Stubblebine v. Stubblebine

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
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
1
Presumably, 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 income 2 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
2
Presumably, 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.

3
Because 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

4
The 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

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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

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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

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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
5
Citing 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

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 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.

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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

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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

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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.

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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

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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

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 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,

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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. . . .

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 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

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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

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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.

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