McGuire v. McGuire

• Decision Date: 24 April 1990
• Docket Number: No. 0414-89-4,0414-89-4
• Citation: 10 Va.App. 248,391 S.E.2d 344
• Parties: Shirley M. McGUIRE v. Phillip C. McGUIRE. Record
• Court: Virginia Court of Appeals

Page 344

391 S.E.2d 344

10 Va.App. 248

Shirley M. McGUIRE v. Phillip C. McGUIRE.

Record No. 0414-89-4.

Court of Appeals of Virginia.

April 24, 1990.

Emilia Castillo (Arlene Lyles Pripeton, Daniel Stephen Palmer, Arlene Lyles Pripeton, P.C., Fairfax, on briefs), for appellant.

Robert E. Shoun (Beverly J. Bach, Shoun, Smith & Bach, Fairfax, on brief), for appellee.

Present: DUFF, KEENAN and MOON, JJ.

MOON, Judge.

Because the trial judge considered the amount that she will receive from her husband's pension under the equitable distribution award as a source of funds available to her for her support needs, Shirley McGuire claims that the decree wrongfully requires her to exhaust her own estate rather than requiring her husband to provide spousal support. We disagree and affirm because Code § 20-107.1 provides that the trial judge may, in fixing a spousal support award, consider income derived from a pension as an available source of funds to meet current needs.

The parties separated on July 1, 1986, after twenty-seven years of marriage. Their settlement agreement of September 22, 1987, provided that the husband would pay the wife $1250 monthly spousal support, subject to modification upon appropriate motion, and that the wife would receive a monetary award from the husband's federal civil service retirement pay, such award to be computed at the time of the husband's pending retirement according to a formula specified in the agreement. Pursuant to the agreement, the wife and husband would receive approximately a forty-three and fifty-seven percent portion, respectively, of the monthly payment. Survivor benefits were to be deducted from the wife's forty-three percent share. The agreement was ratified, affirmed, and incorporated into the final decree of divorce of December 7, 1987.

On appeal, we construe the evidence in the light most favorable to appellant, granting to appellant all inferences fairly deducible therefrom. Martin v. Department of Social Services, 3 Va.App. 15, 20, 348 S.E.2d 13, 16 (1986).

On December 2, 1988, the husband retired from the Alcohol, Tobacco and Firearms Division of the United States Department of Treasury. The husband's retirement plans were long-standing, and his then age of fifty was the retirement age permitted by federal law for law enforcement officers. In January, 1989, the husband filed a motion to suspend or terminate his spousal support obligation, based upon a substantial change in his financial circumstances--reduction in his former $90,000 annual income due to retirement.

At the date of trial, the husband, age fifty and in good health, had gross annual earnings from employment of $24,000. His net monthly income was $2,950, including his projected share from the federal retirement. His income and expense statement showed his total expenses, present and projected, to be $3,440 per month. This showed a deficit of $490. The wife, who at age fifty-one was in good health and working full time, testified that her monthly net income was $1,188.50 from a gross annual salary of $18,470. Her monthly expenses of $2,383.70, not including unspecified amounts of credit card obligations, were covered by her wages and $1,250 monthly spousal support award.

Mrs. McGuire maintains that her husband failed to show that his change of circumstances was involuntary. She argues that he had the burden of proving that his lack of ability to pay support was not due to his voluntary act or his own neglect. Crosby v. Crosby, 182 Va. 461, 466, 29 S.E.2d 241, 243 (1944). She argues that because his earning capacity has not changed, the court should not have considered what he now earns. Robertson v. Robertson, 215 Va. 425, 427, 211 S.E.2d 41, 44 (1975).

It is true that a spouse may not choose purposefully to pursue a low-paying career which operates to the detriment of the other spouse. Payne v. Payne, 5 Va.App. 359, 364, 363 S.E.2d 428, 431 (1987). However, the evidence in this case fails to show that the husband's retirement necessarily operated to the detriment of his wife.

Before the husband's retirement, the wife was receiving $1,250 a month in spousal support. Because of the husband's retirement, she will receive $1,600 per month from his pension. Therefore, the sums paid to the wife following the husband's retirement are greater than they were before his retirement. The...