COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges AtLee and Friedman

Argued by videoconference

JAMES ALBERT AURILIO

MEMORANDUM OPINION* BY

v. Record No. 0642-22-4 JUDGE FRANK K. FRIEDMAN

MAY 2, 2023

ANTONIA CONCEPCION AURILIO

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Victoria A.B. Willis, Judge

Thomas Woehrle (Woehrle Dahlberg Yao, PLLC, on briefs), for 

appellant.

Beth A. Bittel (Bittel & Anthony, P.C., on brief), for appellee.

James Albert Aurilio (husband) appeals the circuit court’s final decree of divorce. Husband 

argues that the circuit court erred by awarding Antonia Concepcion Aurilio (wife) $3,500 per month 

in “indefinite” spousal support because it failed to consider wife’s “actual gross earnings” from her 

home-based businesses and her minimal efforts to pursue “regular full-time employment.” Husband 

further asserts that the circuit court erred when it “coerced” him to pay the loan on wife’s car, 

despite the parties’ agreement that wife would be responsible for the loan payments. In addition, 

husband contends that the circuit court considered “excessive” housing expenses for wife when it 

determined spousal support notwithstanding evidence from husband’s expert about the real estate 

market. Husband also argues that the circuit court adopted an incorrect date of separation for the 

parties. Finally, husband challenges the circuit court’s ruling requiring him to maintain wife as the 

* This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
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beneficiary of his two life insurance policies. We find no error and affirm the circuit court’s 

judgment.

BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light 

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” 

Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App. 

255, 258 (2003)).

Husband and wife married on December 31, 1998, and two children were born of the 

marriage.1 During the marriage, husband was in the Marine Corps and deployed on three combat 

missions. In September 2012, husband retired from the Marine Corps, and in late 2012 or early 

2013, obtained a civilian position with the Department of Defense. Wife was the primary 

caretaker of their children. She had a high school diploma and had taken a few college courses. 

During the marriage, wife worked periodically, but her last full-time job was in 2001.

In August or September 2019, husband admitted to wife that he had reconnected on 

social media with an ex-girlfriend. Husband subsequently moved out of the marital bedroom and 

into the basement, so that he would have “time to think.” On September 22, 2019, husband 

moved out of the marital residence and moved into a townhome. Although husband opened a 

separate bank account on October 1, 2019, the parties maintained their joint bank accounts, and 

husband continued to pay the household expenses.

After husband left the marital residence, wife changed the locks and garage code, 

installed cameras on the house, and boarded up a dog door. In November 2019, wife asked 

husband if they could work on their marriage and told him that she would “do anything” to save 

1 Both children were emancipated adults when the circuit court entered the final decree of 

divorce.
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their marriage. For the next several months, husband and wife exchanged text messages, went 

on dates, and engaged in sexual relations. Wife purchased husband’s groceries, cooked his 

meals, and picked up his prescriptions. They celebrated Thanksgiving, Christmas, and their 

anniversary together. They planned trips together and held themselves out to the public as a 

married couple. Although husband never returned to the marital residence to sleep overnight, 

wife occasionally slept overnight at husband’s townhome; she did not leave any of her clothing 

or toiletries at his house.

On July 27, 2020, husband emailed wife with a proposal for separating their finances and 

told her that “the marriage [was] no longer in his best interest.” They then separated their 

financial accounts, and wife stopped grocery shopping and cooking for husband. He continued 

to pay the mortgage, homeowner’s association dues, utilities, and wife’s car payment.

In September 2020, wife filed a complaint for divorce of fault grounds of desertion and 

adultery. Wife alleged that the parties had separated as of July 27, 2020, the date of husband’s 

email. She requested an award of spousal support, equitable distribution, and attorney fees and 

costs. Husband filed a demurrer, answer to wife’s complaint, and counterclaim.2 Husband 

asserted that the parties had separated on or about September 22, 2019, when he moved out of 

the marital residence. He requested a divorce based on the parties living separate and apart for 

more than one year, as well as an award of equitable distribution and attorney fees and costs.

On September 23, 2021, the circuit court entered an “Agreed Order Pendente Lite.” The 

parties agreed to list the former marital residence for sale, and husband would continue to pay 

the mortgage and homeowner’s association fees until the house sold. Husband further agreed to 

pay the loan payment on wife’s car, name her as the sole beneficiary of a life insurance policy he 

2 The circuit court subsequently entered an agreed order sustaining the demurrer to wife’s 

allegation of adultery. Wife filed an amended complaint for divorce. Husband filed an answer 

to the amended complaint and counterclaim.
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had through his employment, and list her as a fifty percent beneficiary, with the children as the 

other fifty percent beneficiary, of the Prudential life insurance policy.3 In addition, the parties 

agreed that husband would pay wife $1,700 per month as spousal support, and wife would 

“actively seek out employment.”

On January 12, 2022, the parties appeared before the circuit court for a hearing on the 

grounds for divorce, equitable distribution, spousal support, and attorney fees. At the beginning 

of the hearing, the parties informed the circuit court that they had resolved some of the issues and 

presented the court with their written stipulations. The parties had agreed that wife would retain 

her vehicle and be responsible for the loan payment, insurance, and “all costs of ownership” for 

her car. The parties also had agreed to the division of the proceeds from the sale of the former 

marital residence.

The circuit court heard evidence that the parties had been married for twenty-three years 

and had enjoyed an “upper middle class” standard of living. Both parties testified about their 

separation. Husband argued that the date of separation was September 22, 2019, and wife 

asserted that they separated on July 27, 2020. Wife testified that the “only thing different” with 

their marital relationship between November 2019 and July 2020 was that they were living in 

separate houses. Wife, however, believed that they were “still in a marital relationship” until 

July 27, 2020, when husband sent her the email stating that the marriage was no longer in his 

best interest. According to wife, after that email, the parties “stopped being a married couple.” 

It was clear to wife that husband intended to end their marriage. On the other hand, husband 

testified that he had intended for the parties to live separate and apart permanently when he 

3 Husband had an approximately $100,000 life insurance policy through his employment

and a $750,000 life insurance policy through Prudential. During the marriage, husband had 

named wife as the sole beneficiary of both life insurance policies. After they separated, he 

“removed” her as the beneficiary of the Prudential life insurance policy and named their children 

as the beneficiaries.
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moved out of the marital residence on September 22, 2019. His “intent to be separate” never 

changed because their attempt at reconciliation “never really went beyond an attempt.”

Wife presented her monthly income and expense statement, along with supporting 

documentation. She estimated her need to be approximately $7,391 per month. Wife confirmed 

her expected expenses for rent, utilities, health insurance, and her car loan payments. After the 

marital residence had sold, wife entered into a rent-back agreement for three months. She was 

paying $2,850 per month in rent but had the option to extend the agreement with an increase in 

rent to $3,100 per month. Wife was looking for rental properties where the rent was between 

$2,100 to $3,000 per month because she needed a home with enough space for herself, the

parties’ eighteen-year-old son, and “two big dogs.” Husband presented evidence from James 

Kanala, a real estate expert, who had searched for available homes in the local area that would 

allow pets, had at least two bedrooms, and rented for less than $2,100 per month. Kanala found 

at least sixteen possible properties.

Wife also testified about her efforts to secure employment with benefits. In 2016, the 

parties had started two businesses, and wife was the sole employee for both.

4

 One business was

a “dog adventure company” in which wife exercised “off-leash” dogs, but the company 

“morphed” into a dog boarding company because that was more lucrative. The company had 

been doing “great” until the COVID-19 pandemic when people “exercised their own dogs and 

nobody was going on vacation.” Although wife worked approximately thirty-five hours per 

week, she made no profit with the dog business in 2020 and did not anticipate a profit in 2021. 

Wife started the other company to manage 100-mile and 100-kilometer trail running races. In 

2021, the ultramarathon company had received $42,067.50 in registration fees. Wife explained 

that an “extraordinary amount of money” was necessary to create “a safe race” because there 

4 Husband helped with the finances and bookkeeping for the businesses.
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were shuttle costs, rental costs, permit costs, food expenses, and equipment expenses. Wife did 

not anticipate making a profit from the 2021 race. Wife never received a salary or income from 

either business. Husband was concerned that wife was spending business proceeds on personal 

expenses.

While this litigation was pending, wife participated in a vocational evaluation, conducted 

by Scott D. Sevart. Sevart opined that wife had an earning capacity between $36,000 and 

$50,000 per year and estimated that she should have been able to find a job within four months 

of the July 2021 evaluation. Sevart recommended that based on her job history and skill set, 

wife should apply for “administrative assistant and administrative clerk and office manager 

jobs.” Sevart opined that she was “employable.”

Wife testified that she had applied for at least seventy jobs and submitted into evidence a 

spreadsheet reflecting her job search.5 Wife admitted that she did not have any limitations that 

prevented her from working. Nevertheless, at the time of the trial, wife remained unemployed.

Husband also testified about his monthly income and expenses. In addition to his annual 

salary of $114,066 for the civilian job, husband received $2,846 per month in military retirement 

pay and $3,321.85 per month in VA disability pay. Husband also received monetary gifts from 

his father from “time to time.”6

Husband’s expenses included rent and life insurance. His rent for his one-bedroom 

condominium in Reston totaled $1,800 per month. In late 2012 or early 2013, husband obtained 

the Prudential life insurance policy to cover the mortgages on the two homes that the parties

owned at the time. The policy was for term insurance for thirty years. The mortgages had been 

5 Sevart opined that wife’s job search was a “good start,” but he did not believe that she 

had applied to as many jobs as she could have since he had interviewed her.

6 Husband’s father stopped gifting money to husband after they learned that his bank 

statements were subject to discovery in the divorce matter.
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paid, so husband argued that the need for the Prudential life insurance no longer existed. Wife 

asked to be named as the sole beneficiary of both of husband’s life insurance policies.

At the conclusion of all the evidence, wife moved to strike husband’s complaint based on 

his failure to corroborate his grounds for divorce and date of separation. Husband countered that 

he had presented evidence about his intent, lease, and separate bank account. The parties then 

made their closing arguments, and the circuit court took all matters under advisement.

On February 14, 2022, the circuit court issued a letter opinion, in which it acknowledged 

the parties’ stipulations, including that wife would be responsible for the loan payment on her 

car. The circuit court granted the parties a divorce based on living separate and apart for more 

than one year. In deciding the date of separation, the circuit court considered whether the 

“period of ‘reconnection’ between the parties constituted a reconciliation” and found that the 

evidence was “on the borderline between a successful reconciliation and a failed attempt at 

reconciliation.” The circuit court compared the evidence of the parties’ reconciliation, such as 

resuming sexual relations, celebrating holidays, going on dates, planning trips together, 

maintaining finances, and running errands, against the facts of husband never moving back to the 

former marital residence, wife changing the locks, and wife never moving her personal items to 

husband’s townhome. After considering all the circumstances, the circuit court found that 

although the parties did not reside together, “the marital cohabitation continued through the 

parties’ period of ‘reconnection.’” The circuit court thus found that the parties’ date of 

separation was July 27, 2020, when husband communicated his desire to separate finances 

because he no longer thought that the marriage was in his best interest.

Next, the circuit court reviewed the equitable distribution factors in Code § 20-107.3(E). 

It classified, valued, and divided the parties’ assets and liabilities. The circuit court noted that 
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husband had paid wife’s car loan during their separation and ordered him to continue to pay it, 

contrary to the parties’ stipulation.

The circuit court then reviewed the spousal support factors from Code § 20-107.1(E). 

The circuit court considered wife’s housing expenses, including her estimated rental costs and 

the opinion of husband’s real estate expert. Contradicting its earlier ruling that husband would 

be responsible for wife’s car loan, the circuit court considered that wife would be responsible for 

her car loan payment in determining wife’s obligations for spousal support purposes. The circuit 

court also considered the evidence regarding wife’s home-based businesses and found that “they 

did not make a profit.” The circuit court found the “unrefuted testimony” was that the expenses 

associated with the ultramarathon business were “approximately equal” to its income. In 

addition, the circuit court considered wife’s efforts to find a job and found that despite her 

“good-faith effort,” she had not yet secured “employment compatible with her skills.”

The circuit court held that husband’s monthly spousal support obligation to wife would 

be $3,505 for “an indefinite period.” The circuit court focused on the parties’ incomes, the 

standard of living during the marriage, husband’s ability to pay, and wife’s need. The circuit 

court contradicted earlier statements when it noted that wife would have “no car loan as 

[h]usband will be responsible for that payment.”

The circuit court also ordered husband to maintain wife as the sole beneficiary of his life 

insurance policy through his employment and a fifty percent beneficiary of his Prudential life 

insurance policy.7 Finally, the circuit court awarded wife $25,000 in attorney fees. The circuit 

court directed the parties to prepare a final decree of divorce for entry.

7 The children remained the beneficiary for the other fifty percent of the Prudential life 

insurance policy.
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Upon receiving the circuit court’s letter opinion, husband moved to clarify the rulings 

regarding the responsibility for wife’s car loan. Husband emphasized that the parties had agreed 

that wife would be responsible for her car loan, which the circuit court noted in parts of its letter 

opinion, yet it also ordered husband to pay the car loan in other parts of the letter opinion.

At a hearing on husband’s motion to clarify, the circuit court acknowledged that its letter 

opinion contained a scrivener’s error. Husband asked that the circuit court’s order reflect the 

parties’ stipulation that wife would be responsible for her car loan, and he argued against any 

increases to his spousal support obligation to offset the cost of the loan. Wife then argued that 

the circuit court’s spousal support award did not encompass her obligation to pay the car loan. 

Wife asked the circuit court to increase her spousal support award “to cover the cost of that car 

payment”; otherwise, she would be “severely financially prejudice[d].” Husband responded that 

wife should not get “an additional windfall” for a clerical error.

After reviewing its notes, the circuit court explained that it had intended for husband to 

pay the car loan. The circuit court offered to increase his monthly spousal support obligation by 

$500 “until the loan is paid in full” and include a $500 deduction after the loan is paid. Husband 

responded that “the cleanest way to do it is rather than go through that analysis just have him be 

responsible for the car.” The circuit court found that husband was “agreeing to pay it” and wife 

accepted that resolution. The parties handwrote the changes to the final decree of divorce, which 

the circuit court then entered. Husband appeals.

ANALYSIS

I. Spousal Support

Husband challenges the circuit court’s spousal support award of $3,505 per month to 

wife. “We begin our analysis by recognizing the well-established principle that all trial court 

rulings come to an appellate court with a presumption of correctness.” Wynnycky v. Kozel, 71 
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Va. App. 177, 192 (2019) (quoting Stiles v. Stiles, 48 Va. App. 449, 453 (2006)); see also Sobol 

v. Sobol, 74 Va. App. 252, 272 (2022) (same). “A trial court has broad discretion in setting 

spousal support and its determination will not be disturbed except for a clear abuse of 

discretion.” Nielsen, 73 Va. App. at 390 (quoting Robinson v. Robinson, 50 Va. App. 189, 194

(2007)). “Spousal support determinations typically involve fact-specific decisions best left in the 

‘sound discretion’ of the trial court.” Id. (quoting Brandau v. Brandau, 52 Va. App. 632, 641

(2008)). “Whether and how much spousal support will be awarded is a matter of discretion for 

the trial court.” Id. (quoting McKee v. McKee, 52 Va. App. 482, 494 (2008) (en banc)).

A. Wife’s Income

The circuit court found that wife had “no income.” The circuit court further found that 

although wife’s racing business “brought in $42,067.50 in registration fees in 2021,” her 

“unrefuted testimony” was that the expenses associated with the race were “approximately 

equal” to the income received from the registration fees.

Relying on language from Code § 20-108.2(C), defining gross income and the “deduction 

of reasonable business expenses for persons with income from self-employment,” husband 

argues that the circuit court failed to consider wife’s “actual gross earnings” from her racing 

business. Husband contends that wife failed to present “any specific evidence” of expenses to be 

deducted from the $42,067.50 that the business had received. Rather, she testified about generic 

expenses for the race, such as shuttle costs, rental costs, permit costs, food expenses, and 

replacement of equipment, without further explanation or documentation. Husband claims that 

wife had paid her personal expenses, including her attorney fees, using business proceeds. 

Husband asserts that the circuit court “should have counted [w]ife’s gross receipts as income to 

meet her financial needs,” especially because she offered no proof of her actual expenses.
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Code § 20-108.2, however, governs child support, not spousal support. This Court has 

previously held that “[t]he procedure for calculating child support is somewhat more rigid” than 

that for spousal support. Calvert v. Calvert, 18 Va. App. 781, 784 (1994). “In awarding spousal

support, the chancellor . . . is guided by the . . . factors that are set forth in Code § 20-107.1.” Id.

(alterations in original) (quoting Collier v. Collier, 2 Va. App. 125, 129 (1986)); see also Chaney 

v. Karabaic-Chaney, 71 Va. App. 431, 435 (2020) (“In determining spousal support, the . . . 

court must consider all factors contained in Code § 20-107.1.” (quoting Rowe v. Rowe, 24 

Va. App. 123, 139 (1997))). The statutory factors for spousal support do not include a definition 

of gross income; instead, one factor is “[t]he obligations, needs and financial resources of the 

parties, including but not limited to income from all pension, profit sharing or retirement plans, 

or whatever nature.” Code § 20-107.1(E)(1).

The circuit court considered the statutory factors and found that wife had no income. 

Wife testified that she had not received a salary from the business previously and did not 

anticipate receiving any income in 2021. Accordingly, the record supports the circuit court’s 

finding that wife earned no income from the racing business.

B. Wife’s Efforts to Find Employment

Husband argues that the circuit court erred by awarding wife spousal support when she 

failed to prove that she had “adequately” pursued employment. Husband relies on the vocational 

expert’s opinion that based on her skills and work history, wife should have been able to obtain a 

job, by November 2021, earning between $36,000 and $50,000 per year.

“Under appropriate circumstances, a trial court may impute income to a spouse when 

calculating a support award.” Collins v. Leeds, 69 Va. App. 1, 8 (2018). “The decision to 

impute income is within the sound discretion of the trial court and its refusal to impute income 

will not be reversed unless plainly wrong or unsupported by the evidence.” Id. at 9 (quoting 
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McKee, 52 Va. App. at 489). The circuit court considered the vocational expert’s testimony, as 

well as wife’s testimony that she had applied for seventy-one jobs. It rejected the expert’s 

opinion that the “seventy-one applications over a six-month period [was] not very many.” “It is 

well established that the trier of fact ascertains a witness’ credibility, determines the weight to be 

given to their testimony, and has the discretion to accept or reject any of the witness’ testimony.” 

Sobol, 74 Va. App. at 272 (quoting Anderson v. Anderson, 29 Va. App. 673 (1999)).

After hearing all the evidence and argument, the circuit court found that wife had “been 

making a good-faith effort to find employment compatible with her skills but ha[d] not yet 

succeeded.” Although wife had developed “event planning and business management skills 

through her dog boarding and ultramarathon businesses,” the circuit court also considered that 

wife had “only a high school diploma and ha[d] no recent work experience.” The record 

supports the circuit court’s finding that wife was making a “good-faith effort” to secure 

employment, as well as its ruling not to impute income to her.

C. Wife’s Car Loan Payment

Husband argues that the circuit court erred when it ordered him to pay wife’s car loan 

payment despite the parties’ agreement that she would be responsible for the loan. Husband 

contends that he was “coerced” into accepting responsibility for the loan payment to avoid a 

greater spousal support obligation.

In its letter opinion, the circuit court acknowledged the parties’ stipulations, including 

that wife would be responsible for her car loan payment. Nonetheless, it erroneously found in 

the equitable distribution and spousal support rulings that husband would be responsible for the 

car loan payment.

When husband sought clarification of the circuit court’s ruling, the circuit court 

acknowledged that there was a scrivener’s error in its letter opinion and confirmed the parties’ 
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stipulation. The circuit court also acknowledged that it could not change the parties’ agreement. 

After reviewing the parties’ income and expense statements, including wife’s income and 

expense statement that included the car loan payment, the circuit court had intended for the 

spousal support award to include the amount of the car loan. It suggested increasing husband’s 

support obligation by $500 until the loan was paid in full, and then deducting $500 once the loan 

was paid. Husband, however, took the position that “the cleanest way” to accomplish the circuit 

court’s intent was to make “him be responsible for the car.” Wife agreed to that procedure.

Husband now argues, however, that the circuit court did not follow the parties’ 

stipulation that wife would be responsible for the car loan. Husband’s arguments to the contrary 

notwithstanding, there is no evidence that he was “coerced” into paying the car loan. In fact, he 

suggested that the best approach was to “just have him be responsible for the car.” Having 

suggested, and certainly acquiesced to, this resolution, husband cannot now challenge the ruling. 

Husband is not “permitted to approbate and reprobate, ascribing error to an act by the trial court 

that comported with his [sworn] representations.” Asgari v. Asgari, 33 Va. App. 393, 403 

(2000); see also Cody v. Commonwealth, 68 Va. App. 638, 665 (2018) (“A party may not 

approbate and reprobate by taking successive positions in the course of litigation that are either 

inconsistent with each other or mutually contradictory.” (quoting Cangiano v. LSH Bldg. Co., 

271 Va. 171, 181 (2006))).

D. Wife’s Housing Expenses

Husband next argues that the circuit court erred by considering wife’s “excessive” 

housing expenses which were “nearly double the reasonable cost of housing estimated by 

husband’s expert.” At the time of the circuit court hearing, the former marital residence had 

sold, and wife was paying $2,800 per month under a rent-back agreement. Wife estimated her 

monthly housing expenses would be between $2,100 and $3,000 for a home with enough room 
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for herself, the parties’ eighteen-year-old son, and their two large dogs. Husband presented 

evidence from a real estate expert that there were suitable housing options available in the area 

for rent between $1,300 and $2,100 per month. Husband asserts that the circuit court should 

have placed more weight on the expert witness’ testimony, rather than wife’s “guestimate of her 

housing expense.”

Husband admits that he did not preserve this argument for appeal but asks this Court to 

consider it under the good cause exception of Rule 5A:18.8 Husband contends that he did not 

raise it during the hearing on his motion to clarify because the circuit court had “veered to a new 

idea without any notice” to husband of altering his spousal support obligation because of the 

scrivener’s error in the letter opinion. Husband was “focused on the stipulation concerning the 

car loan and did not anticipate the reconsideration of the spousal support award.” Husband 

contends that he did not realize until he was “preparing this appeal” that the circuit court’s 

spousal support award “neatly added to within a few dollars” of wife’s estimated housing 

expense of $2,800 and health insurance expense of $640. Husband acknowledges that he did not 

consider his objections and arguments regarding the housing expense “until after the period 

8

In his opening brief, husband acknowledged that this argument was not preserved 

below.

Only while preparing this appeal did [h]usband’s trial counsel 

finally observe that the sum of $3,505 from the guidelines the 

[c]ourt focused on neatly added to within a few dollars of two 

figures on [w]ife’s monthly income/expense exhibit . . . . This 

observation, by [h]usband’s trial counsel, did not occur until after 

the period within which the parties could submit motions to seek 

reconsideration of the [c]ourt’s ruling. Husband’s counsel would 

have objected to that formulation had he known.

While husband later suggested in his reply brief that the issue was preserved, his initial 

concession is more accurate.
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within which the parties could submit motions to seek reconsideration of the [circuit court’s] 

ruling.”

“The Court may only invoke the ‘good cause’ exception where an appellant did not have 

the opportunity to object to a ruling in the trial court; however, when an appellant ‘had the 

opportunity to object but elected not to do so,’ the exception does not apply.” Perry v. 

Commonwealth, 58 Va. App. 655, 667 (2011) (quoting Luck v. Commonwealth, 32 Va. App. 

827, 834 (2000)); see also Conley v. Commonwealth, 74 Va. App. 658, 682 (2022) (same). We 

find that the good cause exception does not apply here, and, in any event, the trial court’s 

findings were fully consistent with credible evidence.

II. Date of Separation

Husband argues that the circuit court erred when it agreed with wife that the parties’ date 

of separation was July 27, 2020, and not September 22, 2019. He asserts that it is “not possible 

for a couple to ‘cohabit’ if parties have separated, continue thereafter to live in separate houses, 

[and] never resume living in the same house.” Husband emphasizes that wife changed the door 

locks and the garage code at the former marital residence. Husband contends that wife “cannot 

say that the parties reconciled and bar his return to the home.”

A court may grant a divorce “[o]n the application of either party if and when they have 

lived separate and apart without any cohabitation and without interruption for one year.” Code 

§ 20-91(A)(9)(a). A 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. Andrews v. Creacey, 56 Va. App. 606, 

618 (2010) (quoting Hooker v. Hooker, 215 Va. 415, 417 (1975)). “Determination of whether 

one or both of the parties formed the intent to remain permanently separate and apart is a 

question to be determined by the trial court as the fact finder.” Friedman v. Smith, 68 Va. App. 
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529, 543 (2018). “A factual determination cannot be reversed on appeal unless it is ‘plainly 

wrong or without evidence to support it.’” Id. (quoting Congdon, 40 Va. App. at 261).

“The public policy of the Commonwealth of Virginia is to encourage reconciliation of 

separated spouses and to preserve marriage.” Jacobsen v. Jacobsen, 41 Va. App. 582, 589-90 

(2003). “A valid reconciliation requires a mutual intention to resume the marital relationship 

absent bad faith.” Id. at 591. “Reconciliation must exhibit proof that the parties intend to live 

together as husband and wife and take up their respective roles in the relationship.” Id. at 590. 

The court considers “a couple’s married life as it existed before they separated.” Id.

After considering “all the circumstances,” the circuit court found that “the marital 

cohabitation continued through the parties’ period of ‘reconnection.’” Although the parties did 

not live together, the circuit court found that they “carr[ied] out the mutual responsibilities of the 

marital relationship.” Petachenko v. Petachenko, 232 Va. 296, 299 (1986). The circuit court 

considered the parties’ text messages from November 2019 through June 2020, along with the 

testimony about wife running errands for husband and cooking for him. Both husband and wife 

admitted to engaging in sexual relations, going on dates, celebrating their anniversary “in 

public,” and planning “expensive trips” together. Although husband never moved back into the 

former marital residence and wife changed the locks, they held themselves out as a married 

couple, as depicted in photographs of them “publicly displaying affection.” Moreover, the 

parties maintained joint bank accounts and husband continued to pay the household bills. The 

circuit court found that the parties did not “fully and permanently” separate until husband sent 

wife the email on July 27, 2020, stating that the marriage was no longer in his best interest and 

asking to separate their finances. We find that the totality of the evidence supports the circuit 

court’s findings.
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III. Life Insurance

Husband argues that the circuit court erred by requiring him to maintain two life 

insurance policies and name the wife as a beneficiary of each policy. Husband offered to 

maintain wife as the beneficiary of his work life insurance policy but sought to cancel the 

Prudential life insurance policy. He asserts that the purpose of the Prudential life insurance 

policy was to cover the mortgages on homes that the parties no longer owned; the policy was not 

necessary to protect wife against the loss of spousal support. He emphasizes that wife will 

receive half of the marital share of the parties’ assets, including his retirement. Husband 

contends that the life insurance policy through his employment “should be more than enough to 

protect against [w]ife’s potential loss of spousal support” at his death, and the Prudential life 

insurance policy is “completely unnecessary for this purpose.”

Code § 20-107.1:1(A) authorizes a trial court “to order that a divorcing spouse designate 

the former spouse as a beneficiary on a life insurance policy if two conditions are met.” Sobol, 

74 Va. App. at 286. “First, the life insurance policy must already be in existence for the statute 

authorizes the trial court to order the party to ‘maintain an[ ] existing life insurance policy on the 

insured party’s life that was purchased during the marriage[.]’” Id. (alterations in original) 

(quoting Code § 20-107.1:1(A)(a)). Second, “the trial court may order that the payee spouse be 

designated the beneficiary only if the ‘the payee has been designated as a beneficiary of such 

policy during the marriage[.]’” Id. (alteration in original) (quoting Code § 20-107.1:1(A)).

Thus, consistent with the requirements of Code § 20-107.1:1(A), the evidence established 

that both life insurance policies were purchased during the marriage and wife was the named 

beneficiary of both policies. Consistent with Code § 20-107.1:1(A), the circuit court’s order 

requires husband to “maintain” his life insurance policy through his employment and name wife 

as the sole beneficiary. In addition, the circuit court’s order requires husband to “maintain” the 
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Prudential life insurance policy and name wife as a fifty percent beneficiary, with the parties’ 

children “sharing” the other fifty percent. Finally, the circuit court’s order requiring husband to 

maintain the policies “for so long as he has a statutory obligation to pay spousal support” to wife 

is consistent with Code § 20-107.1:1.

Although husband argued that the Prudential life insurance policy was not necessary to 

provide for wife, the circuit court found that fifty percent of the Prudential life insurance policy 

was “adequate to provide for wife,” considering that she would be receiving a portion of his 

retirement accounts as well. Because the circuit court’s order requiring husband to maintain the 

existing life insurance policies he had during the marriage is wholly consistent with Code

§ 20-107.1:1, we affirm the circuit court’s judgment.

IV. Appellate Attorney Fees and Costs

Both parties requested an award of attorney fees and costs incurred on appeal. See 

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award

attorney’s fees and costs incurred on appeal is discretionary.” Koons v. Crane, 72 Va. App. 720, 

742 (2021) (quoting Friedman, 68 Va. App. at 545). “Since this litigation ‘addressed appropriate 

and substantial issues,’ and ‘neither party generated unnecessary delay or expense in pursuit of 

its interests,’” we deny both parties’ request for an award of attorney fees and costs incurred on 

appeal. Porter v. Porter, 69 Va. App. 167, 176 (2018) (quoting Estate of Hackler v. Hackler, 44 

Va. App. 51, 75 (2004)); see also Rule 5A:30(b).

CONCLUSION

For the foregoing reasons, we find that the circuit court did not err in awarding wife 

$3,505 per month in spousal support, finding that the parties’ date of separation was July 27, 
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2020, and ordering husband to maintain both life insurance policies. The circuit court’s 

judgment is affirmed.

Affirmed.