COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
JANICE MARIE RODGERS
v. Record No. 0908-98-2
BRADLEY MORELAND RODGERS, M.D.
MEMORANDUM OPINION * BY
and JUDGE JAMES W. BENTON, JR.
JULY 6, 1999
BRADLEY MORELAND RODGERS, M.D.
v. Record No. 0949-98-2
JANICE MARIE RODGERS
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Mark A. Barondess (Mark B. Sandground;
Brian D. West; Erika B. Schiller; Sandground,
Barondess, West & New, P.C., on briefs), for
Janice Marie Rodgers.
Bruce R. Williamson, Jr. (David J. Toscano;
Williamson & Toscano, on brief), for Bradley
Moreland Rodgers, M.D.
These appeals arise from a judgment reducing the amount of
spousal support that Bradley Moreland Rodgers is required to pay
to his former wife, Janice Marie Rodgers. Both parties, whom we
designate husband and wife, appeal from the judgment. For the
reasons that follow, we affirm the judgment.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
The parties were divorced by a final decree of divorce in
1996. The decree recognized that the parties had agreed to the
division of some marital assets, and the decree essentially
divided the remaining marital assets equally between the
parties. The decree also ordered the husband to pay spousal
support of $5,700 per month.
On October 8, 1997, husband filed a motion to modify
spousal support. In the motion, the husband alleged that the
wife (1) was operating a business and receiving income from the
business, constituting a material change in circumstances and
(2) had "already attained the age of 59 1/2 years and . . . is
eligible to draw income or principal from her substantial
retirement accounts received in the divorce proceedings . . .
without penalty." At the hearing on the motion, the parties
agreed that the essential facts were not in dispute, and they
proffered exhibits and stipulated various facts. In pertinent
part, the evidence established that in 1997 the wife's IRA
account earned $143,000. The wife voluntarily took a
distribution of $80,000 from the earnings on her IRA. That
distribution was taxed to her as ordinary income.
Following the hearing, the trial judge found, among other
things, the following:
1. That the wife had attained the age of 60
and is eligible to withdraw funds from her
IRA, to be taxed as ordinary income and
without penalty;
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2. That the husband's retirement account
was divided evenly between the parties
pursuant to the decree of divorce and that
the wife deposited her share, totaling
$401,000.00 into an IRA in early 1997;
3. That by the end of 1997, the wife's IRA
had increased without further contributions
to a value of $544,000.
Based on these findings and the evidence, the trial judge ruled
as follows:
Because [the wife] . . . has gained the
ability to withdraw funds from her
individual retirement account without
penalty, she has earned passive income which
the court may properly consider in
addressing whether circumstances warrant a
reduction in the amount of the payments to
which she is entitled.
The Court received into evidence . . . a
monthly income and expense statement of [the
wife] . . . show[ing] that she had total
money expenses of $6,144.00 and a net income
of $3,744.00. Her principal gross income
was the $5,700.00 paid to her by [the
husband].
The Court finds that the income [of
$143,000] earned on [the wife's] individual
retirement account . . . should be
considered in considering the amount of
support owed by [the husband]. The Court
finds that she could reasonably be expected
to withdraw half of the amount earned, or
$71,500.00. Assuming a 30% tax bracket, she
would have available $4,171.00 per month out
of that original sum of $71,500.00.
Accordingly, the Court reduces the monthly
obligation of [the husband] to pay spousal
support from $5,700.00 per month to
$2,492.00 per month.
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II.
In her appeal from the reduction in spousal support, the
wife contends the trial judge erred by (1) relying upon the
passive increase in value of her IRA, (2) requiring her to
invade her retirement funds, and (3) considering for purposes of
support income that she had not withdrawn from the account and
assuming continued passive increases will occur to the account.
The husband cross appeals and contends the trial judge erred in
failing to consider all of the income earned by the wife's IRA
and to eliminate all spousal support.
III.
"Upon petition of either party the [trial judge] may . . .
[modify] spousal support . . . as the circumstances may make
proper." 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). "The determination
whether a spouse is entitled to [a modification of spousal]
support, and if so how much, is a matter within the discretion
of the [trial judge] and will not be disturbed on appeal unless
it is clear that some injustice has been done." Dukelow v.
Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986). See
also Taylor v. Taylor, 14 Va. App. 642, 649, 418 S.E.2d 900, 904
(1992).
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In Moreno v. Moreno, 24 Va. App. 190, 480 S.E.2d 792
(1997), we considered the issue whether income from pensions may
be used when determining a request for modification of spousal
support. There, we ruled as follows:
[W]e 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
[income from her] share of the pension is a
resource of hers which must be considered in
determining her need for support.
Id. at 204, 480 S.E.2d at 799. See also McGuire v. McGuire, 10
Va. App. 248, 391 S.E.2d 344 (1990). Obviously, income that is
produced by an IRA, and is available to a party without penalty,
to be used as ordinary income is no less a resource for
determining spousal support than income from a pension. See
Moreno, 24 Va. App. at 204, 480 S.E.2d at 799 (noting that "all
types of property" that generates income is "a permissible
source" to consider when determining alimony payments).
The evidence proved that the wife had attained age sixty
and was eligible to draw without penalty the earnings of her
IRA. The evidence further proved that during 1997 the wife's
IRA earned in excess of $143,000 and that she withdrew $80,000,
which was treated as ordinary income. We hold that the trial
judge did not err in considering those earnings as an income
resource in determining her need for support. The trial judge's
ruling did not require the wife to invade the principal fund and
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did not consider the entire earnings of the account to be a
resource that the wife was required to exhaust.
We further hold that the trial judge did not abuse his
discretion in refusing to attribute to the wife as income the
entire amount of the earnings. In view of the proffers of the
parties, the trial judge could properly consider the undrawn and
reinvested portion of the earnings as a prudent hedge against
future market variations that might effect the IRA's corpus.
Accordingly, we affirm the judgment.
Affirmed.
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