitute 

teacher when their children were minors. She also kept the books 

for the parties' farm, helped with the bookkeeping for husband's 

business, and frequently picked up parts for the business. 

 The evidence proved that the parties ceased having sexual 

relations nineteen years ago after the wife had an operation. 

The evidence also proved husband engaged in an adulterous 

relationship for ten to fifteen years prior to 1992 when wife 

filed for divorce. The trial court found that the husband's 

conduct caused the marriage to end. 

 In conjunction with the equitable distribution hearing, the 

parties stipulated that the value of their marital estate was 

$5,312,150. The marital estate included the parties' farm, 

valued between $210,000 and $240,000, the marital home, valued at 

$55,000, the parties' lake house, valued at $38,000, and 

certificates of deposit valued at $3,567,350. The marital estate 

also included husband's coal company, the net asset value of 
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which the parties stipulated was $689,267. 

 Evidence proved that the parties filed joint income tax 

returns and reported income of $988,000 in 1987. Their income 

declined to $428,000 in 1992. Wife submitted an expense sheet 

reflecting monthly expenses of $4,218.35 after separation. She 

also testified that health insurance would cost $425 per month. 

 The trial court granted wife a divorce from husband on the 

ground of adultery. In consideration of "the factors . . . in 

[Code] Sections 20-107.3 and 20-107," the trial court awarded 

wife a "lump sum" of $1.8 million, the lake residence, and other 

property. The trial court also ordered husband either to provide 

wife health insurance or pay her $425 per month, the current cost 

of her health insurance. The trial court also ordered the 

parties to establish three large trust funds for their adult 

children consistent with an agreement the parties made, and 

granted other relief. 

 The trial court stated that in making the award he had 

considered wife's health and the effect of husband's adultery on 

wife, the lifestyle the parties maintained, the earnings the 

parties received from husband's mining business, and the fact 

that mining was an unpredictable industry and was not likely to 

generate in the future the kind of income the parties had enjoyed 

previously. In declining to grant wife's motion for 

reconsideration and make an additional support award, the trial 

court explained that the lump sum would allow wife both to save a 
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substantial portion of the award and also to earn a return 

through investment. The trial court stated that the lump sum 

award was equitable "in construing the spousal support statute 

and the equitable distribution statute" and further stated, "I 

was considering . . . giving her less lump sum and [making] an 

award of spousal support, but . . . I felt . . . it would be 

better to give her a lump sum of money and let her cut the ties 

with Mr. Dotson and not be worried about whether her spousal 

support check is going to be coming in every month. But if I had 

[made an award of spousal support], I would have lowered the lump 

sum award." The trial judge also stated his understanding that 

the court was not required to distinguish whether its lump sum 

award was intended as support or as distribution. 

 II. 

 "A distinct difference . . . exists between a spousal 

support award and a monetary award." Brown v. Brown, 5 Va. App. 

238, 246, 361 S.E.2d 364, 368 (1987). 

 Spousal support involves a legal duty flowing 

from one spouse to the other by virtue of the 

marital relationship. By contrast, a 

monetary award does not flow from any legal 

duty, but involves an adjustment of the 

equities, rights and interests of the parties 

in marital property. 

Id. "[T]he amount of support is based on current needs of the 

spouse . . . and the ability of the other spouse . . . to pay 

from current assets." Williams v. Williams, 4 Va. App. 19, 24, 

354 S.E.2d 64, 66 (1987). "The income of the party who is 
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required to pay, however such income is derived or derivable, is 

the fund from which the allowance [for support] is made." Ray v. 

Ray, 4 Va. App. 509, 513, 358 S.E.2d 754, 756 (1987). "The 

`equitable distribution' statute, however, is intended to 

recognize a marriage as a partnership and to provide a means to 

equitably divide the wealth accumulated during and by that 

partnership." Williams, 4 Va. App. at 24, 354 S.E.2d at 66. 

 Under the statutory scheme, the trial judge must consider 

its equitable distribution award in fashioning a support award, 

but consideration of spousal support is improper when making an 

equitable distribution award. See Code § 20-107.3(F) (monetary 

award must be determined without regard to support); Code 

§ 20-107.1(8) (in determining amount of support award, court must 

consider, inter alia, provisions made with regard to the 

distribution of marital property); see also Kaufman v. Kaufman, 

7 Va. App. 488, 493-94, 375 S.E.2d 374, 377 (1988) (court cannot 

determine parties' relative needs and abilities until after it 

determines the monetary award). 

 The trial judge's initial opinion letter and the final 

decree state that the judge considered both the statutory factors 

relating to the determination of a support award, Code 

§ 20-107.1, and the factors relating to the determination of a 

monetary award, Code § 20-107.3(E), in determining the amount of 

the lump sum. The court further stated that he gave her a lump 

sum so that she would "not be worried about whether her spousal 
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support check is going to be coming in every month." It is 

apparent that the trial judge either considered support as a 

factor in determining the equitable distribution award or lumped 

together the equitable distribution award and a lump sum spousal 

 support award, either of which was erroneous. Furthermore, in 

denying wife's motion for reconsideration of periodic support, 

the trial court stated that he considered awarding wife periodic 

support and would have granted her a smaller lump sum if he had 

made separate awards. 

 In failing to distinguish spousal support from property 

distribution as required by the statutory framework, the trial 

court committed reversible error. Treating the property 

distribution award and spousal support award as one not only 

reflects an erroneous application of the law but also precludes 

principled review. Accordingly, the decision of the trial court 

is reversed and the case is remanded for a redetermination of 

both the equitable distribution award and the spousal support 

award.1

Reversed and remanded.

 

 1We do not find it necessary to address the other issues 

raised because a redetermination of the equitable distribution 

award will necessarily require the trial judge to reconsider 

spousal support and the statutory factors relating thereto. 
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Annunziata, J., concurring. 

 I concur in the opinion of the majority that the trial court 

erred in awarding wife a "lump sum," representing both an 

equitable distribution award and a spousal support award. 

However, I agree with wife's contention that the court clearly 

erred as well in its consideration of certain factors relating to 

spousal support, whatever amount the court intended its support 

award to be. These issues will be of import on remand because, 

in my opinion, such error would require reversal irrespective of 

the reversible error the majority addresses. See Keyser v. 

Keyser, 7 Va. App. 405, 414-15, 374 S.E.2d 698, 703-04 (1988). 

Accordingly, I write separately to address those issues. 

 In determining spousal support, the trial court must 

consider all of the statutory factors set forth in Code 

§ 20-107.1. Keyser, 7 Va. App. at 414-15, 374 S.E.2d at 703-04. 

 Failure to do so is reversible error. Bristow v. Bristow, 221 

Va. 1, 3, 267 S.E.2d 89, 90 (1980). Among other things, 

 "the court must look to the financial needs 

of the wife, her age, physical condition and 

her ability to earn, and balance against 

these circumstances the financial ability of 

the husband to pay, considering his income 

and ability to earn." 

Via v. Via, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992) 

(quoting Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106 
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(1962)); see also Code § 20-107.1(1). 
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 A. 

 "Income producing property conveyed pursuant to Code 

§ 20-107.3 would alter the needs of one party and the ability of 

the other party to pay spousal support." Gamble v. Gamble, 14 

Va. App. 558, 577, 421 S.E.2d 635, 646 (1992). Thus, the court 

must consider income which may be produced by a monetary award in 

determining spousal support. Kaufman v. Kaufman, 7 Va. App. 488, 

493, 375 S.E.2d 374, 377 (1988). However, a court may not 

consider the corpus of a monetary award as income to the 

receiving spouse. Ray v. Ray, 4 Va. App. 509, 513, 358 S.E.2d 

754, 756 (1987). The law does not require a spouse, who is 

possessed of a sizeable estate in his or her own right, "`to 

invade that estate to relieve the obligation of her former 

[spouse] whose actions have brought an end to their marriage.'" 

Id. at 514, 358 S.E.2d at 757 (quoting Klotz, 203 Va. at 680, 127 

S.E.2d at 106); see also Zipf v. Zipf, 8 Va. App. 387, 398-99, 

382 S.E.2d 263, 269-70 (1989) ("[A] decree which singles out 

[Code § 20-107.1(8)] to the exclusion of others, and which 

essentially treats the support-seeking spouse's marital assets as 

income, cannot withstand scrutiny on appeal"). 

 Here, while the court expected wife to reinvest part of the 

lump sum and support herself with the proceeds, no evidence 

showed, and the court made no finding with respect to, what 

amount of income, if any, the funds were likely to produce. 

Thus, it is impossible to determine the extent to which the trial 
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court properly considered the income which the lump sum would 

produce in the future and the extent to which the court 

improperly assumed wife could invade her share of the marital 

estate to support herself.2

 It is clear, however, that the court 

could not properly have considered the parties' relative needs 

and their relative abilities to meet those needs in the absence 

of evidence which established the income the lump sum could 

produce. The failure to properly consider these factors is 

error. See Code § 20-107.1(1); Via, 14 Va. App. at 870, 419 

S.E.2d at 433. 

 B. 

 Furthermore, a support award which allows one party to 

approximate more closely the "station of life" enjoyed during the 

marriage while necessarily and materially diminishing that of the 

other party, is improper in the absence of evidence directing 

such a result. See Code § 20-107.1(3); Via, 14 Va. App. at 870, 

419 S.E.2d at 433 (a support award should, within the limits of 

the payor spouse's ability to pay, maintain the payee spouse 

"according to the station of life to which she [or he] was 

accustomed during the marriage"). 

 While a party's comparative financial 

condition before marriage and after divorce 

may demonstrate one's ability to support 

oneself, the court must consider the needs of 

each spouse in relation to each party's 

ability to provide for those needs and the 

 

 2This impossibility is compounded, of course, by the fact 

that we are unable to determine what amount of the lump sum, if 

any, represents support and what amount represents a money award. 
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other spouse's ability or resources to 

provide for those needs. The station to 

which a party may have grown accustomed 

during marriage is to be considered in 

determining support. 

Keyser, 7 Va. App. at 413-14, 374 S.E.2d at 703-04 (citation 

omitted); Homer H. Clark Jr., The Law of Domestic Relations in 

the United States 427 (2d. ed. 1987) (A spouse is not limited to 

receiving support which covers only the necessities of food, 

clothing, and shelter. To the extent the payor spouse is able to 

supply them, the recipient is entitled to have the comforts and 

even the luxuries of life). 

 The evidence in this case fails to support the conclusion 

that the trial court properly considered the parties' stations in 

life in light of their relative abilities to meet their support 

obligations. The court assumed wife's support needs would be 

fully met from the income or corpus of the lump sum. In so 

doing, the court failed to consider husband's income producing 

property and his ability to earn income from his mining 

operations as sources of support for wife. While the court's 

lump sum award left each party approximately $1.8 million in 

certificates of deposit, the court assumed wife's share would 

earn income but disregarded the potential income husband's share 

could produce. The court's distribution also left husband the 

income his mining operations would earn, which the record shows 

was between $1 million and $256,000 per year from 1989 to 1992. 

Thus, the income producing value of husband's post-divorce estate 
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would remain intact and his business income unburdened, while 

wife's estate would effectively erode. 

 While a post-divorce reduction in each party's station in 

life may be expected under the facts of this case, the court's 

disparate treatment of the parties' estates and incomes in 

determining spousal support makes manifest the likelihood of a 

disproportionate change in wife's post-divorce station of life. 

Such disparate treatment is not supported by the evidence or the 

court's findings and is, therefore, erroneous. See, e.g., 

Keyser, 7 Va. App. at 414-15, 374 S.E.2d at 703-04. 

 C. 

 Finally, the trial court excluded husband's business income 

from its determination of the lump sum award because it found 

that mining in that part of the state is unpredictable and 

unlikely to yield similarly high returns in the future. However, 

"in setting support awards, [the court] must look to current 

circumstances and what the circumstances will be `within the 

immediate or reasonably foreseeable future,' not what may happen 

in the future." Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 

396 S.E.2d 675, 679 (1990). An award "`premised upon the 

occurrence of an uncertain future circumstance . . . ignores the 

design and defeats the purpose of the statutory scheme.'" Payne 

v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987) 

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

(1979)). Thus, the court improperly speculated as to the demise 
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of husband's mining operations. 

 I would direct the court to consider these factors on 

remand.