                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


CARL A. BARRS
                                         MEMORANDUM OPINION *
v.         Record No. 2093-95-1       BY JUDGE JOSEPH E. BAKER
                                           AUGUST 20, 1996
ALICE C. BARRS


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Robert W. Curran, Judge
           James C. Roberts (Mays & Valentine, on
           briefs), for appellant.

           John F. Rixey (Rixey and Rixey, on brief),
           for appellee.



     Carl A. Barrs (husband) appeals from an award of spousal

support granted to Alice C. Barrs (wife) by a decree of divorce

entered by the Circuit Court of the City of Newport News (trial

court) on August 25, 1995.   Although the decree granted a divorce

and made equitable distribution, attorney's fees, and costs

awards, the sole issue presented by this appeal is whether the

spousal support award exceeded the discretionary authority with

which the trial court is endowed.

     There is little, if any, disagreement as to the value of the

many properties owned by husband as well as his latest annual

wage income or present net income from those properties.      Because

the parties are thoroughly familiar with the extensive record and

exhibits, we refer only to those necessary to an understanding of
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
this opinion.

     Initial hearings were held by a commissioner in chancery to

whom this matter was referred for his report and recommendations.

The commissioner's report discloses that the parties married on

October 7, 1957.   They lived together as husband and wife for

approximately thirty-two years.   They have three children, all of

whom are emancipated.   The parties were fifty-six years of age at

the time of the commissioner's report.    Wife is unemployed and

husband is a successful contractor and investor.   Husband is in

reasonably good health, while wife suffers from multiple

sclerosis.   Wife's condition is in remission, however, the

probability of future medical care is likely, and she is

generally not capable of employment.   On or about September 30,

1989, husband left the marital home and did not return.
     With respect to spousal support, the trial court accepted

the commissioner's recommendation that wife be awarded $8,000 per

month.   In considering the award, the commissioner found

husband's annual income to be $250,000.   The commissioner

considered wife's itemized list of expenses and noted that while

several of the items could be reduced, the sum recommended was

reasonable in that husband had estimated wife's annual expenses

to be $60,400, and that estimate excluded mortgage payments and

tax considerations.

     Husband introduced a cash flow projection covering a

twelve-month period from April 1993 through March 1994.     Husband




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testified in accord with the exhibit that, by the end of the time

period which the exhibit covered, he would be required to expend

a sum of more than $184,000 in excess of his income funds in

order to meet his obligations.    According to his testimony and

exhibits, husband asserted that his income sources totaled

$188,711, and that his expenditures required to maintain his

position with marital investments totaled $141,870.

        Husband concedes that at the time he left the family home in

1989 and in the year 1990, his income was substantially higher

than during 1992 when the hearings before the commissioner were

held.    The commissioner reported that during the year 1989, in

which the parties separated, the gross income shown on husband's

federal tax return was $341,000 and that husband's 1990 and 1991

federal tax returns disclosed $632,000 and $332,000,

respectively.    Husband filed an exhibit claiming his "wage

earnings" from his business were as follows:    1989 - $253,000,

1990 - $336,000, 1991 - $183,000, and 1992 - $130,000.    Husband

contends that although he still owns the properties from which

his "gross incomes" were derived, he makes payments on sums due

for loans secured by those properties which result in zero

spendable income.
        The determination whether a spouse is entitled to support

and, if so, how much, is a matter within the discretion of the

trial court and will not be disturbed on appeal unless it is

clear that some injustice has been done.     Oliver v. Oliver, 202




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Va. 268, 272, 117 S.E.2d 59, 62 (1960); see also Dukelow v.

Dukelow, 2 Va. App. 21, 27, 341 S.E.2d 208, 211 (1986), and cases

there cited.   The judgment of the trial court is presumed correct

and we may not disturb its ruling if there is credible evidence

to support it.   Steinberg v. Steinberg, 11 Va. App. 323, 329, 398

S.E.2d 507, 510 (1990); Code § 8.01-680.   Thus, in regard to the

amount of the spousal support award, we will reverse such award

only for an abuse of discretion or the judge's failure to

consider all the factors set forth in Code § 20-107.1.     Barnes v.

Barnes, 16 Va. App. 98, 103, 428 S.E.2d 294, 298 (1993).    It is

presumed further that a trial court properly based its decision

on the evidence presented, Williams v. Williams, 14 Va. App. 217,

221, 415 S.E.2d 252, 254 (1992), and on appeal the trial court's

findings must be accorded great deference.   Bandas v. Bandas, 16

Va. App. 427, 432, 430 S.E.2d 706, 708 (1993); Hulcher v.

Hulcher, 177 Va. 12, 18, 12 S.E.2d 767, 769 (1941).   A review of

the memorandum filed by the trial court and the decree of divorce

makes it clear that the trial court properly considered the

provisions of Code § 20-107.1.

          In awarding spousal support, the chancellor
          must consider the relative needs and
          abilities of the parties. He is guided by
          the nine factors that are set forth in Code
          § 20-107.1. When the chancellor has given
          due consideration to these factors, his
          determination will not be disturbed on appeal
          except for a clear abuse of discretion.

Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829




                                 - 4 -
(1986).

     In the commissioner's report, considered by the trial court,

was the following:
            The most difficult area in which to arrive
          at a confident result is the spousal support
          request made by the wife. Throughout this
          couple's marriage, there is no question that
          their standard of living was very high. They
          traveled extensively, had a beautiful home,
          and had a boat at the end of their marriage
          which had a mortgage payment of $5,000 per
          month. The wife's expert testified that she
          will need $160,000 per year in support and
          maintenance, which is $61,000 for taxes and
          $99,000 per year for expenses. The wife
          discounts this figure and requests the amount
          of $12,000 per month or $144,000 per year.
            Exhibit #12 for the wife indicates that the
          husband's gross income on his federal tax
          returns has been $341,000 (1989); $632,000
          (1990); and $332,000 (1991). Exhibit #15 of
          the husband shows his wage earnings from his
          business at $253,000 (1989); $336,000 (1990);
          $183,000 (1991); and $130,000 (1992). For
          1993, his salary appears to be in the area of
          $125,000. In addition to his salary,
          however, the husband has also received a
          payment of $120,000 from his business in rent
          each year for the Grafton property, and his
          various accountings indicate a number of
          other additions to income from various
          investments on an annual basis. However, the
          husband also has a significant number of
          required investment expenditures, which, if
          not made, will decrease or ruin the value of
          his business interests and, if non-payment is
          assumed, necessitate a re-evaluation and a
          reduction in the value of the marital
          property under § 20-107.3. The most current
          salary statement offered in evidence before
          the commissioner is for 1992 in the amount of
          $130,000, and the commissioner will find that
          the annual income to Mr. Barrs is $250,000
          per year, including the rent received from
          his company for the Grafton real estate.

                 *    *    *    *      *   *   *



                               - 5 -
            After considering the award of marital
          property recommended under § 20-107.3, and
          after a consideration of the statutory
          factors set forth in § 20-107.1, the
          commissioner recommends that the wife be
          awarded the amount of $8,000 per month, until
          further order of the court. 1


The trial court accepted the recommendations of the commissioner

and the final divorce decree ordered husband to pay monthly to

wife the sum of $8,000 and, in addition, an amount not to exceed

$300 per month toward health insurance premiums.     On appeal, a

decree which approves a commissioner's report will be affirmed

unless plainly wrong.   Sprott v. Sprott, 233 Va. 238, 240, 355

S.E.2d 881, 882 (1987).
            In a divorce case, where a claim for
          alimony is made by a wife who has been held
          blameless for the marital breach, the law
          imposes upon the husband the duty, within the
          limits of his financial ability, to maintain
          his former wife according to the station in
          life to which she was accustomed during the
          marriage.


Klotz v. Klotz, 203 Va. 677, 680, 127 S.E.2d 104, 106 (1962).

Where the wife is possessed of a sizeable estate in her own

right, the law does not require her to invade that estate to

relieve the obligation of her former husband whose actions have

brought an end to their marriage.      Id.; Ring v. Ring, 185 Va.

269, 273-74, 38 S.E.2d 471, 473 (1946).
            In fixing the amount of alimony, the court
          must look to the financial needs of the wife,
     1
      The commissioner also recommended that husband be required
to pay wife a sum not to exceed $300 per month toward the cost of
medical insurance premiums in accord with Code § 20-107.1.



                               - 6 -
             her age, physical condition and ability to
             earn, and balance against these circumstances
             the financial ability of the husband to pay,
             considering his income and his ability to
             earn. The amount awarded must, in any event,
             be fair and just under all the circumstances
             of the case.


Klotz, 203 Va. at 680, 127 S.E.2d at 106 (citations omitted).

     Husband contends that the trial court abused its discretion

when it made the spousal support award because his annual income

is limited to $130,000.    That assertion fails to consider the

requirement that a fair allotment to a wife is determined by

balancing her needs against the ability of the husband to pay,

considering both his actual earnings and his capacity to earn,

whether from his personal efforts or his property.     Id.; Taylor

v. Taylor, 203 Va. 1, 3, 121 S.E.2d 753, 755 (1961).
            In determining the propriety of allowing
          alimony and in fixing its amount, there must
          be taken into consideration, along with all
          of the other circumstances of the particular
          case, the needs of the wife and the ability
          of the husband to pay--not necessarily the
          amount of his actual earnings, but his
          ability to earn.

Hawkins v. Hawkins, 187 Va. 595, 600, 47 S.E.2d 436, 439 (1948)

(citations omitted).

     As noted above, the "ability of the husband to pay is

determined not necessarily by the amount of his actual earnings,

but also by his ability to earn and what, under all the

circumstances [including his possessions], will be a fair and

just allotment."     Id. at 600-01, 47 S.E.2d at 439 (alteration in

original).    In reaching its decision, income averaging is an



                                 - 7 -
acceptable method of determining a spouse's ability to earn.     See

Russell v. Russell, 216 Va. 432, 219 S.E.2d 689 (1975); Klotz,

203 Va. 677, 127 S.E.2d 104; Ring, 185 Va. 269, 28 S.E.2d 471.

     In view of the history of husband's ability to earn income

and considering the investment properties he owns, we cannot say

that the trial court's decision was plainly wrong or that it

abused its discretion in making the spousal support award of

which husband complains.
     Accordingly, the judgment of the trial court is affirmed.

                                                        Affirmed.




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