COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Hodges 

Argued at Salem, Virginia 

HERMAN NORRIS ELLIOTT 

 MEMORANDUM OPINION* BY 

v. Record No. 2921-95-3 JUDGE JOHANNA L. FITZPATRICK 

 JULY 16, 1996 

JOSEPHINE ALPHA JACOBS ELLIOTT 

 FROM THE CIRCUIT COURT OF THE CITY OF SALEM 

G. O. Clemens, Judge 

 John W. Acree (Jolly, Place, Fralin & 

Prillaman, P.C., on brief), for appellant. 

 Chris K. Kowalczuk (Richard Lee Lawrence & 

Associates, on brief), for appellee. 

 In this domestic relations appeal, Herman Norris Elliott 

(husband) argues that the trial court erred in finding him to be 

underemployed and in finding his new salary sufficient to 

continue to pay spousal support of $75 per week to Josephine 

Alpha Jacobs Elliott (wife). He further argues that the trial 

court erred in awarding attorney's fees to wife. For the reasons 

that follow, we affirm. 

BACKGROUND

 In a final decree dated September 29, 1994, the trial court 

ordered husband to pay $75 per week in spousal support to wife 

and awarded each party his or her own retirement benefits. On 

June 23, 1995, husband moved for a reduction in spousal support. 

 The trial court denied husband's request and found that: (1) 

 

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

designated for publication. 
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husband's voluntary underemployment did not support a reduction, 

and (2) husband had sufficient income to pay the spousal support 

as ordered. The trial court also awarded attorney's fees to 

wife. Husband filed a motion to reconsider, and a second hearing 

was held on October 26, 1995. 

 The evidence established that husband worked for Elizabeth 

Arden for over twenty-nine years. In January 1995, he received a 

"Voluntary Retirement Incentive Program" memorandum from his 

employer, offering him the opportunity for early retirement. 

Husband chose to participate in the early retirement program 

because he anticipated that Elizabeth Arden might eliminate his 

job. Upon husband's retirement, his enhanced retirement benefits 

totaled $220,336.45. Husband opted to receive his retirement 

benefits in a lump sum, rather than in monthly installments. 

 After retiring, husband obtained a new job with Hanover 

Direct, where he earns $8 per hour and approximately $377 per 

week. Additionally, husband withdrew money from a separate 

401(k) account worth $120,000 to make spousal support payments. 

Wife's monthly income is $1,326.98, and her expenses total 

$1,664.85. 

 At the hearing on October 26, 1995, the trial judge found, 

inter alia, that the $75 per week spousal support previously 

ordered was not excessive when husband's salary was over $300 per 

week and that husband "had the ability to pay that amount" for 

spousal support. Additionally, he found that husband was 
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voluntarily underemployed and stated as follows: 

 He chose early retirement and he chose not to 

receive any income from his early retirement, 

and that is his choice, but it has caused him 

to not have as much income available to him 

as he could have had under other means. 

In a December 4, 1995 order, the trial court denied husband's 

motion for a reduction in spousal support. 

 SPOUSAL SUPPORT

 Husband contends that the trial court erred in finding that 

he was voluntarily underemployed and in determining that his 

current income is sufficient to pay spousal support. Husband 

claims that he is forced to use his retirement benefits to make 

spousal support payments. 

 "'[T]he decision to award spousal support rests within the 

sound discretion of the trial court.'" L.C.S. v. S.A.S., 19 Va. 

App. 709, 714, 453 S.E.2d 580, 583 (1995) (quoting Via v. Via, 14 

Va. App. 868, 870, 419 S.E.2d 431, 433 (1992)), cert. denied, ___ 

 U.S. ___, 116 S. Ct. 1360 (1996). "Once evidence is produced 

that a [spouse] chose to leave his or her employment without 

being discharged, a trial court may infer that the unemployment 

was voluntary." Brody v. Brody, 16 Va. App. 647, 650, 432 S.E.2d 

20, 22 (1993). "The burden of proof is upon that [spouse] to 

explain why his or her unemployment or underemployment was not 

'voluntary.'" Id. "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 
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decision was reasonable and made in good faith." Stubblebine v 

Stubblebine, 21 Va. App. 635, 640, 466 S.E.2d 764, 766 (1996), 

reh'g en banc granted, Mar. 22, 1996. 

 Although the trial court addressed the issue of husband's 

voluntary reduction in income, it did not impute any income to 

husband in the instant case. The court simply evaluated the 

ability of husband to continue to make his spousal support 

payments with his lower salary. The trial court's finding that 

husband's current salary of $377 a week was sufficient to pay $75 

in spousal support was supported by the evidence. The denial of 

husband's request for a reduction was not an abuse of discretion. 

 ATTORNEY'S FEES

 Husband also argues that the trial court erred in awarding 

attorney's fees to wife. "'An award of attorney fees is a matter 

submitted to the trial court's sound discretion and is reviewable 

on appeal only for an abuse of discretion.'" L.C.S., 19 Va. App. 

at 721, 453 S.E.2d at 587 (quoting Graves v. Graves, 4 Va. App. 

326, 333, 357 S.E.2d 554, 558 (1987)). Under the circumstances 

of this case, we can find no abuse of discretion by the trial 

court. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.