COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Russell and Malveaux Argued at Lexington, Virginia

DANIEL JASON RAKES MEMORANDUM OPINION * BY v. Record No. 1038-18-3 JUDGE GLEN A. HUFF MARCH 12, 2019 TERESA RENEE GRIGGS RAKES

FROM THE CIRCUIT COURT OF THE CITY OF SALEM Charles N. Dorsey, Judge Melvin L. Hill for appellant. Monica Taylor Monday (Gentry L ocke, on brief), for appellee.

Daniel Jason Rakes (“husband”) appeals a decree of divorce from Teresa Renee Griggs Rakes (“wife”) granted by the Cir cuit Court of the City of Sale m (“trial court”). On appeal, husband’s single assignment of erro r contends that the trial co urt erred in granting the divorce on grounds of constructive desertion. He asserts three arguments in support of the assignment of

error. This Court affirms the trial cour t’s grant of a fault-based div orce. Husband failed to preserve two arguments under Rule 5A:18. Husband’s remaining a rgument is based on a mischaracterization of the trial court’s ruling. This Court is unable to address an assignment of error that is not based on the a ctions of the trial court.
I. BACKGROUND “Under familiar principles we vi ew [the] evidence and all reaso nable inferences in the light most favorable to the prev ailing party below. Where, as here, the court hears the evidence

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - ore tenus , its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to suppor t it.” Pommerenke v. Pommer enke, 7 Va. App. 241, 244 (1988) (quoting Martin v. Pittsylvania County Dep’t of Social S ervs., 3 Va. App. 15, 20 (1986)). So viewed, the evidence is as follows. Husband and wife were married for twenty-four years and raised two children. In November 2015, wife found three pi ctures of husband cross-dress ing. Two photographs pictured husband wearing women’s clothing outside in public, and another photograph showed husband in a vehicle wearing fishnet hos e and women’s underwear with an other man’s hand on his inner thigh. Husband was depicted weari ng different out fits in the v arious photographs. Wife testified that after viewi ng the photos she felt “shocked, hurt, betrayed, angry” and as though she had suffered an “undesc ribable death” with everyt hing she knew “gone in an instant.” When asked about his conduct, husband said he dresse d like a woman because wife would not dress that way. Husba nd also refused to identify the other man in the photograph. After wife discovered the photos, t he parties slept in separate bedrooms because wife was concerned that husband may have c ontracted sexually transmitted diseases through his extra-marital engagements. Wif e and husband continued to live in the same residence, albeit separate and apart, while both pa rties engaged in counseling. Nearly one year later, however, husband moved out of the marital home to live with his parents. The parties formally separated on November 30, 2016. Wife filed f or divorce on January 20, 20 17 on the grounds of cruelty and desertion. At trial, on April 16, 2018, husband c ontended that the court s hould grant the divorce based on the parties’ separation f or more than a year and that the trial court should not grant a constructive desertion fault-ba sed divorce because there was on ly one instance of cross-dressing. Nevertheless, the trial court gr anted a fault- based divorce on grounds of constructive desertion.- 3 - Husband disputed the amounts aw arded for spousal support and at torney’s fees. The trial court awarded wife $2,250 in monthly s pousal support and directed hus band to pay wife’s attorney’s fees in the amount of $10,000. This appeal followed.
II. ANALYSIS On appeal, husband contends that the trial court erred in grant ing a divorce on grounds of constructive desert ion. Although wife clai ms husband’s assignm ent of error fails to satisfy the specificity requirements, this Court finds that husband’s assig nment of error is sufficient under Rule 5A:20(c). Wife correctl y asserts, however, that two of hu sband’s arguments were not preserved at trial as require d pursuant to Rule 5A:18. Moreove r, his third argument does not address the actual ru ling of the trial cour t. Therefore, this Court affirms the decision of the trial

court. A. Specificity of Husba nd’s Assignment of Error Wife alleges that husband’s assi gnment of error violates Rule 5 A:20(c) because it does “not identify any specific error in the trial court’s construct ive desertion ruling.” Husband’s assignment of error states: “Th e trial court erred in finding that a divorce should have been granted on the grounds of constructive desertion.” Wife conten ds that husband’s assignment of error fails to “lay its finger on the error.” The requirements of Rule 5A:20 a re not jurisdict ional, and ther efore this Court must “consider whether any failure to s trictly adhere to the require ments of Rule 5A:20(e) is insignificant, thus allowing the court to address the merits of a question presented.” Jay v. Commonwealth, 275 Va. 510, 520 (2008). A lthough fairly general , husband’s assignment of error “‘adequatel y puts the court and opposing counsel on notic e’ regarding what alleged errors the appellant [seeks] to have r eversed, and thus prevent[s] both the court and opposing counsel- 4 - from having to search through the e ntire record.” Commonwealthv. Herring, 288 Va. 59, 68 (2014) (quoting Findlay v. Commonwealth, 287 Va. 111, 116 (2014 )). Husband does not state merely that the divorce decree is in error; he states that the trial court erred by granting the divorce “on the grounds of constr uctive desertion.” Husband’s assignment of error is not so flawed that it prevents this C ourt from considering his argumen ts. Therefore, this Court rejects wife’s claim that husband’s a ssignment of error is too vague. B. Husband failed to present tw o of his arguments to the trial court Although husband’s assignment of erro r is sufficient, he raises two arguments on appeal that he did not presen t to the trial court. Under Rule 5A:18, a specific argument must be made to the trial court at a time to allow the trial court to correct a ny error, or else the error will not be considered on appeal. Mounce v. Commonwealth, 4 Va. App. 433, 435 (1987). Rule 5A:18 requires that “an objection [be] stated with reasonable certain ty at the time of the ruling.” Further, “[m]aking one specific argument on an issue does not p reserve a separa te legal point on the same issue for review.” See Clark v. Commonwealth, 30 Va. App. 406, 411-12 (1999) (preserving one argument on suffi ciency of the evidence does no t allow argument on appeal regarding other sufficiency quest ions). Indeed, “the primary f unction of Rule 5A:18 is to alert the trial judge to possible erro r so the judge may consider the issue intelligently and take any corrective actions necessary.” Neal v. Commonwealth, 15 Va. Ap p. 416, 422 (1992) (internal citation omitted). Therefore, thi s Court does not consider iss ues that were not rai sed in the trial court. West Alexandria Prop., Inc . v. First Virginia Mortgage and Real Estate Inv. Trust, 221 Va. 134, 138 (1980) (“On appeal, though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but wer e not raised for the benefit of the lower court.”); Fl oyd v. Commonwealth, 219 Va. 575, 584 (19 78) (holding that appellate- 5 - courts will not consider an argument that differs from the spec ific argument presented to the trial court, even if it relates to the same general issue). Here, husband raises three argum ents on appeal. Husband argues that there was no evidence of cruelty, that husba nd’s misconduct does not rise to a level that makes the marital relationship intolerable or une ndurable, and that one instance of misconduct cannot form the basis of constructive deserti on. At the trial court, however, husband relied solely on the argument that one instance of misconduct is not enough to form the basis of a constructive desertion claim. Because his othe r two arguments were not ment ioned at trial and are presented for the first time on appeal, t hey are barred by Rule 5A:18, an d this Court will not consider them. C. Husband’s remaining argument does not address the trial cou rt’s findings Husband’s only remaining argumen t is that one in stance of cruel ty cannot sustain a constructive desertion claim. T his Court will not consider an argument that does not address the actual ruling of the trial cour t. Teleguz v. Commonwealth, 273 Va. 458, 471 (2007) (“Accordingly, these assignmen ts of error do not address a ruli ng made by the trial court and we do not consider them.”). Although husband argues one instance of cross-dressing cannot sustain a constructive desertion claim , neither the evidence at trial n or the trial court’s findings suggest that the trial court found cons tructive desertion based on a si ngle incident. Considering the evidence in the light most favorable to wife, a s this Court must, the evidence supports a con clusion that husband’ s cross-dressing wa s an ongoing behavior rather than a one-time incident and the trial court viewed it as an on going behavior. First, the photographs of husband cross-dres sing show him wearing two diff erent sets of women’s clothing, suggesting at least tw o instances of cross-dressing. Second, the trial court found husband had stopped cross-dressing by the time of trial and had promised, during therapy, to stop cross-dressing. The fact husband “ stopped” implies the trial c ourt considered husband’s- 6 - cross-dressing an ongoing behavior, not a single incident. Thi rd, the trial court referred to husband’s cross-dressing as a “l ifestyle” when asking whether h usband intended to continue cross-dressing, and husband accepted that characterization when he testified he had “given up that lifestyle.” Aga in, discussing cross-dr essing as a “lifest yle” suggests the trial court considered it an ongoing, repeate d behavior, not a single incid ent. Thus, nothing in the record suggest s the trial court granted a constructive desertion, fault-based divorce, on a single incident of cross-dressing. R ather, the trial court granted the divorce based on husband’s “lifestyle” of cross-dressing. Beca use husband’s sole remaining argument does not address the ac tual finding of the trial court , this Court will not consider it further. D. Attorney’s Fees “The decision of whether to awar d attorney’s fees and costs inc urred on appeal is discretionary.” Friedman v. Smith, 68 Va. App. 529, 545 (2018) ; Rule 5A:30(b). The rationale for the appellate court being the proper forum to determine the propriety of an a ward of attorney’s fees for effo rts expended on appeal is clear. The appellate court has the opportunity to view the record i n its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment. O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). Here, a fter considering the arguments presented and the equities of the circumstances, this Court dec lines to award wife appellate attorney’s fees.
III. CONCLUSION The only argument husband preserve d for appeal does not address the actual findings of the trial court. Therefore, this Court finds husband’s new arg uments waived and his remaining argument without support. Accordin gly, this Court affirms the trial court’s decision. Affirmed.