Stubblebine v. Stubblebine , 21 Va. App. 635 ( 1996 )

COLEMAN, Judge.

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 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 $8,058.00.¹ 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 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 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 proride 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 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 preretirement earning capacity). Imputing income² to Albert Stubblebine on the basis of his recent past earnings did not constitute an abuse of discretion. See Brody v. Brody, 16 Va.App. 647, 651, 432 S.E.2d 20, 22 (1993). 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 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 “[ejven 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 trial courts must consider “bona fide and reasonable” decisions concerning employment, which would include retirement; however, trial courts do not err or abuse their discretion in considering the extent to which the decision renders a person underemployed or unemployed. 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). The expectations associated with retirement must be considered; however, we cannot ignore the policy underlying Code § 20-107.1, particularly as it applies to the facts of this case. Albert Stubblebine had provided most of the financial support during the marriage. After his retirement, he 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.

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.

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)(l). 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.

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).