COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

CECIL JENNINGS CHILDERS 

 MEMORANDUM OPINION* BY 

v. Record No. 2659-98-3 JUDGE DONALD W. LEMONS 

 JUNE 29, 1999 

PATRICIA PEVERALL CHILDERS 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 Thomas W. Roe, Jr. (Spigle & Roe, P.C., on 

brief), for appellant. 

 William L. Heartwell, III (Heartwell & Wills, 

on brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Cecil Jennings Childers appeals the Circuit Court of 

Botetourt County’s order refusing to enforce a separation 

agreement signed by the parties on the grounds that the 

agreement had not been properly produced, that two conditions 

subsequent to the agreement had not been met, and that the 

parties had abandoned their agreement. Childers also argues 

that the court erred by granting his wife a divorce on the 

grounds of post-separation adultery, in finding that the 

husband’s extramarital affairs had a negative effect upon the 

wife’s health, by dividing the marital estate unequally, and by 

awarding an excessive amount of spousal support. We hold that 
although the trial court erred in finding that the separation 

agreement had not been properly produced, the agreement was 

unenforceable. We also affirm the divorce decree entered on the 

grounds of the husband’s post-separation adultery, its division 

of marital property and its award of spousal support. 

I. BACKGROUND 

 Cecil Jennings Childers (“husband”), appellant, and 

Patricia Peverall Childers (“wife”), appellee, were married in 

1983. During the marriage, the wife discovered three 

extramarital affairs of the husband. The wife forgave him for 

all three affairs, until she discovered that he was continuing 

his third affair. In December 1996, the parties agreed to 

separate, but to remain in the marital home in separate 

bedrooms. On December 13, 1996, the parties drafted and 

executed an agreement (“Agreement”) that purported to 

memorialize their living arrangements and divide certain marital 

property. In April 1997, the husband moved out of the marital 

home and began openly cohabiting with Sharon L. Sanders, his 

paramour from the third affair. 

 On June 30, 1997, the wife filed a Bill of Complaint in the 

Circuit Court of Botetourt County seeking a divorce. On 

August 1, 1997, the husband filed an Answer and Cross-Bill. On 

August 28, 1997, the court ordered the husband to pay 

pendente lite spousal support in the amount of $819.50 per 

month, less a credit of $219.50 as long as he made payments on 

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the wife’s vehicle. On March 28, 1998, the court found the 

husband in contempt for his failure to pay spousal support and 

established arrearages at $900. 

 A formal hearing began on September 17, 1998 in the Circuit 

Court of Botetourt County. The husband orally moved that the 

Agreement be recognized by the court and incorporated into the 

divorce decree. The court took the husband’s motion under 

advisement, and the case proceeded as if no agreement existed. 

 By its two letter opinions, each dated September 25, 1998, 

the court refused to enforce the Agreement, holding that it had 

not been properly “produced,” that two conditions subsequent had 

not been met, and that the parties had abandoned their contract. 

The court granted the wife a decree of divorce based upon the 

husband’s post-separation adultery, made an equitable 

distribution award, and awarded spousal support to the wife. 

The court’s findings were incorporated into the Final Decree of 

Divorce, entered on October 20, 1998. 

II. SEPARATION AGREEMENT 

 The parties executed the Agreement on December 13, 1996. 

Following its execution, the Agreement remained in the exclusive 

control of the wife. The Agreement stated that the parties 

“agree to be separated,” living within the same physical 

residence in separate bedrooms. The Agreement also provided 

that upon the sale of the marital residence, the wife would 

receive the first $30,000 of the proceeds. The husband agreed 

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to purchase a vehicle for the wife, and the wife agreed to repay 

a marital debt owed to Ed Gray. The remaining joint debts were 

to be paid out of the surplus. In addition, both parties agreed 

to show “respect” to the other, and not to bring third parties 

into the home if doing so would “embarrass or upset” the other 

party. The Agreement provided: 

This agreement will be binding until a legal 

document is drawn up by an attorney. This 

is to protect both parties, both financially 

and mentally. 

 

The Agreement was typed by the wife and signed by both parties. 

 On appeal, the husband argues that the validity of the 

Agreement is not in question on the basis of fraud, duress or 

that its terms were unconscionable. 

A. “Production” of the Agreement

 The court found that the husband did not properly “produce” 

the Agreement, stating, 

The signed document was not produced before 

the Court until 17 September 1998. This 

cause was commenced by filing a bill of 

complaint on 30 June 1997 and several 

hearings have been conducted pendente lite. 

The document is not pled in the bill. No 

motions were ever made to produce the 

agreement or to have the agreement adopted 

pending litigation. The existence of the 

document was not revealed to the court until 

14.5 months after the litigation commenced. 

 Because he made an oral motion to have the Agreement 

adopted at the beginning of the trial on September 17, 1998, the 

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husband argues that the court erred in stating that there were 

no motions made to adopt the agreement. 

 The husband cites Code § 20-109(C)in support of his 

contention that he presented the Agreement in a timely manner. 

Code § 20-109(C) states: 

In suits for divorce . . . . if a 

stipulation or contract signed by the party 

to whom such relief might otherwise be 

awarded is filed before entry of a final 

decree, no decree or order directing payment 

of support and maintenance for the spouse, 

suit money, or counsel fee or establishing 

or imposing any other condition, monetary or 

nonmonetary, shall be entered except in 

accordance with that stipulation or 

contract. If such a stipulation or contract 

is filed after entry of a final decree and 

if any party so moves, the court shall 

modify its decree to conform to such 

stipulation or contract. 

 The statute requires the court to enforce any written 

agreement filed with the court prior to its entry of the decree. 

Here, the husband made an oral motion that the Agreement be 

enforced on September 17, 1998, and attached the Agreement as an 

exhibit. The entry of the final decree occurred on October 20, 

1998. 

 Nothing in the statute requires the filing of the Agreement 

in a specific motion; rather, the statute states only that the 

Agreement must be “filed” with the court prior to the entry of 

the final decree. Based upon Code § 20-109(C), we hold that the 

court erred in finding that the Agreement had not been properly 

“produced.” 

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B. Abandonment

 The trial court stated as one of its reasons for refusing 

to enforce the Agreement: 

The Court finds that the re-instituted 

negotiation by Husband regarding the 

disposition of the marital property through 

his counsel constitutes an abandonment of 

the agreement struck by Husband and Wife. 

The signed document also was obviously 

intended as an interim measure to be 

formalized by a “legal document” which was 

never drafted in conformity to the temporary 

understanding between the parties. The 

document also clearly contemplates the sale 

of the marital home and no attempt at 

marketing the house or forcing the sale 

under the signing was made until well into 

1998 after Husband had left the house and 

moved in with his friend, and that attempt 

at sale was, at best, a half-hearted attempt 

unilaterally made by Wife. Husband could 

have- but did not - move to force the sale 

of the house. 

 The husband argues that the court’s reliance upon his 

failure to draft a “legal document” in accordance with the 

Agreement “defies the reality of the situation.” Given the 

wife’s stated opposition to the enforcement of the Agreement, 

the husband argues that it would have been impossible for him to 

obtain the wife’s signature on the formalization of an agreement 

that she sought to repudiate. 

 The husband also argues that any attempt he made to “force 

the sale of the marital home” would have been fruitless for him 

because the wife had taken the position that the Agreement was 

not binding. Rather, the husband argues “[u]ntil such time as 

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the court rejected the wife’s position that the [A]greement was 

invalid, [he] had no reason to make repeated requests that the 

wife comply with it.” 

 The husband also argues that the court erroneously relied 

on his attempts to institute renegotiations with the wife as 

evidence that he had abandoned the Agreement. The husband 

contends that the only “major point of difference” was the 

variance between the percentage of the home that the wife would 

receive from the proceeds of the sale. The husband argues that 

this variation cannot be considered an abandonment of his 

earlier position. 

 In Hurt v. Hurt, 16 Va. App. 793, 433 S.E.2d 493 (1993), we 

affirmed the trial court’s refusal to enforce the parties’ 

prenuptial agreement on the basis that it had been abandoned by 

the husband. In Hurt, the husband and wife dated for a period 

of time, lived together in the wife’s home, and became engaged. 

The parties set a wedding date of June 4, 1983. See id. at 795, 

433 S.E.2d at 495. On June 2, 1983, the husband gave the wife a 

prenuptial agreement, with both of their attorneys present, 

which the wife signed. The husband cancelled the wedding that 

evening. See id. at 795, 433 S.E.2d at 495. After a period of 

separation, the parties reconciled, and were married on May 20, 

1984. The parties experienced marital discord, and the husband 

filed for divorce. He argued that the prenuptial agreement 

signed on June 2, 1983 controlled the parties’ property 

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distribution. See id. at 796, 433 S.E.2d at 495-96. At the 

pretrial hearing, the court ruled “the prenuptial agreement was 

a valid agreement when signed; however, [the] husband 

anticipatorily breached and repudiated the agreement.” Id. at 

796, 433 S.E.2d at 495-96. The court considered his act of 

calling off the wedding two days prior to the date “a clear act 

of repudiation.” Id. at 798, 433 S.E.2d at 497. “[F]or a 

repudiation of a contract to constitute a breach, the 

repudiation must be clear, absolute, unequivocal, and must cover 

the entire performance of the contract.” Id. at 798, 433 S.E.2d 

at 496 (citation omitted). 

 We agreed with the trial court, stating: 

[W]e view the evidence and all reasonable 

inferences in the light most favorable to 

[wife] the prevailing party below. Where, 

as here, the courts hears the evidence 

ore tenus, its finding is entitled to great 

weight and will not be disturbed on appeal 

unless plainly wrong or without evidence to 

support it. The contemplated marriage 

ceremony and consummation of the marriage 

were crucial components of the parties’ 

agreement. The evidence proved that [the] 

husband affirmatively refused to perform his 

obligation under the agreement. From this 

evidence, the fact-finder could properly 

find that husband’s refusal was an 

“unequivocal or positive expression of 

abandonment” of the agreement or that his 

conduct “evince[d] an intent wholly 

inconsistent with the intention to perform” 

his obligations under the prenuptial 

agreement. . . . Accordingly, we affirm the 

trial court’s judgment that the prenuptial 

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agreement had been repudiated and, 

therefore, was unenforceable. 

Id. at 798, 433 S.E.2d at 497 (citations omitted). 

 Here, the actions of the husband constituted an abandonment 

of the terms of the Agreement. First, the husband moved out of 

the house before it was sold, in derogation of the terms of the 

Agreement, in order to live with his paramour, Sanders. 

 Second, the husband requested in his Cross-Bill that the 

court divide the property pursuant to Code § 20-107.3. A party 

“will not be permitted to ‘approbate and reprobate’ at the same 

time.” Noland v. Fowler, 179 Va. 19, 25, 18 S.E.2d 251, 254 

(1941). On August 1, 1997, the husband filed a Cross-Bill in 

which he requested that the court divide the property pursuant 

to the equitable distribution statute. The Cross-Bill neither 

mentioned the existence of the Agreement, nor requested that the 

marital property be distributed according to its terms. 

Requesting equitable distribution pursuant to Code § 20-107.3 is 

inconsistent with claiming that a property settlement agreement 

precludes equitable distribution. 

 Third, the husband attempted to negotiate a settlement with 

the wife that differed from the terms of the Agreement. While 

taking an alternate position in negotiations is not, by itself, 

enough to prove repudiation of the Agreement, it is evidence 

that may be considered by the court. 

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 Fourth, the husband did not assert the enforceability of 

the Agreement until the day of the hearing, fourteen and 

one-half months after the litigation began. 

 Fifth, the Agreement stated that the parties were not to 

“bring anyone into this house that would embarrass or upset the 

other party,” and that the parties must show “respect” to one 

another. The husband also ignored this condition. The husband 

moved out of the marital home and began residing with Sanders, 

his paramour during the marriage, in spite of the “embarrassment 

and upset” caused to the wife. 

 We cannot say that the trial court was plainly wrong or 

without evidence to support its ruling that the parties had 

abandoned the Agreement, and we need not address the husband’s 

additional contentions with regard to the enforceability of the 

Agreement. 

III. DIVORCE GROUNDS 

 On appeal, husband argues that the trial court erred by 

granting the wife a divorce on grounds of post-separation 

adultery. The record reveals that husband’s objection to the 

grounds for divorce was stated in a filing entitled “Objections 

To The Court’s Rulings From The September 17, 1998 Hearing” as 

follows: 

The Court erred when it granted the 

Complainant a divorce based on fault. The 

evidence was that the Defendant had to leave 

the Complainant due to her spending too much 

money for financial reasons. 

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Rule 5A:18 requires that objections to a trial court’s action or 

ruling be made with specificity in order to preserve an issue 

for appeal. See Campbell v. Commonwealth, 12 Va. App. 476, 480, 

405 S.E.2d 1, 2 (1991) (en banc). A trial court must be alerted 

to the precise “issue” to which a party objects. See Neal v. 

Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 525 

(1992). Because no objection was made by husband that the 

evidence was not sufficient to support the trial court’s finding 

of post-separation adultery, we will not consider the issue on 

appeal. 

IV. EQUITABLE DISTRIBUTION 

 With respect to equitable distribution, the court stated, 

 The marital estate subject to 

distribution has a value of $132,884.00. Of 

that sum, 55 percent is awarded to Wife and 

45 percent is awarded to Husband. 

 Husband is confirmed in ownership of 

the Stoney Creek property and the Ford 

pickup, if he so chooses. Wife is confirmed 

in the ownership of the Mercury automobile, 

if she so chooses. 

* * * * * * * 

 Wife is drawing disability benefits. 

Husband may draw a small pension ($378.00 

per month) after October 2001. Given Wife’s 

disability, the length of marriage, the 

award above, and other factors, the Court 

finds neither party is entitled to share in 

the other’s deferred or disability benefits. 

 The husband argues that the court erred in awarding 

fifty-five per cent of the marital estate to the wife. The 

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husband states that the “trial court’s analysis of most of the 

statutory factors shows no reason to prefer one party over the 

other” and “the trial court committed reversible error by 

accepting the wife’s testimony that the husband’s infidelity had 

a negative effect on her health.” 

 “Virginia has no presumption in favor of an equal division 

of the marital property.” O’Loughlin v. O’Loughlin, 20 Va. App. 

522, 525, 458 S.E.2d 323, 324 (1995). “The amount and form of 

any equitable distribution award are matters committed to the 

sound discretion of the trial court, [but] any division or award 

must be based on the parties’ equities, rights and interests in 

the property.” Barker v. Barker, 27 Va. App. 519, 535, 500 

S.E.2d 240, 247-48 (1998) (citations omitted). “On appeal, the 

trial court’s award of equitable distribution will not be 

reversed [u]nless it appears from the record that the [court] 

has abused [its] discretion, that [it] has not considered or has 

misapplied one of the statutory mandates, or that the evidence 

fails to support the findings of fact underlying [its] 

resolution of the conflict in the equities.” Luczkovich v. 

Luczkovich, 26 Va. App. 702, 708, 496 S.E.2d 157, 160 (1998) 

(citations omitted). 

 The wife testified that the husband gave her herpes and she 

suffered from depression, fibromylagia, and chronic fatigue 

syndrome. At trial, the husband argued that the wife should not 

be permitted to testify about medical diagnoses. On appeal, the 

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husband argues further that the court gave disproportionate 

weight to the wife’s testimony that his actions had caused a 

negative impact on her health. With respect to the wife’s 

testimony about her illnesses: 

The rule permitting lay or nonexpert 

witnesses to testify to the apparent 

physical condition of a person which is open 

to ordinary observation by persons of common 

experience does not extend to permit such 

witnesses to testify as to the existence, 

nature, or character of latent conditions or 

to the existence of a particular disease 

which is discoverable, or the nature and 

character of which is determinable, only 

through the peculiar experience, knowledge, 

and training of a physician. Generally, 

opinions of such (lay) witnesses are limited 

to opinions as to physical condition. 

Pepsi-Cola Bottling Co. v. McCullers, 189 Va. 89, 98, 52 S.E.2d 

257, 260 (1949) (citations omitted). The trial court erred in 

admitting the wife’s testimony regarding the diagnoses of her 

illnesses. 

 However, the evidence was uncontested that the wife was on 

full disability from her employer at the time of the hearing. 

The wife testified that her disability resulted from the 

husband’s actions and from the stress of his infidelities and 

their unhappy marriage. The court found that the wife was 

permanently disabled as a result of her suffering. We hold that 

the court did not err in weighing the effects that the husband’s 

actions had on the wife when making its equitable distribution 

determination, and we affirm its equitable distribution order. 

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V. SPOUSAL SUPPORT 

 The court ordered the husband to pay $550 per month to the 

wife as spousal support, effective October 1, 1998. The husband 

argues that the court could not award spousal support because 

any award of spousal support is in conflict with the 1996 

Agreement. In the alternative, the husband argues that if the 

Agreement was not enforceable, the court erred in awarding an 

excessive amount of spousal support. 

 Having previously determined that the Agreement was not 

enforceable, we consider only whether the amount of the award 

was excessive. “Whether to award spousal support and the 

particular amount lies within the sound discretion of the trial 

judge.” Jennings v. Jennings, 12 Va. App. 1187, 1196, 409 

S.E.2d 8, 14 (1991). In reviewing an award of spousal support, 

“[w]e view the evidence in the light most favorable to wife, the 

prevailing party below.” Barker v. Barker, 27 Va. App. 519, 

528, 500 S.E.2d 240, 244 (1998) (citations omitted). “[T]he 

judgment of the trial court shall not be set aside unless it 

appears from the evidence that such judgment is plainly wrong or 

without evidence to support it.” Code § 8.01-680. 

 We hold that the court did not err in ordering the husband 

to pay $550 per month in spousal support. At the time of the 

hearing, the wife was receiving a disability award. The wife 

introduced evidence that although her disability was permanent, 

the disability award she was receiving was temporary. Evidence 

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also revealed that the wife was making two mortgage payments, 

while the husband was living in a rented home with Sanders. 

Although the result of the court’s award was to provide the wife 

with an income greater than the husband, the spousal support 

award was not “plainly wrong” or “without evidence to support 

it,” and we affirm the trial court’s decision. 

VI. CONCLUSION 

 We hold that the court did not err in refusing to enforce 

the Agreement and in granting the wife a divorce on the grounds 

of the husband’s post-separation adultery. We affirm the 

court’s equitable distribution order and its award of spousal 

support. 

 Affirmed.

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