                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges Huff, Russell and Malveaux
              Argued at Lexington, Virginia
UNPUBLISHED




              DANIEL JASON RAKES
                                                                              MEMORANDUM OPINION* BY
              v.       Record No. 1038-18-3                                      JUDGE GLEN A. HUFF
                                                                                   MARCH 12, 2019
              TERESA RENEE GRIGGS RAKES


                                     FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                                                 Charles N. Dorsey, Judge

                                 Melvin L. Hill for appellant.

                                 Monica Taylor Monday (Gentry Locke, on brief), for appellee.


                       Daniel Jason Rakes (“husband”) appeals a decree of divorce from Teresa Renee Griggs

              Rakes (“wife”) granted by the Circuit Court of the City of Salem (“trial court”). On appeal,

              husband’s single assignment of error contends that the trial court erred in granting the divorce on

              grounds of constructive desertion. He asserts three arguments in support of the assignment of

              error.

                       This Court affirms the trial court’s grant of a fault-based divorce. Husband failed to

              preserve two arguments under Rule 5A:18. Husband’s remaining argument is based on a

              mischaracterization of the trial court’s ruling. This Court is unable to address an assignment of

              error that is not based on the actions of the trial court.

                                                         I. BACKGROUND

                       “Under familiar principles we view [the] evidence and all reasonable inferences in the

              light most favorable to the prevailing party below. Where, as here, the court hears the evidence


                       *
                           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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.” Pommerenke v. Pommerenke, 7 Va. App. 241, 244

(1988) (quoting Martin v. Pittsylvania County Dep’t of Social Servs., 3 Va. App. 15, 20 (1986)).

So viewed, the evidence is as follows.

       Husband and wife were married for twenty-four years and raised two children. In

November 2015, wife found three pictures of husband cross-dressing. Two photographs pictured

husband wearing women’s clothing outside in public, and another photograph showed husband

in a vehicle wearing fishnet hose and women’s underwear with another man’s hand on his inner

thigh. Husband was depicted wearing different outfits in the various photographs.

       Wife testified that after viewing the photos she felt “shocked, hurt, betrayed, angry” and

as though she had suffered an “undescribable death” with everything she knew “gone in an

instant.” When asked about his conduct, husband said he dressed like a woman because wife

would not dress that way. Husband also refused to identify the other man in the photograph.

       After wife discovered the photos, the parties slept in separate bedrooms because wife was

concerned that husband may have contracted sexually transmitted diseases through his

extra-marital engagements. Wife and husband continued to live in the same residence, albeit

separate and apart, while both parties engaged in counseling. Nearly one year later, however,

husband moved out of the marital home to live with his parents. The parties formally separated

on November 30, 2016. Wife filed for divorce on January 20, 2017 on the grounds of cruelty

and desertion.

       At trial, on April 16, 2018, husband contended that the court should grant the divorce

based on the parties’ separation for more than a year and that the trial court should not grant a

constructive desertion fault-based divorce because there was only one instance of cross-dressing.

Nevertheless, the trial court granted a fault-based divorce on grounds of constructive desertion.

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Husband disputed the amounts awarded for spousal support and attorney’s fees. The trial court

awarded wife $2,250 in monthly spousal support and directed husband to pay wife’s attorney’s

fees in the amount of $10,000.

         This appeal followed.

                                                II. ANALYSIS

         On appeal, husband contends that the trial court erred in granting a divorce on grounds of

constructive desertion. Although wife claims husband’s assignment of error fails to satisfy the

specificity requirements, this Court finds that husband’s assignment of error is sufficient under

Rule 5A:20(c). Wife correctly asserts, however, that two of husband’s arguments were not

preserved at trial as required pursuant to Rule 5A:18. Moreover, his third argument does not

address the actual ruling of the trial court. Therefore, this Court affirms the decision of the trial

court.

                          A. Specificity of Husband’s Assignment of Error

         Wife alleges that husband’s assignment of error violates Rule 5A:20(c) because it does

“not identify any specific error in the trial court’s constructive desertion ruling.” Husband’s

assignment of error states: “The trial court erred in finding that a divorce should have been

granted on the grounds of constructive desertion.” Wife contends that husband’s assignment of

error fails to “lay its finger on the error.”

         The requirements of Rule 5A:20 are not jurisdictional, and therefore this Court must

“consider whether any failure to strictly adhere to the requirements of Rule 5A:20(e) is

insignificant, thus allowing the court to address the merits of a question presented.” Jay v.

Commonwealth, 275 Va. 510, 520 (2008). Although fairly general, husband’s assignment of

error “‘adequately puts the court and opposing counsel on notice’ regarding what alleged errors

the appellant [seeks] to have reversed, and thus prevent[s] both the court and opposing counsel

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from having to search through the entire record.” Commonwealth v. Herring, 288 Va. 59, 68

(2014) (quoting Findlay v. Commonwealth, 287 Va. 111, 116 (2014)). Husband does not state

merely that the divorce decree is in error; he states that the trial court erred by granting the

divorce “on the grounds of constructive desertion.” Husband’s assignment of error is not so

flawed that it prevents this Court from considering his arguments. Therefore, this Court rejects

wife’s claim that husband’s assignment of error is too vague.

                B. Husband failed to present two of his arguments to the trial court

        Although husband’s assignment of error is sufficient, he raises two arguments on appeal

that he did not present to the trial court. Under Rule 5A:18, a specific argument must be made to

the trial court at a time to allow the trial court to correct any error, or else the error will not be

considered on appeal. Mounce v. Commonwealth, 4 Va. App. 433, 435 (1987). Rule 5A:18

requires that “an objection [be] stated with reasonable certainty at the time of the ruling.”

Further, “[m]aking one specific argument on an issue does not preserve a separate legal point on

the same issue for review.” See Clark v. Commonwealth, 30 Va. App. 406, 411-12 (1999)

(preserving one argument on sufficiency of the evidence does not allow argument on appeal

regarding other sufficiency questions). Indeed, “the primary function of Rule 5A:18 is to alert

the trial judge to possible error so the judge may consider the issue intelligently and take any

corrective actions necessary.” Neal v. Commonwealth, 15 Va. App. 416, 422 (1992) (internal

citation omitted). Therefore, this Court does not consider issues that were not raised in the trial

court. West Alexandria Prop., Inc. v. First Virginia Mortgage and Real Estate Inv. Trust, 221

Va. 134, 138 (1980) (“On appeal, though taking the same general position as in the trial court, an

appellant may not rely on reasons which could have been but were not raised for the benefit of

the lower court.”); Floyd v. Commonwealth, 219 Va. 575, 584 (1978) (holding that appellate




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courts will not consider an argument that differs from the specific argument presented to the trial

court, even if it relates to the same general issue).

        Here, husband raises three arguments on appeal. Husband argues that there was no

evidence of cruelty, that husband’s misconduct does not rise to a level that makes the marital

relationship intolerable or unendurable, and that one instance of misconduct cannot form the

basis of constructive desertion. At the trial court, however, husband relied solely on the

argument that one instance of misconduct is not enough to form the basis of a constructive

desertion claim. Because his other two arguments were not mentioned at trial and are presented

for the first time on appeal, they are barred by Rule 5A:18, and this Court will not consider them.

           C. Husband’s remaining argument does not address the trial court’s findings

        Husband’s only remaining argument is that one instance of cruelty cannot sustain a

constructive desertion claim. This Court will not consider an argument that does not address the

actual ruling of the trial court. Teleguz v. Commonwealth, 273 Va. 458, 471 (2007)

(“Accordingly, these assignments of error do not address a ruling made by the trial court and we

do not consider them.”). Although husband argues one instance of cross-dressing cannot sustain

a constructive desertion claim, neither the evidence at trial nor the trial court’s findings suggest

that the trial court found constructive desertion based on a single incident.

        Considering the evidence in the light most favorable to wife, as this Court must, the

evidence supports a conclusion that husband’s cross-dressing was an ongoing behavior rather

than a one-time incident and the trial court viewed it as an ongoing behavior. First, the

photographs of husband cross-dressing show him wearing two different sets of women’s

clothing, suggesting at least two instances of cross-dressing. Second, the trial court found

husband had stopped cross-dressing by the time of trial and had promised, during therapy, to stop

cross-dressing. The fact husband “stopped” implies the trial court considered husband’s

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cross-dressing an ongoing behavior, not a single incident. Third, the trial court referred to

husband’s cross-dressing as a “lifestyle” when asking whether husband intended to continue

cross-dressing, and husband accepted that characterization when he testified he had “given up

that lifestyle.” Again, discussing cross-dressing as a “lifestyle” suggests the trial court

considered it an ongoing, repeated behavior, not a single incident.

           Thus, nothing in the record suggests the trial court granted a constructive desertion,

fault-based divorce, on a single incident of cross-dressing. Rather, the trial court granted the

divorce based on husband’s “lifestyle” of cross-dressing. Because husband’s sole remaining

argument does not address the actual finding of the trial court, this Court will not consider it

further.

                                           D. Attorney’s Fees

           “The decision of whether to award attorney’s fees and costs incurred on appeal is

discretionary.” Friedman v. Smith, 68 Va. App. 529, 545 (2018); Rule 5A:30(b).

                  The rationale for the appellate court being the proper forum to
                  determine the propriety of an award of attorney’s fees for efforts
                  expended on appeal is clear. The appellate court has the
                  opportunity to view the record in its entirety and determine
                  whether the appeal is frivolous or whether other reasons exist for
                  requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). Here, after considering the arguments

presented and the equities of the circumstances, this Court declines to award wife appellate

attorney’s fees.

                                          III. CONCLUSION

           The only argument husband preserved for appeal does not address the actual findings of

the trial court. Therefore, this Court finds husband’s new arguments waived and his remaining

argument without support. Accordingly, this Court affirms the trial court’s decision.

                                                                                              Affirmed.
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