Moreno v. Moreno

• Decision Date: 11 February 1997
• Docket Number: No. 0972-96-4,0972-96-4
• Court: Virginia Court of Appeals
• Parties: Richard F. MORENO v. Patricia E. MORENO. Record

Page 792

480 S.E.2d 792

24 Va.App. 190

Richard F. MORENO v. Patricia E. MORENO.

Record No. 0972-96-4.

Court of Appeals of Virginia,

Alexandria.

Feb. 11, 1997.

Alan M. Winterhalter, McLean (Alan M. Winterhalter & Associates, P.C., on brief), for appellant.

Carl P. Horton, Oakton, on brief, for appellee. Appellee submitting on brief.

Present: MOON, C.J., and FITZPATRICK and ANNUNZIATA, JJ.

FITZPATRICK, Judge.

Richard F. Moreno (husband) appeals the decision of the trial court denying a request to terminate his spousal support obligation to Patricia E. Moreno (wife). He contends that the trial court erred in using income from his previously divided government pension as a source of funds to pay spousal support. Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

The facts of this case are not in dispute. The parties were married in 1970, separated in 1990, and divorced in 1992. The final decree of divorce, entered June 15, 1992, incorporated the parties' property settlement agreement (Agreement). Included in the Agreement were provisions requiring husband to pay spousal support and provisions distributing the marital portions of husband's pensions. ¹

Eighteen months prior to husband's mandatory retirement age of sixty years, husband voluntarily retired and received a $25,000 buy-out from his employer. At the time of his retirement, husband was living in Thailand and was a career employee of the United States government. He has since remarried, become a permanent resident of Thailand, but is prohibited by law from working in that country. Upon his retirement, husband's employer began making the pension payments as required by the Agreement.

On October 13, 1995, more than a year after his retirement, husband filed a motion to terminate spousal support. The trial court heard the motion on March 20, 1996. Husband argued that the only income source for making his spousal support payments since his retirement was his pension income and interest earned from savings. Additionally, he argued that because he could not lawfully work in Thailand, he was unable to earn any supplemental income and none could be imputed to him. He admitted that when he reached age sixty shortly after trial, he would begin to receive an additional pension from the U.S. Army, which also would be divided pursuant to the provisions of the Agreement.

Wife testified that her need for spousal support had not diminished. Her income was limited to her salary, the spousal support paid by the husband of $2,600 per month, and her share of the husband's pension. Wife further testified that her expenses included the mortgage payments she paid on the parties' former marital home, upkeep of the home, medical care for herself and her daughter, as well as financial support for her daughter. The court denied wife's motion to require husband to pay a portion of the mortgage payment if it terminated spousal support, finding that it "had no power to modify this provision of the PSA."

At the conclusion of the hearing, the court found as follows:

[B]oth parties' testimony was credible[,] ... the [husband] did not retire earlier than his mandatory retirement age for an improper purpose.... [T]he [husband's] retirement from government service did not preclude his earning income from other sources.... [T]he [husband] ... chose[ ] to settle abroad in a country where the cost of living is substantially lower.

The court additionally found that husband "voluntarily chose to stay in Thailand and, accordingly, retired in a place which did not allow him to work[,] ... thus preclud[ing] the [c]ourt from imputing income to him." The court denied husband's motion to terminate spousal support, but found that "there had been a change in circumstances to warrant a reduction in the spousal support from $2,600 per month to [$800] per month, beginning April 1, 1996. The [c]ourt determined the amount of the award based on the testimony as to the approximate split of the [husband's] Army pension and the other evidence." ²

II. STANDARD OF REVIEW

"Whether spousal support should be paid is largely a matter committed to the sound discretion of the trial court, subject to the provisions of Code § 20-107.1." McGuire v. McGuire, 10 Va.App. 248, 251, 391 S.E.2d 344, 346 (1990). Although the decision to award spousal support rests within the trial court's discretion, " 'such discretion is not absolute and is subject to review for abuse.' " L.C.S. v. S.A.S., 19 Va.App. 709, 714, 453 S.E.2d 580, 583 (1995) (quoting Via v. Via, 14 Va.App. 868, 870, 419 S.E.2d 431, 433 (1992)).

In fixing the amount of the spousal support award, ... the court's ruling will not be disturbed on appeal unless there has been a clear abuse of discretion. We will reverse the trial court only when its decision is plainly wrong or without evidence to support it.

Gamble v. Gamble, 14 Va.App. 558, 574, 421 S.E.2d 635, 644 (1992) (citations omitted).

"Upon petition of either party, a court may ... [modify] ... spousal support ... as the circumstances may make proper." See 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); Furr v. Furr, 13 Va.App. 479, 481, 413 S.E.2d 72, 73 (1992); see also Blank v. Blank, 10 Va.App. 1, 4, 389 S.E.2d 723, 724 (1990) (holding that spousal support must be redetermined if necessary in light of new circumstances). The material change in circumstances must have occurred after the most recent judicial review of the award, see Hiner v. Hadeed, 15 Va.App. 575, 577, 425 S.E.2d 811, 812 (1993), and "must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay." Hollowell v. Hollowell, 6 Va.App. 417, 419, 369 S.E.2d 451, 452 (1988). "The 'circumstances' which make 'proper' an increase, reduction or cessation of spousal support under Code § 20-109 are financial and economic ones." Id. at 419, 369 S.E.2d at 452-53.

On appeal, the trial court's findings must be accorded great deference. See Bandas v. Bandas, 16 Va.App. 427, 432, 430 S.E.2d 706, 708 (1993). "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of witnesses." Wagner Enters., Inc. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991). "We will not disturb the trial court's decision where it is based on an ore tenus hearing, unless it is 'plainly wrong or without evidence in the record to support it.' " Furr, 13 Va.App. at 481, 413 S.E.2d at 73 (quoting Schoenwetter, 8 Va.App. at 605, 383 S.E.2d at 30).

III. PENSION AS INCOME

On appeal, husband posits an alleged internal inconsistency between the language of Code § 20-107.1 and that of Code § 20-107.3(G). ³ Husband argues that the language of Code § 20-107.1 requiring the trial court when setting spousal support to consider all financial resources of a party, including income from "all pension, profit sharing or retirement plans, of whatever nature" conflicts with the language of Code § 20-107.3(G), limiting division of a party's pension to fifty percent of the marital share of cash benefits actually received. Thus, husband contends that the trial court's failure to terminate his spousal support obligation resulted in "double-dipping," because wife already received her maximum marital share of his pension pursuant to the equitable distribution provisions of the parties' agreement. ⁴ Under the trial court's order, husband would be required to use his pension benefits to pay spousal support because he has no other income. Although conceding that these code sections are "part of one legislative scheme dealing with divorce," he argues that they remain in conflict, and the dollars reflected in his disbursed marital share of pension monies cannot be used to recalculate his spousal support obligation.

A. THE RELATIONSHIP BETWEEN CODE §§ 20-107.1 AND 20-107.3

"A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun County Dep't of Social Services v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). "As we do not believe the General Assembly intended to enact irreconcilable provisions in the Act, we construe the provisions in a way that gives full effect to all the statutory language." Marchand v. Division of Crime Victims' Comp., 230 Va. 460, 463, 339 S.E.2d 175, 177 (1986).

"When the General Assembly uses different terms in the same act, it is presumed to mean different things.... 'In construing a statute the court should seek to discover the intention of the legislature as ascertained from the act itself when read in the light of other statutes relating to the same subject matter.' " Campbell v. Commonwealth, 13 Va.App. 33, 38, 409 S.E.2d 21, 24 (1991) (quoting Robert Bunts Eng'g & Equip. Co. v. Palmer, 169 Va. 206, 209-10, 192 S.E. 789, 790-91 (1937)) (citation omitted). "[S]tatutes addressing the same subject are to be read in pari materia. In pari materia is the rule of statutory construction that 'statutes which relate to the same subject matter should be read, construed and applied together so that the legislature's intention can be gathered from the whole of the enactments.' " Alger v. Commonwealth, 19 Va.App. 252, 256, 450 S.E.2d 765, 767 (1994) (quoting Black's Law Dictionary 791 (6th ed. 1990)). "Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogeneous system, or a single and complete statutory arrangement." Lillard v. Fairfax County Airport Auth., 208 Va. 8, 13, ...