                       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

                                 - 5 -
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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