                     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.


     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


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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




                               - 8 -
            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.




                                 - 9 -
     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

                                - 14 -
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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