COURT OF APPEALS OF VIRGINIA





Present:    Chief Judge Fitzpatrick, Judge Clements and Senior Judge Coleman

Argued at Alexandria, Virginia





ROY L. PEARSON, JR.

		                                                                      MEMORANDUM OPINION? BY

v.	Record No. 0561-04-4	CHIEF JUDGE JOHANNA L. FITZPATRICK

		                                                                                     MARCH 8, 2005

RHONDA S. VANLOWE	





	FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Paul F. Sheridan, Judge Designate 



		Roy L. Pearson, Jr., pro se.



		Julie Hottle Day (Robert G. Culin, Jr.; Culin, Sharp & Autry, PLC, 

on brief), for appellee.





	Roy L. Pearson, Jr. (husband) appeals from a final decree of divorce awarded to Rhonda S. 

VanLowe (wife) on the ground that the parties lived separate and apart without cohabitation for one 

year pursuant to Code  20-91(A)(9)(a).  Husband contends that the trial court erroneously:  

1) granted the divorce based on a separation date of October 15, 1999, or October 21, 2001; 

2) denied his request for sanctions pursuant to Code  8.01-271.1; 3) denied his request for spousal 

support; 4) failed to grant him a reservation of future spousal support; and 5) awarded wife 

attorney's fees.  He also requests recusal of the trial judge on remand.  For the reasons that follow, 

we affirm the trial court on all issues except husband's request for a reservation of future support.





I.  SEPARATION BACKGROUND

"On appeal, we construe the evidence in the light most favorable to [wife], the prevailing 

party below, granting to [her] evidence all reasonable inferences fairly deducible therefrom."  

Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing McGuire v. 

McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).  

Husband and wife were married on June 25, 1994.  The couple had no children together, 

although wife had an adult daughter from a prior relationship.  Both husband and wife are 

attorneys.  Wife was employed with Rolls Royce of North America, Inc. and with American 

University.  Husband worked for the District of Columbia for over twenty years before losing his 

job.  During the marriage, the couple lived in Reston.  However, in the spring of 1997, wife 

discovered that husband had rented another residence in Washington, D.C.  Wife testified that 

husband moved out of the couple's Reston home in October 1997.  Soon afterwards, she moved 

to Massachusetts to take a job at Reebok International.  Husband told wife at this time that there 

was no chance of reconciliation.  Wife returned to Reston in May 1999, and the couple rented an 

apartment together and opened a joint checking account.  

In October 1999, wife's daughter (Melinda), age 24 at that time, had become a source of 

conflict in the couple's relationship.  Wife testified that husband had forbidden Melinda from 

coming to the couple's house, and said that he would leave if she did.  When Melinda came to 

the house to visit her mother one day in early October, husband became angry and announced he 

was leaving.  He began to move his belongings out of the house the following day.  

On October 12, 1999, wife wrote husband a letter indicating that she considered the 

marriage over, and asked him for a separation agreement.  The trial court found that the date of 

separation was October 15, 1999, as wife asserted in her pleadings.  Wife contends that she 

intended for the separation to remain permanent from October 15, 1999, forward, unless husband 

met her conditions for reconciliation.  These conditions included husband changing his behavior 

toward the couple's family, changing his controlling behavior, and becoming financially 

responsible.  She contends that because husband failed to meet these conditions during the 

separation period, no reconciliation was possible.  Wife testified that after the October 1999 

separation, the parties shared no marital responsibilities, maintained separate finances, and lived 

in separate residences.  Neither party possessed a key to the other's residence.  She also testified 

that husband sent a formal announcement of their separation to her and at least one family 

member.  Sheila Harris-El, one of wife's witnesses, testified that on two occasions wife 

"emphatically stated" her intent to remain permanently separated from husband.  

Husband contends that although the parties had limited contact for approximately six 

months following October 1999, wife's pleaded separation date, wife subsequently relinquished 

her intent to remain permanently separated.  He argues that the couple engaged in occasional 

sexual relations, did not remain separate and apart, and effectively resumed the marital 

relationship.  

Wife conceded that during April, March, and June of 2000, after approximately six 

months of separation, the parties engaged in occasional sexual intercourse.  However, she 

testified that she did not believe or intend that the sporadic intercourse constituted a resumption 

of the marital relationship.  She also testified that they began a "dating relationship" during this 

period, but that they did not represent to family or friends that they were husband and wife.  

Many of their encounters ended in arguments and "with both of us leaving and going our own 

separate ways."  They rarely spent the night together.  During the separation period they 

exchanged letters and postcards discussing their relationship.  Neither party ever indicated to 

family or friends that they had reconciled after October 1999, and wife testified that in June of 

2000 when her daughter came to live with her, "that really changed the dynamic of any kind of 

reconciliation that [they] would have had."  

On October 21, 2001, wife left husband a voice mail message stating that there was no 

possibility of "moving the relationship forward."  She testified that she never considered 

reconciliation possible after this date.  There is no evidence of cohabitation or sexual contact 

after October 21, 2001.  

The trial court found that "wife's intent . . . was to permanently end the marriage," 

despite her sometimes affectionate correspondence to husband.  It found that wife maintained 

"her desire to separate [sic] the marriage unless" husband met certain conditions.  It also found 

that wife's references to marriage counseling and reconciliation were attempts to improve 

communications with husband, indicating her intent "to ease the hardship of getting out of the 

marriage on everybody," and "not an intent to resume the marriage."  Although wife admitted 

occasional sexual intercourse, the trial court found that this happened on a sporadic basis.  The 

trial court found that wife never had "a finished hope" or the "aspiration completed of an actual 

reconciliation."  The trial court established an alternative separation date of October 21, 2001 in 

case "an appellate court reverses or undoes the fact findings and the conclusions just reached by 

this trial judge."  

II.  PROCEDURAL BACKGROUND

On February 14, 2003, wife filed her bill of complaint for divorce on the grounds of 

having lived separate and apart from October 15, 1999.  She made no request for a determination 

of equitable distribution or spousal support.  Husband filed a demurrer to wife's bill of complaint 

on April 22, 2003, alleging wife failed to state a claim upon which relief can be granted.  The 

trial court denied his demurrer at a May 16, 2003 hearing.  

Husband filed an answer to wife's bill of complaint on May 19, 2003, and sought an 

award of spousal support without requesting a reservation, and made no request for equitable 

distribution.  In his answer, husband again pled a failure to state a claim upon which relief could 

be granted.  He also alleged that wife's grounds for divorce were fraudulent and misleading.  

	On May 23, 2003, husband requested pendente lite spousal support, stating that he was 

receiving unemployment benefits from the District of Columbia, his former employer, and 

requested a lump sum of $5,000 from wife to retain counsel, and $5,000 for support and 

maintenance.  The trial court denied the motion.

	On July 18, 2003, husband requested that sanctions be imposed pursuant to Code 

 8.01-271.1 against wife and her attorneys because her bill of complaint was not well grounded 

in fact nor warranted by existing law.  On December 27, 2003, husband filed his third motion to 

compel discovery and for sanctions, alleging that he was prejudiced by wife's failure to timely 

produce financial information.  On January 7, 2004, at the final pretrial hearing on discovery, the 

trial court denied husband's motion to compel wife to respond to his two hundred forty-eight 

requests for admissions, ruling that the number of requests was excessive on its face.  The trial 

court also required wife to comply with its previous order compelling the production of her 

resume.  At the same hearing, the trial court reserved ruling on husband's motion to compel 

discovery and for sanctions, pending either party's demonstration of prejudice in the absence of 

wife's missing tax returns or credit card statements at trial.  

	The trial court awarded wife a final decree of divorce on the ground that the parties lived 

separate and apart, without any cohabitation and without interruption for a period in excess of 

one year from October 15, 1999, with an alternative date of October 21, 2001.  The trial court 

denied husband's request for spousal support, denied his request for Code  8.01-271.1 sanctions 

and discovery sanctions, and ordered him to pay $12,000 in attorney's fees to wife.   

	The trial court entered the final decree on February 12, 2004 with husband's exceptions 

attached, including his assertion that the trial court erred in failing to grant him a reservation of 

spousal support. 

III.  SEPARATION DATE

	Husband contends that the parties did not live separate and apart from the date of 

separation as required by Code  20-91(A)(9)(a).  He argues that wife's hope for reconciliation, 

and the parties' "dating" relationship and sexual contact during the separation period, dictated a 

different result.  We disagree.

"A trial court's decision, when based on an ore tenus hearing, is entitled to great weight, 

and will not be disturbed unless plainly wrong or without evidence to support it."  Lanzalotti v. 

Lanzalotti, 41 Va. App. 550, 554, 586 S.E.2d 881, 882 (2003).  "The credibility of witnesses and 

the weight to be accorded their testimony is a matter within the sole province of the finder of 

fact."  Courembis v. Courembis, 43 Va. App. 18, 36, 595 S.E.2d 505, 514 (1999).  

	Code  20-91(A)(9)(a) provides for a no-fault divorce "[o]n the application of either 

party if and when the husband and wife have lived separate and apart without any cohabitation 

and without interruption for one year."  The separation must be "coupled with an intention on the 

part of at least one of the parties to live separate and apart permanently, and [this] intention must 

be shown to have been present at the beginning" of the separation period.  Hooker v. Hooker, 

215 Va. 415, 416, 211 S.E.2d 34, 36 (1975).  This is a "fact-based inquiry, requiring examination 

of all the circumstances before the court."  Bchara v. Bchara, 38 Va. App. 302, 310, 563 S.E.2d 

398, 402 (2002).  Circumstances to be considered in making this determination include whether 

sexual relations resumed, whether consortium was permanent or intermittent, whether the parties 

shared familial and financial responsibilities, and whether the parties resumed the normal 

relationship as husband and wife with the intent to permanently reconcile.  See Jacobsen v. 

Jacobsen, 41 Va. App. 582, 590-91, 586 S.E.2d 896, 899 (2003); Hooker, 215 Va. at 416, 211 

S.E.2d at 36; Rickman v. Commonwealth, 33 Va. App. 550, 558, 535 S.E.2d 187, 190 (2000); 

Bchara, 38 Va. App. at 310, 563 S.E.2d at 402.  "The 'matrimonial cohabitation' consists of 

more than sexual relations.  It also imports the continuing condition of living together and 

carrying out the mutual responsibilities of the marital relationship."  Petachenko v. Petachenko, 

232 Va. 296, 299, 350 S.E.2d 600, 602 (1986).   "Mere casual cohabitation between the parties, 

after the separation, unaccompanied by resumption of normal married life . . . is not sufficient to 

show a reconciliation or an agreement to live and cohabit together again on a permanent basis as 

husband and wife."  Roberts v. Pace, 193 Va. 156, 159, 67 S.E.2d 844, 846 (1951).  

Properly viewed, the evidence supports the trial court's ruling that "wife's intent . . . was 

to permanently end the marriage" from the initial date of separation in 1999.   Wife testified that 

after husband moved out of the home, he sent an announcement of separation to her and at least 

one other family member.  The parties never held themselves out as a couple during the 

separation period.  She also testified that their family members, including husband's mother, 

knew that the couple was not living together.  One of wife's witnesses, Sheila Harris-El, testified 

that wife intended the separation to be permanent at the time of separation.  There is no evidence 

that the parties intended to permanently resume cohabitation, or that they resumed normal 

marital life.  They acquired separate residences and financial lives following the separation on 

October 15, 1999.  Wife purchased her own home, acquired her own credit cards, and they did 

not share funds or financial information.  The parties' "dates" and sexual relations that began 

approximately six months after October 15, 1999 were sporadic and casual.  Wife testified that 

they met "in an effort just to establish communication," and often went for weeks without 

contact.  Contrary to husband's assertion, the parties' occasional sexual intercourse does not 

constitute cohabitation.  See Petachenko, 232 Va. at 299, 350 S.E.2d at 602.   We therefore hold 

that the trial court did not err in determining the date of separation to be October 15, 1999, and 

granting wife a divorce on that basis.

IV.  SPOUSAL SUPPORT

	Husband next contends the trial court erred in failing to grant his request for spousal 

support.  On appeal, he raises numerous grounds for the error.   However he made no objection 

at the time of the trial court's denial of his request for support.  When he noted his objections to 

the trial court's final decree, he objected only to the failure of the trial court to consider wife's 

"desertion" and the proper evaluation of the required Code  20-107.1 factors.  

The trial court denied spousal support, finding as follows:

There is indeed a disproportion in income, but that disproportion in 

income is not such as to cause this Court to award spousal support 

and therefore spousal support is denied either monthly or in 

installment [sic] or a lump sum basis.  [Husband] does not have a 

need, if he's properly employed, working at one of the jobs he can 

do.



Husband made no objection at the time, and in response to the trial court's question, "What else 

do you need?" husband questioned only the court's failure to award sanctions and a 

"sequestration order."  

V.  RESERVATION OF RIGHT TO FUTURE SPOUSAL SUPPORT

	At trial, husband requested an award of spousal support, but did not specifically request a 

reservation of the right to seek future spousal support until he filed his objections to the entry of 

the final decree.  Nevertheless, he contends that the trial court erred in failing to grant him a 

reservation of the right to future support in the final decree of divorce.  We agree.

	Code  20-107.1(D) provides, in pertinent part:

In addition to or in lieu of an award pursuant to subsection C, the 

court may reserve the right of a party to receive support in the 

future.  In any case in which the right to support is so reserved, 

there shall be a rebuttable presumption that the reservation will 

continue for a period equal to 50 percent of the length of time 

between the date of the marriage and the date of separation.



"[W]here there is no bar to the right of spousal support, it is reversible error for the trial court, 

upon request of either party, to fail to make a reservation in the decree of the right to receive 

spousal support in the event of a change of circumstances."  Blank v. Blank, 10 Va. App. 1, 4, 

389 S.E.2d 723, 724 (1986).  

	While husband did not explicitly request a reservation of the right to future spousal 

support in his answer, he did so in his exceptions filed with the trial court.  See Vissicchio v. 

Vissichio, 27 Va. App. 240, 254, 498 S.E.2d 425, 432 (1998).  Accordingly, we hold that it was 

error for the trial court to omit husband's right to a reservation of future support from the final 

decree.

VI.  ATTORNEY'S FEES

	Husband next contends the trial court erred in awarding legal fees of $12,000 to wife.  

We review an award of attorney's fees for an abuse of discretion.  See Graves v. Graves, 4 

Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).  

The trial court found that husband was substantially responsible for "excessive driving 

up" of the legal costs by "threatening both wife and her lawyer with disbarment [sic]," and 

creating unnecessary litigation.  Consequently, it awarded wife $12,000 in legal fees to be paid 

by husband. 

	Credible evidence supports the trial court's ruling.  The trial court made specific findings 

concerning the award of attorney's fees, including that the litigation was disproportionately long 

despite the relative simplicity of the case and that husband "in good part is responsible for 

excessive driving up of everything that went on here including threatening both the wife and her 

lawyer with disbarment as a member of both the D.C. bar and Virginia bar," which created 

"unnecessary litigation."  Accordingly, we cannot say the trial court abused its discretion in 

awarding attorney's fees to wife.

VII.  RECUSAL ON REMAND

	 Finally, appellant contends that we should order the recusal of the trial judge on remand 

due to his conduct at trial and his failure to rule on husband's post-trial motion for 

reconsideration.  

	"Decisions regarding a judge's impartiality are to be made by the judge in the exercise of 

his or her discretion, and will be reversed on appeal only upon a finding that the court abused its 

discretion in deciding the question."  Scott v. Rutherfoord, 30 Va. App. 176, 189, 516 S.E.2d 

225, 232 (1999).  Because husband failed to raise this issue at trial and because no good cause 

otherwise exists for us to consider this issue, it is not properly before us.  See Fox v. Fox, 41 

Va. App. 88, 98, 581 S.E.2d 904, 909 (2003).  We therefore do not consider this issue on appeal.

Accordingly, we affirm in part, and reverse solely for the purpose of addressing 

husband's request for a reservation of the right to future spousal support.

Affirmed, in part,

reversed, in part,

and remanded.

? Pursuant to Code  17.1-413, this opinion is not designated for publication.



  On September 11, 2003, Judge Paul F. Sheridan was appointed judge designate as the 

judges of the 19th Judicial Circuit recused themselves.

  Twenty days after entry of the final decree, on March 4, 2004, husband filed a motion 

for reconsideration and to vacate and enter certain orders.  He requested equitable distribution 

and reservation of spousal support for the first time in this motion.  The trial court did not rule on 

the motion within twenty-one days of the filing of the final decree.  See Rule 1:1.  Husband 

noted his appeal on March 8, 2004.  

  Additionally, we note that assuming there was some question as to the allegation of the 

first date of separation, it is uncontroverted that the parties were separated from October 21, 

2001, over fourteen months before the filing of wife's bill of complaint on February 14, 2003.

  Husband also contends on appeal that the trial court erred in denying his request for 

sanctions pursuant to Code  8.01-271.1.  He argues that wife's assertion in her pleadings that 

the parties intended to remain separate and apart pursuant to Code  20-91(A)(9)(a) was not well 

grounded in fact, and was fraudulent.  However, our holding that the trial court properly awarded 

wife a final decree based on a properly pled date of separation, renders moot husband's 

contention that wife's pleadings were frivolous.

  

  Specifically, he argues the trial court failed to properly consider the requirements of 

Code  20-107.1 in making its ruling.  He first asserts that because the trial court erred in 

awarding the divorce decree based on the incorrect date of separation, it did not have the 

opportunity to consider the evidence following that date in deciding whether or not to award 

support.  Second, he contends the trial court failed to make "written findings and conclusions of 

the court identifying the factors in subsection E which support the court's order denying spousal 

support," as required by Code  20-107.1(F).  And third, husband argues the trial court skipped 

the first step required by Code  20-107.1(E) - the determination of whether to award spousal 

support - and instead went directly to a consideration of the factors required by Code 

 20-107.1(E) to determine the amount of support, incorrectly employing this analysis in 

deciding whether to award support.  He argues that before consideration of disparity of incomes, 

the trial court was required to "consider the circumstances and factors which contributed to the 

dissolution of marriage" in determining whether to award support, as required by Code 

 20-107.1(E).

  Rule 5A:18 states "No ruling of the trial court . . . will be considered as a basis for 

reversal unless the objection was stated together with the grounds therefor at the time of the 

ruling, except for good cause shown . . . ."  Husband made no objection at the time of the ruling 

as required by Rule 5A:18, and the ends of justice exception is not warranted.  Therefore, we 

cannot consider this issue on appeal.

 

 

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