COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

RICHARD F. MORENO 

 OPINION BY 

v. Record No. 0972-96-4 JUDGE JOHANNA L. FITZPATRICK 

 FEBRUARY 11, 1997 

PATRICIA E. MORENO 

 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Dennis J. Smith, Judge 

 Alan M. Winterhalter (Alan M. Winterhalter & 

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

 (Carl P. Horton, on brief), for appellee. 

Appellee submitting on brief. 

 Richard F. Moreno (husband) appeals the decision of the 

trial court denying a request to terminate his spousal support 

obligation to Patricia E. Moreno (wife). He contends that the 

trial court erred in using income from his previously divided 

government pension as a source of funds to pay spousal support. 

Finding no error, we affirm the judgment of the trial court. 

I. BACKGROUND

 The facts of this case are not in dispute. The parties were 

married in 1970, separated in 1990, and divorced in 1992. The 

final decree of divorce, entered June 15, 1992, incorporated the 

parties' property settlement agreement (Agreement). Included in 

the Agreement were provisions requiring husband to pay spousal 

support and provisions distributing the marital portions of 

husband's pensions.1

 

 

 1The final decree of divorce "ratified, adopted and 
 

 2 

incorporated" the parties' Agreement, and provides in pertinent 

part as follows: 

 3 B. (1) The Husband agrees to pay to 

the Wife, for her support and maintenance, Two 

Thousand Six Hundred Dollars ($2,600) per 

month . . . . 

 3 B. (2) The obligation of the Husband 

to pay spousal support to the Wife shall 

terminate on the first to occur of: (a) the 

death of the Husband; (b) the death of the 

Wife; (c) remarriage of the Wife; or (d) the 

Wife living with a man to whom she is not 

married for a period in excess of 6 months, as 

though they were husband and wife. 

 3 C. (1) In the event that the Husband's 

income shall be reduced for reasons which are 

not wholly within the control of the Husband, 

the Wife agrees to consider proposals of the 

Husband for modification to the foregoing 

spousal support provisions. The Husband 

agrees that any such proposals made to the 

Wife will be made in good faith and only when 

any such reduction in income has a deleterious 

effect on his ability to make the payments 

required by this Agreement and his ability to 

support himself in a manner consistent with 

his standard [of] living prior to such income 

reduction. 

 3 C. (2) The Husband agrees that if the 

house is not sold prior to his actual date of 

retirement, he will not ask a court of 

competent jurisdiction to reduce or eliminate 

spousal support if the sole basis for the 

reduction or elimination of the support 

payments is his retirement. 

 3 C. (3) The parties agree that they 

shall have the right to petition a court of 

competent jurisdiction to modify or eliminate 

the foregoing support and maintenance in 

accordance with any statutory provision or 

Rule of court then in force. 

* * * * * * * 
 3 

 

 Eighteen months prior to husband's mandatory retirement age 

of sixty years, husband voluntarily retired and received a 

$25,000 buy-out from his employer. At the time of his 

retirement, husband was living in Thailand and was a career 

employee of the United States government. He has since 

remarried, become a permanent resident of Thailand, but is 

prohibited by law from working in that country. Upon his 

retirement, husband's employer began making the pension payments 

as required by the Agreement. 

 On October 13, 1995, more than a year after his retirement, 

husband filed a motion to terminate spousal support. The trial 

court heard the motion on March 20, 1996. Husband argued that 

the only income source for making his spousal support payments 

since his retirement was his pension income and interest earned 

from savings. Additionally, he argued that because he could not 

 11 D. (1) The Wife shall be entitled to, 

and receive, fifty per cent (50%) of the 

marital share of the Husband's military 

pension, when, as and if he receives said 

pension, based on years married (calculated up 

to the date of separation), during which 

Husband accrued a portion of his pension, over 

total years in military service (including 

Reserves) during which Husband accrued his 

total pension benefit. 

 11 D. (2) The Wife shall be entitled to, 

and receive, her maximum pension benefit 

allowable under Virginia and federal law, 

fifty per cent (50%) of the marital share of 

Husband's civil (U.S. Government) pension, 

when, as and if he receives said pension. 
 4 

lawfully work in Thailand, he was unable to earn any supplemental 

income and none could be imputed to him. He admitted that when 

he reached age sixty shortly after trial, he would begin to 

receive an additional pension from the U.S. Army, which also 

would be divided pursuant to the provisions of the Agreement. 

 Wife testified that her need for spousal support had not 

diminished. Her income was limited to her salary, the spousal 

support paid by the husband of $2,600 per month, and her share of 

the husband's pension. Wife further testified that her expenses 

included the mortgage payments she paid on the parties' former 

marital home, upkeep of the home, medical care for herself and 

her daughter, as well as financial support for her daughter. The 

court denied wife's motion to require husband to pay a portion of 

the mortgage payment if it terminated spousal support, finding 

that it "had no power to modify this provision of the PSA." 

 At the conclusion of the hearing, the court found as 

follows: 

 [B]oth parties' testimony was credible[,] 

. . . the [husband] did not retire earlier 

than his mandatory retirement age for an 

improper purpose. . . . [T]he [husband's] 

retirement from government service did not 

preclude his earning income from other 

sources. . . . [T]he [husband] . . . chose[] 

to settle abroad in a country where the cost 

of living is substantially lower. 

The court additionally found that husband "voluntarily chose to 

stay in Thailand and, accordingly, retired in a place which did 

not allow him to work[,] . . . thus preclud[ing] the [c]ourt from 
 5 

imputing income to him." The court denied husband's motion to 

terminate spousal support, but found that "there had been a 

change in circumstances to warrant a reduction in the spousal 

support from $2,600 per month to [$800] per month, beginning 

April 1, 1996. The [c]ourt determined the amount of the award 

based on the testimony as to the approximate split of the 

[husband's] Army pension and the other evidence."2

 

II. STANDARD OF REVIEW

 "Whether spousal support should be paid is largely a matter 

committed to the sound discretion of the trial court, subject to 

the provisions of Code § 20-107.1." McGuire v. McGuire, 10 Va. 

App. 248, 251, 391 S.E.2d 344, 346 (1990). Although the decision 

to award spousal support rests within the trial court's 

discretion, "'such discretion is not absolute and is subject to 

review for abuse.'" 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)). 

 In fixing the amount of the spousal support 

award, . . . the court's ruling will not be 

disturbed on appeal unless there has been a 

clear abuse of discretion. We will reverse 

the trial court only when its decision is 

plainly wrong or without evidence to support 

it. 

Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d 635, 644 

(1992) (citations omitted). 

 

 2The record in this case included a "statement of facts, 

testimony and other incidents of the case." 
 6 

 "Upon petition of either party, a court may . . . [modify] 

. . . spousal support . . . as the circumstances may make 

proper." See Code § 20-109. "The moving party in a petition for 

modification of support is required to prove both a material 

change in circumstances and that this change warrants a 

modification of support." Schoenwetter v. Schoenwetter, 8 Va. 

App. 601, 605, 383 S.E.2d 28, 30 (1989); Furr v. Furr, 13 Va. 

App. 479, 481, 413 S.E.2d 72, 73 (1992); see also Blank v. Blank, 

10 Va. App. 1, 4, 389 S.E.2d 723, 724 (1990) (holding that 

spousal support must be redetermined if necessary in light of new 

circumstances). The material change in circumstances must have 

occurred after the most recent judicial review of the award, see

Hiner v. Hadeed, 15 Va. App. 575, 577, 425 S.E.2d 811, 812 

(1993), and "must bear upon the financial needs of the dependent 

spouse or the ability of the supporting spouse to pay." 

Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 

(1988). "The 'circumstances' which make 'proper' an increase, 

reduction or cessation of spousal support under Code § 20-109 are 

financial and economic ones." Id. at 419, 369 S.E.2d at 452-53. 

 On appeal, the trial court's findings must be accorded great 

deference. See Bandas v. Bandas, 16 Va. App. 427, 432, 430 

S.E.2d 706, 708 (1993). "In determining whether credible 

evidence exists, the appellate court does not retry the facts, 

reweigh the preponderance of the evidence, or make its own 

determination of the credibility of witnesses." Wagner Enters., 
 7 

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

"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 (quoting Schoenwetter, 8 Va. App. at 605, 

383 S.E.2d at 30). 

III. PENSION AS INCOME

 On appeal, husband posits an alleged internal inconsistency 

between the language of Code § 20-107.1 and that of Code 

§ 20-107.3(G).3 Husband argues that the language of Code 

 

 3Code § 20-107.1 provides in pertinent part: 

 [T]he court may make such further decree 

as it shall deem expedient concerning the 

maintenance and support of the spouses. 

* * * * * * * 

 The court, in determining whether to 

award support and maintenance for a spouse, 

shall consider the circumstances and factors 

which contributed to the dissolution of the 

marriage, . . . . If the court determines that 

an award should be made, it shall, in 

determining the amount, consider the 

following: 

 (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 . . . . 

(Emphasis added). Code § 20-107.3 provides in pertinent part: 

 (A) Upon decreeing the dissolution of a 

marriage, and also upon decreeing a divorce 

. . . the court, upon request of either party, 

shall determine the legal title as between the 

parties, and the ownership and value of all 
 8 

 

§ 20-107.1 requiring the trial court when setting spousal support 

to consider all financial resources of a party, including income 

from "all pension, profit sharing or retirement plans, of 

whatever nature" conflicts with the language of Code 

§ 20-107.3(G), limiting division of a party's pension to fifty 

percent of the marital share of cash benefits actually received. 

 Thus, husband contends that the trial court's failure to 

terminate his spousal support obligation resulted in 

"double-dipping," because wife already received her maximum 

marital share of his pension pursuant to the equitable 

distribution provisions of the parties' agreement.4

 Under the 

property, real or personal, tangible or 

intangible, of the parties and shall consider 

which of such property is separate property, 

which is marital property, and which is part 

separate and part marital . . . . 

* * * * * * * 

 (G) [U]pon consideration of the factors 

set forth in subsection E: (1) The court may 

direct payment of a percentage of the marital 

share of any pension, profit-sharing or 

deferred compensation plan or retirement 

benefits, whether vested or nonvested, which 

constitutes marital property. . . . However, 

the court shall only direct that payment be 

made as such benefits are payable. No such 

payment shall exceed fifty percent of the 

marital share of the cash benefits actually 

received by the party against whom such award 

is made. 

(Emphasis added). 

 4 "Double dipping" is the term used to describe [that 

which] . . . occurs when property is awarded 

to a spouse in equitable distribution but is 
 9 

trial court's order, husband would be required to use his pension 

benefits to pay spousal support because he has no other income. 

Although conceding that these code sections are "part of one 

legislative scheme dealing with divorce," he argues that they 

remain in conflict, and the dollars reflected in his disbursed 

marital share of pension monies cannot be used to recalculate his 

spousal support obligation. 

 A. THE RELATIONSHIP BETWEEN CODE §§ 20-107.1 AND 20-107.3

 "A primary rule of statutory construction is that courts 

must look first to the language of the statute. If a statute is 

clear and unambiguous, a court will give the statute its plain 

meaning." Loudoun County Dep't of Social Services v. Etzold, 245 

Va. 80, 85, 425 S.E.2d 800, 802 (1993). "As we do not believe 

the General Assembly intended to enact irreconcilable provisions 

in the Act, we construe the provisions in a way that gives full 

effect to all the statutory language." Marchand v. Division of 

Crime Victims' Comp., 230 Va. 460, 463, 339 S.E.2d 175, 177 

(1986). 

 "When the General Assembly uses different terms in the same 

act, it is presumed to mean different things. . . . 'In 

 then also treated as a source of income for 

purposes of calculating alimony 

 obligations. Double dipping disputes usually 

center on pensions. 

7 Equitable Distribution Journal 1 (July 1990). 
 10 

construing a statute the court should seek to discover the 

intention of the legislature as ascertained from the act itself 

when read in the light of other statutes relating to the same 

subject matter.'" Campbell v. Commonwealth, 13 Va. App. 33, 38, 

409 S.E.2d 21, 24 (1991) (quoting Robert Bunts Eng'g & Equip. Co. 

v. Palmer, 169 Va. 206, 209-10, 192 S.E. 789, 790-91 (1937)) 

(citation omitted). "[S]tatutes addressing the same subject are 

to be read in pari materia. In pari materia is the rule of 

statutory construction that 'statutes which relate to the same 

subject matter should be read, construed and applied together so 

that the legislature's intention can be gathered from the whole 

of the enactments.'" Alger v. Commonwealth, 19 Va. App. 252, 

256, 450 S.E.2d 765, 767 (1994) (quoting Black's Law Dictionary

791 (6th ed. 1990)). "Under the rule of statutory construction 

of statutes in pari materia, statutes are not to be considered as 

isolated fragments of law, but as a whole, or as parts of a 

great, connected homogeneous system, or a single and complete 

statutory arrangement." Lillard v. Fairfax County Airport Auth., 

208 Va. 8, 13, 155 S.E.2d 338, 342 (1967). 

 While Code § 20-107.3(G) precludes the non-employee spouse 

from receiving in the equitable distribution proceeding an amount 

exceeding "fifty percent of the marital share of cash benefits 

actually received by the party against whom such award is made," 

Code § 20-107.1(1) expressly requires that when setting spousal 

support, the trial court shall consider a party's financial 
 11 

resources, including income from "all pension, profit sharing or 

retirement plans, of whatever nature." (Emphasis added). Each 

of these sections concerns decidedly different aspects of the 

resolution of marital rights. The one-time equitable 

distribution of property completed by Code § 20-107.3 is based on 

the accrued rights of the parties in the distributed property. 

This is a separate consideration from that necessary to measure 

the current financial positions of the parties in determining 

spousal support under Code § 20-107.1. Different statutory 

considerations are mandated for each.5

 Code § 20-107.1(1) evinces the General Assembly's clear 

intent for income from "all pension[s]" to be included in a trial 

court's calculation of spousal support. (Emphasis added). 

Although Code § 20-107.3(G) limits the award a spouse can receive 

pursuant to the equitable distribution of marital property, no 

language precludes that property from being considered at a later 

time as income for purposes of calculation of spousal support. 

The General Assembly could have specifically directed, as did the 

New Jersey legislature, that a trial court could not consider the 

pension share awarded in the equitable distribution proceeding in 

determining spousal support.6

 It did not do so. To the 

 

 5The spousal support award, unlike the equitable distribution 

award, is subject to modification as circumstances change. The 

equitable distribution award, once made, is final and is not 

dependent on future events. 

 6See N.J.S.A. 2A:34-23, which provides in significant part that 

"[w]hen a share of a retirement benefit is treated as an asset for 

purposes of equitable distribution, the court shall not consider 
 12 

contrary, the plain language of the statute mandates 

consideration of "all pension[s], profit sharing or retirement 

plans" in the trial court's determination of spousal support. 

 Other states have emphasized the distinction between spousal 

support and equitable distribution. See, e.g., Krafick v. 

Krafick, 663 A.2d 365, 373 (Conn. 1995) (where the Supreme Court 

of Connecticut stated that "[a]n award of property is final; the 

party who receives property pursuant to § 46b-81 owns it in his 

or her own right and controls it. Periodic alimony, on the other 

hand, is conditional, subject to modification or elimination"). 

In Riley v. Riley, 571 A.2d 1261, 1264 (Md. 1990), the Court of 

Special Appeals of Maryland held: 

 Although there is an interrelationship 

between the two in the sense that, as to 

each, the court must consider the one in 

deciding upon the other, . . . they have 

quite different purposes and focuses. . . . 

[A]limony is intended to provide periodic 

support to a financially dependent spouse 

following the divorce. . . . [T]he principal 

focus is really on the future . . . . A 

monetary award . . . is not intended as 

support, and it focuses . . . on the present 

and past. . . . The sole purpose . . . is to 

assure that the disposition of that property 

upon the divorce will be equitable in terms 

of the overall contributions that each party 

made to the acquisition of the property and 

 

income generated thereafter by that share for purposes of 

determining alimony." See also Flach v. Flach, 606 A.2d 1153, 

1154 (N.J.Super. 1992) ("It is clear that the Legislature, by 

enacting the 'pension' amendment to N.J.S.A. 2A:34-23, eliminated 

'double-dipping' for retirement benefits. . . . [O]n alimony 

modification application, all previously equitably distributed 

assets and all assets acquired with, by or through equitably 

distributed assets, when repaid, are not to be deemed to be income 

for the purpose of determining alimony."). 
 13 

to the marriage and its breakup. 

Moreover, it is generally recognized that: 

 [S]pousal support and equitable distribution 

of property are two distinct concepts. The 

nonpensioned spouse is not claiming rights as 

a co-owner in the distributed property, but 

is instead simply asserting that the pension 

should not be ignored when gauging the 
 14 

 financial position of the two parties for 

purposes of awarding alimony. 

7 Equitable Distribution Journal 1 (July 1990). 

 Additionally, in another context dealing with the interplay 

between these two code sections, we held that "the appropriate 

separation between considerations of spousal support and 

considerations of an equitable distribution of marital wealth 

prevents a 'double dip' by a spouse who seeks and receives 

encumbered marital property under Code § 20-107.3 and also seeks 

and receives spousal support under Code § 20-107.1." Gamble, 14 

Va. App. at 577, 421 S.E.2d at 646. In analyzing the legislative 

intent behind these sections, we held that, 

 [W]hile Code § 20-107.1 requires a chancellor 

to consider the provisions made with regard 

to marital property under Code § 20-107.3, we 

view that requirement as a practical means by 

which the chancellor may fix a proper spousal 

support award in light of the financial 

result of the monetary award. Thus, for 

example, 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. 

Id. at 576-77, 421 S.E.2d at 646 (holding that the chancellor may 

not, pursuant to Code § 20-107.1, fix a spousal support award so 

that the receiving spouse can satisfy outstanding debts on the 

marital property conveyed to that spouse pursuant to Code 

§ 20-107.3) (citing Williams v. Williams, 4 Va. App. 19, 24, 354 

S.E.2d 64, 66 (1987), and Reid v. Reid, 7 Va. App. 553, 564, 375 

S.E.2d 533, 539 (1989)). 

 "Studied in the light of its purpose and the intent of the 
 15 

legislature, the meaning of [these code sections] is not so 

ambiguous as to leave reasonable doubt of its meaning, nor are 

its words equally capable of more than one construction." Tiller 

v. Commonwealth, 193 Va. 418, 423-24, 69 S.E.2d 441, 444 (1952). 

 The husband's proposed limited construction of these two 

statutory provisions "would be contrary to the express language 

used and the manifest intent of the legislature, [and] would 

render the statute unreasonable, . . . which cannot be presumed 

to have been the intent of the legislature." Id. Accordingly, 

we find that, when considered in the overall legislative scheme 

for the proper resolution of both property and support issues, 

Code §§ 20-107.1 and 20-107.3 are compatible and must be read 

together. 

B. DUAL CONSIDERATION OF PENSION

 We have recognized a distinction between equitable 

distribution awards made pursuant to Code § 20-107.3 and spousal 

support awards made pursuant to Code § 20-107.1. For example, in 

Stumbo v. Stumbo, we held as follows: 

 A spousal support award under Code § 20-107.1 

serves a purpose distinctly different from an 

equitable distribution award fashioned under 

Code § 20-107.3. "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." "In determining spousal support, 

the trial court's consideration must include 

earning capacity, obligations, needs, the 

property interests of the parties, and the 

provisions if any, made with regard to 
 16 

marital property." "A review of all the 

factors contained in Code § 20-107.1 is 

mandatory" in making a spousal support award. 

Stumbo v. Stumbo, 20 Va. App. 685, 691, 460 S.E.2d 591, 594 

(1995) (citations omitted). While we have not yet determined the 

precise question of whether pension benefits post equitable 

distribution may be considered as income in a calculation or 

recalculation of spousal support,7 several of our sister states 

have addressed this issue. 

 The majority of these jurisdictions do not prohibit dual 

consideration of the pension award for purposes of equitable 

distribution and spousal support. In Riley, a case factually 

similar to the case at bar, the Maryland Court of Special Appeals 

decided that husband's pension benefits may properly "be 

considered as a resource for purposes of determining his ability 

to pay alimony," even though wife had already been given a share 

of the pension as part of the monetary award. Riley, 571 A.2d at 

1266. In that case, the parties were divorced after thirty-two 

years of marriage. The decree directed husband to pay alimony, 

gave wife a monetary award based on marital property, and awarded 

her an interest in husband's pension. Husband paid the monetary 

award to wife. He later retired and filed a motion to reduce or 

terminate his alimony obligation. Husband argued, as in the 

instant case, that the court erred in considering his pension and 

 

 7See Stubblebine v. Stubblebine, 22 Va. App. 703, 709, 473 

S.E.2d 72, 74-75 (1996), where we "express[ed] no opinion on the 

relationship between Code §§ 20-107.1 and 20-107.3." 
 17 

disability benefits as sources of income for the purpose of 

determining his ability to pay alimony. He contended that "his 

pension benefits [could not] properly be considered as a resource 

for purposes of alimony because [the wife] had already been given 

a share of the pension as part of the monetary award and [she] 

therefore ha[d] no claim on the balance of the pension." Id. at 

1264. The trial court denied his motion. On appeal, the 

Maryland Court of Special Appeals held as follows: "[W]e see no 

reason why [the trial court] cannot base such an award on assets 

or sources of income that have not been taken from the payor and 

that do remain available." Id. The court explained: 

 [The pension share] he paid to her is no 

longer a resource of his and was not counted 

as such. He therefore has been given credit 

for the monetary award paid to [wife]. The 

evidence showed that [husband] receives, or 

is entitled to receive . . . monthly pension 

benefits. That is his money, and it is 

therefore, in fact, a resource that he has 

from which to pay alimony. We see nothing 

unlawful or unfair in the court's considering 

it as such. 

Id. at 1265. 

 Similarly, in Pennsylvania, the Court of Common Pleas 

divorced the parties, distributed the marital property, and 

awarded alimony to wife. Husband, who was receiving his 

retirement benefits, argued that he would be "unjustly burdened 

if the pension is designated as a marital asset subject to 

equitable distribution and also used to calculate the alimony 

award" to wife. Braderman v. Braderman, 488 A.2d 613, 620 (Pa. 
 18 

Super. 1985). The appellate court disagreed. 

 This argument ignores the provisions of the 

Divorce Code providing that in determining 

the alimony award, the court must consider 

numerous factors including the sources of 

income and the property of both parties. In 

determining the husband's ability to pay 

support, the court must consider his earning 

power and the nature and extent of his 

property. Also, in determining whether 

[wife] lacks sufficient property to provide 

for her reasonable needs, the court must 

consider any property distributed to the wife 

pursuant to the equitable distribution award. 

Id. Accord White v. White, 192 Cal. App. 3d 1022, 1028-29 (1987) 

(holding that the "income from [the husband's] separate property 

pension must be considered along with other appropriate factors 

when gauging his ability to pay just and reasonable spousal 

support"); Krafick, 663 A.2d at 365 (holding that it is not 

double dipping to consider vested pension benefits for purposes 

of equitable distribution and as a source for alimony in a 

martial dissolution action); Sachs v. Sachs, 659 A.2d 678 (Vt. 

1995) ("pensions may be considered as marital assets . . . they 

may also be considered as a source of income upon which an award 

of spousal maintenance may be based"). 

 Further, other marital awards or benefits may be considered 

a source of income in different contexts. In McGuire, we held 

that the trial court did not abuse its discretion in fixing a 

spousal support award when it considered the monthly pension 

payments the wife was receiving. See McGuire, 10 Va. App. at 

251, 391 S.E.2d at 347. We stated that "Code § 20-107.1 required

the trial judge to consider the income from the federal pension 
 19 

that [wife] . . . was to receive. . . . We believe that the 

plain language of Code § 20-107.1 requires that monthly federal 

pension payments be considered as akin to monthly income from an 

asset and not an exhaustible asset. . . ." Id. at 251-52, 391 

S.E.2d at 347 (emphasis added). Moreover, 

 [M]ost states have never adopted the rule 

that a pension cannot be a source for both 

property division and alimony, and several 

states have rejected the rule expressly. 

. . . It is entirely true that a pension 

cannot be both presently existing property 

and income earned in the future; it must be 

one or the other. . . . [A]n award of alimony 

can be based not only upon the payor's income 

but also upon his property. Where the payor 

owns real property, for instance, he may 

under some circumstances be required to sell 

it in order to pay alimony to his former 

spouse . . . . All types of property, 

including pensions, should be a permissible 

source for future alimony payments. 

See generally Brett R. Turner, Equitable Distribution of Property

§ 6.11 p. 355 (2d ed. 1995) (footnotes omitted). We find the 

analysis and the cases cited above equally applicable to the 

instant case. Thus, we hold that the income received by husband 

from his share of the distribution of his pension is a fungible 

asset that may be considered as a resource when determining the 

amount of his spousal support obligation. By the same token, the 

wife's share of the pension is a resource of hers which must be 

considered in determining her need for support. 

 Additionally, it is noteworthy that the parties included 

provisions in their Agreement for the reduction and/or 

elimination of husband's spousal support obligation upon the 
 20 

happening of enumerated events. Paragraph 3 B. (2) of the 

Agreement provides as follows: 

 The obligation of the Husband to pay spousal 

support to the Wife shall terminate on the 

first to occur of: (a) the death of the 

Husband; (b) the death of the Wife; (c) 

remarriage of the Wife; or (d) the Wife 

living with a man to whom she is not married 

for a period in excess of 6 months, as though 

they were husband and wife. 

However, the Agreement contains no provision excluding husband's 

share of the pension from his income for purposes of 

recalculating his spousal support obligation. Neither does the 

Agreement contain any provision excluding husband's pension share 

from his income in the event it becomes his only source of 

income. 

 Lastly, we address husband's reliance on the New Jersey 

cases of Innes v. Innes, 569 A.2d 770 (N.J. 1990), and D'Oro v. 

D'Oro, 454 A.2d 915 (N.J. Super. 1982), which held that a pension 

once divided may never be considered again. These are easily 

distinguished from the instant case. The New Jersey legislature 

amended its statute to provide that once a retirement benefit "is 

treated as an asset for purposes of equitable distribution, the 

court shall not consider income generated thereafter by that 

share for purposes of determining alimony." See also Staver v. 

Staver, 526 A.2d 290 (N.J. Super 1987) (holding that, pursuant to 

N.J.S.A. 2A:34-23, the portion of husband's pension subject to 

equitable distribution cannot be considered income for purposes 

of alimony). The comparable provisions in Virginia, Code 
 21 

§§ 20-107.1(1) and 20-107.3(G), contain no such prohibition. 

Thus, the New Jersey statutory and case law cited by the husband 

is inapposite. 

 Accordingly, we hold that the trial court did not abuse its 

discretion in failing to terminate husband's spousal support 

obligation, and that the trial court properly reduced the 

husband's spousal support obligation from $2,600 to $800 based 

upon a change in husband's financial circumstances. For the 

foregoing reasons, the trial court is affirmed. 

 Affirmed.