COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Salem, Virginia 

LOIS MARIE SIRRY PETERSON 

v. Record No. 0451-94-3 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

DONALD EUGENE PETERSON JUNE 20, 1995 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Kenneth E. Trabue, Judge 

 J. Emmette Pilgreen, IV (Harvey S. Lutins; Lutins & 

 Shapiro, on briefs), for appellant. 

 G. Marshall Mundy (Cheryl Watson Smith; Mundy, Rogers & 

 Frith, on brief), for appellee. 

 Lois Marie Sirry Peterson appeals the circuit court's ruling 

that terminated her monthly spousal support payments from her 

former husband, Donald Peterson. She contends that the trial 

court erred by (1) failing to impute pre-retirement income to the 

husband for spousal support and (2) finding sufficient changed 

circumstances to terminate the spousal support award. Assuming 

without deciding that the trial court erred by failing to impute 

to the husband his pre-retirement income as the basis for his 

ability to pay support, nevertheless, because the evidence shows 

that the wife's income had significantly increased within the 

five years following the support award and because she is fully 

self-supporting, on the facts of this case, the trial court did 

not err by terminating the support award. 

 

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

designated for publication. 
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 On appeal, we view the evidence and all reasonable 

inferences therefrom in the light most favorable to the 

prevailing party below. Alphin v. Alphin, 15 Va. App. 395, 399, 

424 S.E.2d 572, 574 (1993). A presumption exists that the trial 

judge based his decision on the evidence presented and properly 

applied the law. Williams v. Williams, 14 Va. App. 217, 221, 415 

S.E.2d 252, 254 (1992) (quoting Brown v. Commonwealth, 8 Va. App. 

126, 133, 380 S.E.2d 8, 12 (1989)). Furthermore, a trial judge's 

findings will not be disturbed on appeal unless plainly wrong or 

without evidence to support it. Jennings v. Jennings, 12 Va. 

App. 1187, 1188, 409 S.E.2d 8, 10 (1991). 

 The parties were married February 23, 1963. They were 

divorced January 6, 1989. The property was equitably 

distributed. Mr. Peterson was ordered to pay $1000 per month 

spousal support. Near the time of the divorce, in 1988, 

Mr. Peterson earned approximately $78,447 and Mrs. Peterson 

earned approximately $47,000. 

 In 1989, both parties petitioned the court for modification 

of support. Both petitions were denied. Mr. Peterson remarried, 

and by March, 1992, his second wife had developed colon cancer. 

Mr. Peterson's employer, Norfolk Southern, offered an early 

retirement option to its employees. Mr. Peterson was fifty-eight 

years old. Due to his wife's illness, Mr. Peterson took the 

early retirement option. 

 After retiring, Mr. Peterson petitioned the court for 
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termination of his spousal support based on changed 

circumstances. Lois Peterson petitioned to increase her spousal 

support award. After two ore tenus hearings and the receipt of 

legal memoranda, the trial court terminated the spousal support 

award. Lois Peterson's income at the time was approximately 

$64,500 from wages and an additional $9,000 in interest and 

dividend income. Mr. Peterson's retirement income was 

approximately $40,000. His pre-retirement income had been 

approximately $84,000. 

 Code § 20-109 states: "Upon petition of either party the 

court may increase, decrease or terminate spousal support and 

maintenance that may thereafter accrue, whether previously or 

hereafter awarded, as the circumstances may make proper." 

(Emphasis added). A court may not only modify spousal support, 

but may terminate it if "changed circumstances" are demonstrated 

which justify termination. See Thomas v. Thomas, 217 Va. 502, 

505, 229 S.E.2d 887, 889-90 (1976). 

 "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." Jacobs v. Jacobs, 219 Va. 993, 995, 254 

S.E.2d 56, 57-58 (1979). When determining whether to modify or 

terminate spousal support, a trial court balances the factors 

contained in Code § 20-107.1 (formerly Code § 20-107), among 
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which are the incomes, assets, and earning capacities and 

respective needs and obligations of both parties. "Code § 20-107 

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.' Code § 20-109 grants 

courts continuing jurisdiction to modify awards 'where changed 

circumstances are demonstrated.'" Id. (citation omitted). "This 

statutory scheme recognizes that comparative needs and capacities 

change as circumstances change, that changes are not fairly 

predictable, and that spousal support awards must be determined 

in light of contemporary circumstances and then, if necessary, 

redetermined in light of new circumstances." Jacobs v. Jacobs, 

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

 Two of the elements to be considered in a changed 

circumstances analysis are the ability to pay and the need to be 

paid. Floyd v. Floyd, 1 Va. App. 42, 45, 333 S.E.2d 364, 366 

(1985). Additionally, however, Code § 20-107.1 requires that the 

trial courts consider: 

 1. The earning capacity, obligations, needs 

and financial resources of the parties, 

including but not limited to income from all 

pension, profit sharing or retirement plans, 

of whatever nature; 

 2. The education and training of the parties 

and the ability and opportunity of the 

parties to secure such education and 

training; 

 3. The standard of living established during 

the marriage; 

 4. The duration of the marriage; 

 5. The age and physical and mental condition 
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of the parties; 

 6. The contributions, monetary and 

nonmonetary, of each party to the well-being 

of the family; 

 7. The property interests of the parties, 

both real and personal, tangible and 

intangible; 

 8. The provisions made with regard to the 

marital property under § 20-107.3; and 

 9. Such other factors, including the tax 

consequences to each party, as are necessary 

to consider the equities between the parties. 

Code § 20-107.1. 

 Lois Peterson contends that the trial court erroneously 

terminated her spousal support. She argues that because her 

husband elected early retirement, the case of Antonelli v. 

Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991), and its progeny 

justify reversal of the trial court's decision. While we agree 

that in certain cases, a court must impute income, we do not find 

the imputation of income issue to be dispositive of this case. 

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

Regardless of the trial court's treatment of the earning capacity 

issue, Mrs. Peterson's dramatic increase in actual earnings 

justifies the trial court's decision. 

 At the time of the parties' divorce in 1988, Mrs. Peterson 

earned wages of approximately $47,000. By the time of the trial 

court's decision, she was earning approximately $64,500 in wages. 

 Mrs. Peterson also had interest and dividend income of 

approximately $9,000 in 1993. One of the reasons stated by the 

trial court for termination was "her salary." A trial court is 

given wide discretion when determining spousal support. See
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Gamble v. Gamble, 14 Va. App. 558, 574-75, 421 S.E.2d 635, 645 

(1992). No evidence indicates that she was worse off at the time 

of the hearing than when she was married, nor does the evidence 

support the view that she was entitled to the imputed income 

portion of Mr. Peterson's salary. By all indications, her 

standard of living had improved after divorce. The trial court 

did not abuse its discretion when it terminated spousal support. 

Affirmed.