Opinion
Record No. 1334-94-2
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Buford M. Parsons, Jr., Judge
(John A. Gibney, Jr.; Jane Chittom; Shuford, Rubin Gibney, on brief), for appellant.
(Everette A. Felts, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Raymond Adrian Norris (husband) appeals the decision of the circuit court denying his request for a reduction in the monthly spousal support he pays to Ada Elizabeth Norris (wife). Husband raises two issues on appeal: (1) the trial court erred in finding husband's retirement was not a material change of circumstances warranting a reduction in the amount of monthly spousal support payments; and (2) wife's waiver of any interest in husband's retirement benefits bars her from receiving spousal support. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
We view the evidence in the light most favorable to wife as the party prevailing below. "Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 20, 348 S.E.2d 13, 16 (1986). We note, however, that "[p]roperty settlement and support agreements are subject to the same rules of construction and interpretation applicable to contracts generally." Fry v. Schwarting, 4 Va. App. 173, 180, 355 S.E.2d 342, 346 (1987). "[O]n appeal if all the evidence which is necessary to construe a contract was presented to the trial court and is before the reviewing court, the meaning and effect of the contract is a question of law which can readily be ascertained by this court." Id.
I.
"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). "[T]he 'circumstances' which make 'proper' an increase, reduction or cessation of spousal support under Code Sec. 20-109 are financial and economic ones." Hollowell v. Hollowell, 6 Va. App. 417, 419, 369 S.E.2d 451, 452 (1988). The trial court ruled that husband had failed to demonstrate that his voluntary retirement was a material change of circumstances justifying a reduction in spousal support.
At the time the final decree incorporating the parties' property settlement was entered, wife was sixty-six years old and in poor health. Husband was sixty years old. Wife waived all interest in husband's retirement benefits in exchange for one-third of the proceeds upon the sale of the marital residence and $500 a month in spousal support. Wife had no retirement benefits in her own right, and, at the time the agreement was signed, had approximately one-sixth the income of husband.
The property settlement agreement listed the factors considered by the parties in setting the terms of the agreement. Those factors included the parties' respective earning capacities and financial resources, including retirement income, and their ages and health. The agreement then provided, in pertinent part, that
[h]usband acknowledges that his anticipated income will provide for his support and maintenance and, considering the above listed factors, his means are sufficient to provide for his own needs. Therefore, Husband waives all claim to support and maintenance for himself and hereby releases and discharges Wife absolutely and forever for the rest of his life from any and all claims and demands for support and maintenance.
An award of spousal support "must be based upon 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). The trial court ruled that the parties "considered the income from retirement in determining both the division of marital property and the payment of spousal support." Therefore, we cannot say upon review the trial court erred when it determined that husband's reduction in income through voluntary retirement was not a material change of circumstances warranting a reduction or abatement in spousal support.
II.
Husband also asserts that wife's waiver of interest in husband's retirement bars her from receiving spousal support now that husband has retired and is drawing retirement income. This argument is without merit.
Under the terms of their property settlement agreement, the parties jointly waived any interest either had to "the other's pension, retirement fund, annuities, or profit sharing plan." Thus, neither was entitled to receive the marital share which might otherwise be theirs as part of the equitable distribution of the marital property. See Code Sec. 20-107.3(G). However, the evidence showed husband's income is derived from at least two sources. "Contrary to the husband's contention, the source of the payments need not come from his [retirement fund]; the husband is free to satisfy his obligations to his former wife by using other available assets." Holmes v. Holmes, 7 Va. App. 472, 485, 375 S.E.2d 387, 395 (1988).
Therefore, wife's waiver of any interest in husband's retirement benefits does not bar wife from continuing to receive spousal support.
Accordingly, the decision of the circuit court is summarily affirmed.
Affirmed.