                                COURT OF APPEALS OF VIRGINIA


Present: Judge McClanahan, Senior Judges Coleman and Annunziata


GREGORY TODD LLOYD
                                                                  MEMORANDUM OPINION*
v.      Record No. 0768-05-4                                           PER CURIAM
                                                                    SEPTEMBER 20, 2005
STEPHANIE MARIE LLOYD


                  FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                                   Lon E. Farris, Judge

                  (Robert F. Zaniel; Allred, Bacon, Halfhill & Young, PC, on briefs),
                  for appellant.

                  (Polly B. Knight; Knight & Stough, LLP, on brief), for appellee.


        Gregory Todd Lloyd, husband, appeals a trial court order granting Stephanie Marie Lloyd,

wife, a divorce. On appeal, husband contends the trial court erred by: (1) not awarding him a

divorce on the ground of desertion; (2) finding husband acquiesced to the separation of the parties;

(3) finding wife had legal justification for leaving the marital home; and (4) awarding wife

attorney’s fees. Wife requests an award of attorney’s fees and costs incurred in this appeal. Upon

reviewing the record and the briefs of the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27. We also remand the

case to the trial court for an award of attorney’s fees and costs to wife.

                                              Background

        On appeal, “we view the evidence and all reasonable inferences in the light most

favorable to the prevailing party below . . . .” Lutes v. Alexander, 14 Va. App. 1075, 1077, 421

S.E.2d 857, 859 (1992).

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        The parties married in 1998 and separated for the last time on February 27, 2001. The

evidence indicates the parties had an unpredictable relationship and wife left the marital residence

several times during the marriage for periods ranging from several days to one or two months.

However, prior to the February 2001 separation, the parties had reconciled after each separation.

Wife testified the parties had a “very volatile relationship,” containing some physical threats and

“physical actions.” She also stated that prior to the separation, they were living separate lives.

        At the commissioner’s hearing, wife testified that she left the marital residence on February

21, 2001 with the intention not to return to the marriage. She also stated that prior to this separation,

she and husband talked about divorcing “all the time” and that husband had told her he wanted a

divorce. Wife testified that on February 27, 2001, she telephoned husband at work and told him she

was leaving the marital residence and taking the children. Wife testified husband came home,

kissed the children, and said, “You’ll be back. . . . You always come back.” Wife’s mother also

testified she was present when wife made the telephone call to husband. Wife stated that husband

did not ask her to stay on the date she left.

        Husband testified that wife was gone when he came home from work on February 27, 2001

and that he did not know she was leaving. He denied that wife contacted him on the day she left.

Husband also denied that he wanted a divorce at that time, asserting that wife’s actions constituted

desertion.

        The commissioner found that husband’s comment, “You’ll be back,” indicated husband did

not believe wife had formed the intent to desert the marriage. The commissioner further found that

wife did not desert the marriage and husband acquiesced to a separation based on the evidence

presented coupled with the fact that husband did not file a cross-bill of complaint until almost three

years after the parties separated.




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        Husband filed exceptions to the commissioner’s report in the trial court, asserting that wife

deserted the marriage and that he did not acquiesce to the parties’ separation. The trial court ruled

that husband’s exceptions were without merit, and it confirmed the commissioner’s report. The trial

court granted the parties a divorce based on their separation in excess of one year.

                                                Analysis

        Desertion cannot occur unless “one spouse breaks off marital cohabitation with the intent to

remain apart permanently, 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 evidence established that the parties lived separate and apart for more than one year.

Wife testified that the parties often discussed getting a divorce prior to the final separation, husband

wanted a divorce, when she left the marital residence for the final time, husband stated, “You’ll be

back,” and husband did not object to her leaving. The trial court accepted wife’s testimony, which

was competent and was not inherently incredible. “The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who has the opportunity to see and

hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). Therefore, the trial court’s decision that wife did not desert the marriage

and that husband acquiesced in the parties’ separation was supported by substantial, credible, and

competent evidence.

        The record does not show that appellant presented to the trial court the argument that wife

lacked legal justification for leaving the marital home. “The Court of Appeals will not consider an

argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. Accordingly, Rule 5A:18 bars

our consideration of this question on appeal.

                       Although Rule 5A:18 allows exceptions for good cause or
                to meet the ends of justice, appellant does not argue that we should
                                                  -3-
               invoke these exceptions. See e.g., Redman v. Commonwealth, 25
               Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
               oneself of the exception, a defendant must affirmatively show that a
               miscarriage of justice has occurred, not that a miscarriage might
               have occurred.” (emphasis added)). We will not consider, sua
               sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

       Appellant argues that if we reverse the trial court’s decision on the merits, then we should

also reverse the trial court’s award of attorney’s fees to wife. Because we affirm the trial court’s

decision, we need not address this issue.

       Wife requests attorney’s fees and costs incurred in this appeal. Husband’s appeal was

without merit. Therefore, we find that wife is entitled to recover reasonable attorney’s fees and

costs incurred by her in defending this appeal. We remand this matter to the trial court for a

determination of those costs and fees. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 479

S.E.2d 98 (1996).

       Accordingly, the judgment of the trial court is summarily affirmed and the matter is

remanded to the trial court for a determination of wife’s costs and fees incurred on appeal.

                                                                     Affirmed and remanded.




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