COURT OF APPEALS OF VIRGINIA
Present: Judges Humphrey s, Clements and McClanahan Argued at Richmond, Virginia

ANNETTE MORGAN, F/K/A ANNETTE M. WATKINS MEMORANDUM OPINION * BY v. Record No. 3066-06-2 JUDGE JEAN HARRISON CLEMENTS

NOVEMBER 13, 2007 DAVID B. WATKINS

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Lawrence D. Diehl for appellant. No brief or argument for appellee.
Annette Morgan (wife) appeals from a fina l decree of divorce entered by the trial court on November 15, 2006. On appeal, wife contends th e trial court er red in denying her request for spousal support from David B. Watkins (husband). Wife further requests an award of her attorney’s fees and costs incurred in pursuit of this appeal. For the reasons that follow, we affirm the trial court’s judgment and deny wife’s reques t for appellate attorney’s fees and costs. As the parties are fully co nversant with the record in this case and because this memorandum opinion carries no precedential value, th is opinion recites on ly those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. SPOUSAL SUPPORT Wife claims the trial court abused its discretion in denying he r request for spousal support. Specifically, wife contends the tria l court erred in finding she deserted and constructively deserted the marriag e and in failing to consider th e economic circumstances of the parties as required by Code § 20-107.1(E). We disagree. “‘Whether and how much spousal support will be awarded is a matter of discretion for the trial court.’” Barker v. Barker , 27 Va. App. 519, 527, 500 S.E.2d 240, 244 (1998). Thus, we will not reverse an award of spousal support “‘unle ss there has been a clear abuse of discretion.’” Northcutt v. Northcutt , 39 Va. App. 192, 196, 571 S.E.2d 912, 914 (2002) (quoting Moreno v.
Moreno , 24 Va. App. 190, 194-95, 480 S.E.2d 792, 794 (1997)). An abuse of discretion can be found if the trial court uses “an improper legal standard in exercising its discretionary function,” Thomas v. Commonwealth , 263 Va. 216, 233, 559 S.E.2d 652, 661 (2002), because a trial court “‘by definition abuses its discretion when it makes an error of law,’” Shooltz v. Shooltz , 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States , 518 U.S. 81, 100 (1996)). An abuse of discretion also exists if the trial court fails to consider the statutory factors required to be part of the decisi on-making process or makes factual findings that are plainly wrong or without evidence to support them. Congdon v. Congdon , 40 Va. App. 255, 262, 578 S.E.2d 833, 836-37 (2003) (citations omitted). In determining whether the trial court abused its discretion, we view the evidence, and all reasonable inferences flowing from the evidence, in a light most favorable to husband, the party who prevailed below. Id. at 258, 578 S.E.2d at 835. “That prin ciple requires us to ‘discard the evidence’ of [wife] which conflicts, either direc tly or inferentially, with the evidence presented by [husband] at trial.” Id. (quoting Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)).- 3 - A. Desertion and Constructive Desertion Code § 20-107.1(E) requires the trial court, in determini ng whether to award spousal support, to “consider the circumstances and fact ors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95.” Here, the trial cour t determined that an award of spousal support to wife was not warranted b ecause her false accusati ons against husband of committing adultery with ten women and one man, of sexually molesting a former roommate, and of sexually abusing the parties’ son, along with her directing husband to move out of the marital bedroom and her assault on husband in June 20 05 caused the dissolution of the marriage and amounted to desertion and constructive desertion by wife. Wife contends the evidence pres ented was insufficient to establish a fault ground of divorce that permitted the trial court to deny her reques t for spousal support unde r Code § 20-107.1(E). Specifically, wife argues that husband’s evid ence was insufficient to prove her conduct constituted desertion or constructive desertio n and that husband failed to present sufficient evidence to corroborate his allegatio ns of desertion and constructive desertion. We find wife’s arguments meritless. Code § 20-91(A)(6) authorizes a divorce from the bond of matrimony on the grounds of willful desertion and cruelty. Willful desertion occurs when “one spouse breaks off marital cohabitation with the intent to remain apart perm anently, without the consent and against the will of the other spouse.” Barnes v. Barnes , 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993). The fact the spouses remain under the same roof doe s not preclude a finding of willful desertion. See Jamison v. Jamison , 3 Va. App. 644, 648-49, 352 S.E.2d 719, 722 (1987). “Once separation and intent to desert have been established, the deserti on is presumed to continue until the contrary is shown.” Petachenko v. Petachenko , 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986).- 4 - Constructive desertion may be established by cruelty on the part of one spouse that justifies the other spouse’s decision to discontinue marital cohabitation. See Hoffecker v. Hoffecker , 200 Va. 119, 125-26, 104 S.E.2d 771, 775-76 (1958). In other words, a spouse is justified in leaving the marita l relationship if the other spou se’s conduct amounts to cruelty. See id. “[T]he misconduct [that] will form a good gr ound for [divorce] must be very serious and such as amounts to extreme cruelty, entirely su bversive of the family relations rendering the association intolerable.” Zinkhan v. Zinkhan , 2 Va. App. 200, 209, 342 S.E.2d 658, 663 (1986). For instance, “a single act of physical cruelty will constitute grounds for divorce . . . if it indicates an intention to do serious bodily harm . . . or if the precedent or attendant circumstances show that the acts are likely to be repeated.” Davis v. Davis , 8 Va. App. 12, 15, 377 S.E.2d 640, 642 (1989). Likewise, a spouse may be guilty of cruelty amounting to constructive desertion if he or she inflicts “mental anguish, repeated and unrelenting neglect and humiliation . . . upon an unoffending spouse.” Hoback v. Hoback , 208 Va. 432, 436, 158 S.E.2d 113, 116 (1967). The burden of proof in desertion cases is by a preponderance of the evidence. Bacon v.
Bacon , 3 Va. App. 484, 490, 351 S.E.2d 37, 40-41 (1986). Moreover, “before a spouse may obtain a divorce, he or she must prove the grounds therefor and no complain t for divorce shall be defaulted, taken for confessed, or granted upon th e pleadings or upon unco rroborated testimony.” Clark v. Clark , 11 Va. App. 286, 296, 398 S.E.2d 82, 88 (1990) (citing Code § 20-99). Where, as here, the evidence is “conflicting and . . . heard ore tenus by the trial court,” the trial court’s findings regarding whether a desertion has occurred have “the weight of a jury verdict, and will not be disturbed unless pl ainly wrong or without ev idence to support them.” Alls v. Alls , 216 Va. 13, 14, 216 S.E.2d 16, 16-17 (1975). Examined in the light most favorable to husband in accordance with the appropriate appellate standard of review, see Congdon , 40 Va. App. at 258, 578 S.E.2d at 835, the evidence- 5 - presented in this case established that, throughout the latter part of the marriage, wife falsely accused husband of having affairs with several women and one man. She also falsely accused husband of having sexually molest ed a former male roommate and, most significantly, of sexually abusing the parties’ mino r son. Wife’s disclosu re of such accusations to Elizabeth Sorenson, a mutual friend of the parties, led Sorenson to contact the police out of concern that husband might be molesting her son. Sorenson also confronted husband about the accusations. On January 29, 2005, the parties separated when wife directed husba nd to leave the marital bedroom and he moved into the guest room. Although husband did not in tend to get a divorce at the time, he felt the situation with wife was “becoming unbearable.” On June 24, 2005, wife punched husband ten to twelve times in front of the parties’ son. The police were called, and wife was arrested. Wife subsequently pleaded guilty to the charge, and husband obtained a protective order prohibiting wife from having contact with husband and the parties’ son for two years. Upon consideration of the tota lity of these circumstances, we conclude the evidence supports the findings that wife br oke off marital cohabitation with the intent to remain apart permanently, without the consent and against the will of husband, and that wife’s misconduct— namely, her repeated, humiliating false accusations against husband and her June 2005 assault on husband—was entirely subversive of the marriage and rendered the relationship intolerable. Accordingly, we hold that the evidence presented was sufficient to prove wife’s misconduct constituted desertion and constructive desertion. We further hold that husband presented suffici ent evidence to corrobor ate his allegations of desertion and constructive desertio n. As our Supreme Court has stated: The question of corroboration is one of fact, the decision of which in each case depends upon th e peculiar facts of that particular case. It is not n ecessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for di vorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground- 6 - for divorce. Any other rule w ould deprive the testimony of the complaining spouse of any practical e ffect. The general rule is that where a particular fact or circum stance is vital to complainant’s case, some evidence of the same, in addition to the complainant’s own testimony, is essential. The main object of the provision of the statute requiring co rroboration is to prevent collusion. Where it is apparent that there is no co llusion, the corroboration needs to be only slight.
Graves v. Graves , 193 Va. 659, 662-63, 70 S.E.2d 339, 340 (1952). Here, there is no appearance in the record of any collusion between the parties. Thus, the requisite corroboration need only be slight. We conclude that Sorenson’s testimony regarding the accusations against husband that wife made to her corroborated husband’s testimony about those and similar accusations. Likewise, Dr. Jeffr ey C. Fracher’s evaluation of husband’s sexual interests and the February 27, 2006 consent orde r granting husband primary physical custody of the parties’ son corroborated husband’s testimony that wife’s accusations were false. Furthermore, the warrant of arrest in the re cord corroborated husband’s testim ony regarding wife’s June 2005 assault, and the testim ony of wife and her witness corroborat ed husband’s testim ony that wife directed him to leave the marital bedroom in January 2005. Accordingly, the corroboration requirement was satisfied. Wife also argues the trial court erred in fi nding she deserted and constructively deserted the marriage because the court failed to properl y take into account the evidence that husband broke her finger in December 2001 and failed to take her to the hospital. In making this argument, however, wife relies on her own te stimony regarding the December 2001 incident, which conflicts with husband’s version of the incident. Thus, she disregards the settled standard of appellate review that require s us to view the evidence in th e light most favorable to husband, the party who prevailed below. See Congdon , 40 Va. App. at 258, 578 S.E.2d at 835. As previously mentioned, “[t]hat prin ciple requires us to ‘discard the evidence’ of [wife] which- 7 - conflicts, either directly or inferentially, with the evidence presented by [husband] at trial.” Id. (quoting Wactor , 38 Va. App. at 380, 564 S.E.2d at 162). Correctly viewed, the evidence established that wife’s finger was inadvertently broken as a result of a mutual shoving match between the parties when their fingers became intertwined. The evidence also established that husband was una ble to take wife to the hospital, following the shoving incident, because he had to stay home with the parties’ young children since no one else was available to watch them. Hence, the tria l judge, having resolved the conflicts in the evidence in husband’s favor, properly gave the in cident little or no weight in determining, pursuant to Code § 20-107.1(E), whet her either party’s misconduct rose to the level of a ground for divorce. See Dukelow v. Dukelow , 2 Va. App. 21, 26, 341 S.E.2d 208, 210 (1986) (holding that, in deciding whether to awar d spousal support, the court must determine whether either party is guilty of “marital fault amounting to a statutory ground for divorce ” (emphasis added)). Accordingly, we find wife’s argument meritless. Wife further contends the trial court erred in finding her actions amounted to desertion and constructive desertion because, in making th at finding, the court improperly relied on wife’s June 2005 assault on husband, which o ccurred nearly five months af ter the parties had separated. The court’s “consideration of a post-separation event, ” wife argues, “is error as a matter of law.” We disagree. The trial judge found that the parties sepa rated on January 29, 2005, and, acting within his discretion, awarded a divorce based on the partie s’ one-year separation from that date. As previously mentioned, however, Code § 20-107.1(E) requires the trial court, in determining whether to award spousal support, to ascertain whether either pa rty is guilty of a fault-based ground for divorce. Thus, even where a court gran ts a divorce based on a one-year separation, it must still consider any proven fault-base d ground in relation to spousal support. See generally- 8 - Zinkhan , 2 Va. App. at 210, 342 S.E.2d at 663-64. The question here, then, is whether a party’s misconduct in the form of cruelty that occurs after the date of separation while the parties are living separate and apart may constitute a ground for divorce.
In Davis , the wife was granted a divorce on the gr ound that the parties lived separate and apart for one year and was awarded spousal support. 8 Va. App. at 14, 377 S.E.2d at 641. It was further determined that the husband’s post-separation, criminal assault on the wife constituted a fault-based ground of divorce. Id. at 15, 377 S.E.2d at 642. On appeal, the husband argued that “he could not be found guilty of cruelty for misc onduct occurring after the date of separation of the parties.” Id. We disagreed, noting that “[m]ost auth orities agree that misconduct in the form of cruelty occurring while the parties are living separate and apart may constitute grounds of divorce.” Id. Our decision in Davis makes it clear that the mere fact that a party’s misconduct occurs after the date of separation does not mean th e misconduct may not constitute a fault-based ground of divorce. Accordingly, we reject wife’s claim that, in determining whether to award spousal support to wife, the trial judge, as a matte r of law, could not consid er her criminal assault on husband merely because it occurred after the parties had separated.
In Barnes , the case on which wife relies, the tria l court awarded spousal support to the wife even though she committed adultery following the parties’ separation. 16 Va. App. at 100, 428 S.E.2d at 297. Addressing the is sue of manifest in justice, the trial court specifically determined, as a matter of fact, that the adultery occurred “after the marriage had been irretrievably lost.” Id. at 103, 428 S.E.2d at 298. Finding the evidence supported th e trial court’s finding and specifically “showed th at the post-separation adultery had little, if anything, to do with causing the deterioration of the marriage or in preventin g a possible rec onciliation,” we upheld the trial court’s decision. Id. Here, however, the trial judge made no such finding with- 9 - respect to wife’s post-separation assault on husband. To the contrary, in expressly relying on the assault, the judge implicitly found that the marriage was not irretrievably lost at the time. We cannot say that finding is wrong as a matte r of law. Hence, wife’s reliance on Barnes is misplaced with respect to the issue now before us. 1 For these reasons, we cannot say the trial judge erred in finding wife’s misconduct amounted to desertion and construc tive desertion of the marriage. B. Financial Circumstances of the Parties Wife further contends the trial court erre d when, in adjudicating the issue of spousal support, it failed to consider the economic circumstances of the parties and the other factors enumerated in Code § 20-107.1(E). Such consideration, wife argues, was required under the statute. Because wife expressly approved the trial judge’s us e of the analytical appr oach she now challenges on appeal, we need not address the merits of this claim of error. The record demonstrates that the subject of what procedure the trial judge should follow in adjudicating the issue of spousal support under Code § 20-107.1(E) came up several times during closing arguments at trial. After addressing the i ssue of fault, wife’s tria l counsel stated, “And now if she’s not barred from receiving sp ousal support, then the Court’s obligation is to consider . . . the standard of living acquir ed by the parties during the marriage.” Husband’s counsel agreed that fault was the threshold issue before the judge: The first issue, and one we r eally want to spend some time on, Your Honor, is whet her or not spousal supp ort is due at all.

1 Wife also argues on brief that the trial co urt erred in finding sh e caused the dissolution of the marriage because Virginia law does not permit a divorce to be entered based upon the gradual breakdown of the marital relationship. See Sprott v. Sprott , 233 Va. 238, 242, 355 S.E.2d 881, 883 (1987). However, wife did not make this argument at trial or in her motion to reconsider. Pursuant to Rule 5A:18, we “will no t consider an argument on appeal [that] was not presented to the trial court.” Ohree v. Commonwealth , 25 Va. App. 299, 30 8, 494 S.E.2d 484, 488 (1998). “Making one specific argum ent on an issue does not preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth , 41 Va. App. 752, 76 0, 589 S.E.2d 444, 448 (2003) (en banc). Hence, we will not consider this argument on appeal.- 10 - And that is because there is fault involved here, and there is fault such that the phr ase in 20-107.1, whether support is to be awarded, the Court has to consid er the fault of the parties. Subsequently asked by the judge for further clarification on the subject, husband’s counsel explained: The case law says th at whether [support is to be awarded] is the first hurdle. And [wife’s counse l] even went thro ugh that himself and said, “Well, is th ere a bar to support?” They don’t call it a complete bar anymore. But whether support is to be awarded, the first analysis, the threshold inquiry is, is there a ground for di vorce, has the pers on committed fault. And if so, the Court is not oblig ated [to award support] at all. The judge and wife’s counse l completed closing argument with the following colloquy: [COUNSEL]: So I’d ask you to fi nd that there is no bar to support. And then, having done th at, the law is clear that you’re supposed to look at the factor s in Section E independently of considering the circumstances lead ing to the dissolution of the marriage. . . . THE COURT: But you do agree that under E, before you get to the factors, in determining wh ether to make an award you can consider these other facts -- [COUNSEL]: You may -- THE COURT: -- that could constitute cruelty -- [COUNSEL]: Yes, sir. THE COURT: -- or desertion, even though it isn’t pled? [COUNSEL]: That’s true. THE COURT: Okay. [COUNSEL]: You may consider those under whether. You may not consider them under how much. THE COURT: Okay; I want to stop. It is clear from these discu ssions that wife manifestly agre ed with husband’s position that the adjudication of the issue of sp ousal support was a two-step process: First, the trial judge had to- 11 - “consider the circumstances and factors which contributed to the dissolution of the marriage,” specifically any fault-based grou nds for divorce, in order to determine whether support was warranted. Code § 20-107.1(E). Second, if, and only if, the judg e determined that support was warranted, the judge then had to consider the economic circumst ances of the partie s and all of the other factors enumerated in Code § 20-107.1(E) in order to dete rmine “the nature, amount and duration of [the] award.” Id. At no point during trial did wife argue that the seco nd step was still required even if the judge found in step one that spousal support was unwarranted. The record shows that the tria l judge, in adjudica ting wife’s request fo r spousal support, performed step one of the process. Finding th at spousal support was unwarranted because wife deserted and constructively deserted the marriage, the judge did not perform the second step. In other words, althou gh the result was not the one she sought, the tr ial judge followed the process specifically agreed to by wife. It is well settled in Virginia that “[a] party may not appr obate and reprobate by taking successive positions in the course of litigation that are either in consistent with each other or mutually contradictory. Nor may a party invite error an d then attempt to ta ke advantage of the situation created by his own wrong.” Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006); see also Buchanan v. Commonwealth , 238 Va. 389, 400-01, 384 S.E.2d 757, 764 (1989) (holding that a party ma y not be heard to complain on appeal where the record shows the lower court took the very action requested or agr eed to by that party); Clark v. Commonwealth , 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979) (“The defendant, having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position.”); McClain v. Commonwealth , 189 Va. 847, 856, 55 S.E.2d 49, 53 (1949) (“The defendant, having taken his chance on a favorable report, ought not to be heard to object later if- 12 - he considered it unfavorable.”). Accordingly, wife will not now be heard to complain of actions by the trial judge that she hersel f invited the judge to take. We hold, therefore, that the trial judge did not abuse his discretion in finding that an award of spousal support to wife was not warra nted and in denying her request for spousal support. See Collins v. Commonwealth , 269 Va. 141, 146, 607 S.E.2d 719, 721 (2005) (noting that “the judgment of the trial court is presumed to be correct unless and until reversed”).
II. ATTORNEY’S FEES Wife seeks an award of her a ppellate attorney’s fees and co sts. However, she offers no legitimate reason to require hus band, who made no appearance on appeal, to pay any of her appellate expenses. Because we conceive no su ch reason, we deny wife’s request for appellate attorney’s fees and costs. See O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
III. CONCLUSION For these reasons, we affirm the trial court’ s judgment denying wife’s request for spousal support and we deny wife’s request for a ppellate attorney’s fees and costs. Affirmed.