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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and McClanahan
Record No. 2966-02-1
TERRY ALAN JACOBSEN
JACQUELINE ELIZABETH JACOBSEN
OPINION BY JUDGE ELIZABETH A. McCLANAHAN
OCTOBER 7, 2003
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
(Steven K. Whitaker; Steven K. Whitaker, P.C., on brief), for
appellant. Appellant submitting on brief.
(Steven P. Letourneau; John D. Hooker, Jr., & Associates,
brief), for appellee. Appellee submitting on brief.
Terry Alan Jacobsen (husband) appeals from a final decree of
divorce incorporating a
separation agreement between him and Jacqueline Elizabeth
Jacobsen (wife). Husband contends
the trial court erred in (1) finding that husband and wife lived
separate and apart without any
cohabitation and without interruption; (2) finding that the
parties’ reconciliation was a sham; and
(3) ratifying, affirming and incorporating the parties’
stipulation and property settlement
agreement into the final divorce decree. For the reasons that
follow, we affirm the decision of
the trial court.
Husband and wife separated on January 3, 2000, when husband left
wife for his former
wife, Lori. On February 4, 2000, husband and wife entered into a
written agreement, which,
among other provisions, gave wife the marital home. The
agreement also contained language
providing that, in the case of reconciliation between the
parties, the agreement was null and
In May 2000, husband returned to the marital home for a few days
to attend a wedding.
During that time, the parties discussed trying to reconcile.
After the wedding, wife accompanied
husband to Toledo, Ohio, where husband had relocated, and where
Lori lived. The couple
engaged in sexual intercourse while on the trip. After a week,
wife returned to the marital home
in Virginia Beach.
In July 2000, husband returned to Virginia Beach. From July 27,
2000, until September
28, 2000, husband intermittently stayed at the marital home.
Wife admitted that she "was
hoping" that husband would return to her. As a prerequisite
to reconciliation, wife told husband
that he must stop all contact with Lori, as wife was not
amenable to reconciliation while husband
maintained a relationship with his former wife.
During the July – September period, the parties spent a total of
29 days together.
However, according to wife, husband never put his clothes back
into the couple’s bedroom, and
never placed wife’s wedding ring back on her finger, as she
requested. Wife also stated, and
husband denied, that husband did not help with household and
home remodeling expenses.
Husband removed wife from his health insurance during the July -
"reconciliation" period. During this time period, he
also had business cards and a resum? printed
showing his address to be Lori’s Ohio home.
Husband stayed with Lori several times during the July -
September time period, and, at
one point, they went on a camping trip together. Husband
admitted he "possibly" had
intercourse "once" with Lori during that time. When
husband was away from Lori, he had
constant communications with her, either on the cell phone that
Lori provided, or by e-mail.
Husband also maintained a separate post office box, where he
received correspondence from her.
After wife learned about the camping trip, and overheard husband
telling Lori on the
telephone that he loved her, wife said she realized she and
husband would not be able to
reconcile. On September 28, 2000, after an argument about
husband’s continued contact with
Lori, husband left, and the parties separated permanently.
Wife filed a bill of complaint seeking divorce from husband on
October 19, 2000.
Pursuant to a decree of reference from the circuit court, the
matter was referred to a
commissioner in chancery ("commissioner"). The
commissioner held an evidentiary proceeding
on January 9, 2002.
Besides husband and wife, Jay Ross Laney ("Laney"), a
friend of both parties, who had
known husband for twenty-three years and wife for twelve years,
testified before the
commissioner. When asked if the parties had reconciled, Laney
stated that the parties did not
seem like husband and wife during the July – September period.
He said they acted like "two
people getting together, maybe trying to work something out or
maybe trying to get something
settled between them."
Laney corroborated husband’s constant surreptitious
communication with Lori. He stated
that husband often talked on the cell phone with Lori while he
was in the yard, the detached
garage, or his car, while wife was in the house and unable to
hear husband on the phone. Laney
also testified that he and husband went on a business trip to
Texas in September and that during
that time he heard husband and Lori say over a speakerphone that
they loved each other.
Laney stated that husband told him that his intention in
reconciling with wife was only to
get the house back. Laney testified that husband told him that
"he was losing too much" by
giving wife the house, that he intended to go back to Lori, that
he was in Virginia Beach "to get
the house back," and that he did not intend to reconcile
with wife. Laney recounted a
conversation he had with husband, quoting husband as saying
about wife, "F that woman, I don’t
care about her. All I want is my house." Laney also stated
that husband offered to take care of
him financially if husband got the house back.
Husband testified that Laney misconstrued the recounted
conversation and that at the
time he had made the statements, he was angry with his wife, and
cross-examination, husband admitted that it was possible to be
reconciled with his wife and at
the same time maintain a "girlfriend on the side."
The commissioner found from the evidence that the parties
separated with the intent of
terminating the marital relationship on January 3, 2000, and had
lived separate and apart without
cohabitation and without interruption. The commissioner also
reported that the parties had a
valid separation agreement, but that husband sought to avoid the
agreement by the defense of
reconciliation. The commissioner found, as a factual matter,
that husband intended a sham
reconciliation solely for the purpose of avoiding the agreement
and not for the purpose of
reconciliation and that husband’s testimony was not credible
when viewed in light of the
testimony of the other witnesses and the evidence. The
commissioner recommended that the
agreement be incorporated into the divorce decree.
Husband filed exceptions to the commissioner’s report,
whereupon, on May 1, 2002, the
circuit court heard argument with regard to whether the
commissioner erred in finding the parties
had lived separate and apart without cohabitation and without
interruption since January 3, 2000,
and whether the parties had reconciled. At the end of the
hearing, the chancellor stated:
Counsel, what I see before me and what a review of the file and
Commissioner’s recommendation indicates to me is that this is a
woman, Mrs. Jacobsen, who, perhaps, was motivated by a sincere
desire to save her marriage; on the other hand, the evidence
indicates to me that Mr. Jacobsen, the husband, was motivated by
dollar sign represented by the equity in their residence ––
would like to have back the property.
The commissioner had the opportunity to listen to and observe
the demeanor and tone of these
parties as they testified. He found in this case that the
husband intended a sham by his purported
reconciliation with wife. The chancellor found that the evidence
fully supported the
A final decree of divorce was entered on October 29, 2002,
granting wife a divorce based
on the grounds that the parties had lived separate and apart
without cohabitation and without
interruption for a period in excess of one year. The court
further ratified, affirmed and
incorporated the parties’ February 4, 2000 separation agreement
into the divorce decree.
This Court reviews "the evidence in the light most
favorable to . . . the party prevailing
below and grant[s] all reasonable inferences fairly deducible
therefrom." Anderson v. Anderson,
29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). Although the
report of a commissioner in
chancery does not carry the weight of a jury’s verdict, see Code
? 8.01-610, "’an appellate court
must give due regard to the commissioner’s ability, not shared
by the chancellor, to see, hear, and
evaluate the witnesses at first hand.’" Jarvis v. Tonkin,
238 Va. 115, 122, 380 S.E.2d 900, 904
(1989) (quoting Morris v. United Virginia Bank, 237 Va. 331,
337-38, 377 S.E.2d 611, 614
(1989)). "[I]ntent . . . is a question of fact to be
determined from the evidence." Hall Bldg. Corp.
v. Edwards, 142 Va. 209, 215, 128 S.E. 521, 523 (1925). "A
commissioner’s findings of fact
which have been accepted by the trial court ‘are presumed to be
correct when reviewed on appeal
and are to be given "great weight" by this Court. The
findings will not be reversed on appeal
unless plainly wrong.’" Barker v. Barker, 27 Va. App. 519,
531, 500 S.E.2d 240, 245-46 (1998)
(quoting Rowe v. Rowe, 24 Va. App. 123, 140, 480 S.E.2d 760, 768
(1997)). See also Gilman v.
Gilman, 32 Va. App. 104, 115, 526 S.E.2d 763, 768-69 (2000).
The public policy of the Commonwealth of Virginia is to
encourage reconciliation of
separated spouses and to preserve marriage. Coe v. Coe, 225 Va.
616, 303 S.E.2d 923 (1983).
Reconciliation is the resumption of one’s marital status by
voluntarily living together, openly as
husband and wife. Crenshaw v. Crenshaw, 12 Va. App. 1129, 408
S.E.2d 556 (1991).
Reconciliation means more than simply cohabitation or the
observance of civility; it
comprehends a fresh start and genuine effort by both
parties. Black’s Law Dictionary 1272 (6th
ed. 1990). Reconciliation must exhibit proof that the parties
intend to live together as husband
and wife and take up their respective roles in the relationship.
In order that the evidence may
satisfactorily establish such a reconciliation and resumption of
cohabitation as will affect a
separation agreement, it must ordinarily appear that the parties
have established a home and that
they live together in it in the normal relationship of husband
and wife. Roberts v. Pace, 193 Va.
156, 159, 67 S.E.2d 844, 846 (1951).
Mere casual cohabitation between the parties, after the
separation, unaccompanied by resumption of normal married life
together, or reasonable explanation for their failure so to do,
sufficient to show a reconciliation or an agreement to live and
cohabit together again on a permanent basis as husband and wife.
Id. "[C]ohabitation on a spasmodic basis . . . cannot be
dignified into the status of a
reconciliation in the sense demanded by society of a husband and
wife living with each other on
a permanent basis." Id. at 161, 67 S.E.2d at 846-47. Normal
married life must be viewed in the
context of a couple’s married life together as it existed before
they separated. The evidence in
this case showed that husband cohabited with wife on a
twenty-nine days out of seventy (twelve in July, thirteen in
August and just four in September),
while continuing to engage in a romantic relationship with a
woman outside the marriage. Given
husband’s continuing antics with his paramour, and wife’s
prerequisite to reconciliation that
husband end that relationship, the parties cannot be said to
have resumed normal married life
To prove reconciliation, the parties must resume matrimonial
cohabitation with genuine
intent. The party seeking to avoid an agreement based on a
defense of reconciliation has the
burden of proving that the reconciliation was genuine. The trial
court found from the evidence
that husband’s statements and conduct proved that he did not
intend to reconcile with wife.
Husband asserts that the court should employ an objective intent
test. He asserts that the parties’
conduct in residing together and engaging in sexual intercourse
with each other while holding
themselves out as a married couple is enough to constitute a
resumption of their marital
relationship. He argues that, when the parties attempted to
resume their relationship, their intent
to reconcile should be presumed.
Resumption of sexual relations is only a factor in establishing
a valid reconciliation. "[T]he parties also must resume the
performance of marital duties while
living together on a continuous basis." Petachenko v.
Petachenko, 232 Va. 296, 299, 350 S.E.2d
600, 602 (1986). But, more than outward signs of reconciliation
are also necessary. The parties
must exhibit good faith. Good faith embodies honest purpose, and
a fundamental expectation of
fair and reasonable conduct. See Black’s; supra, at 693;
Michael P. Van Alstine, Of Textualism,
Party Autonomy and Good Faith, 40 Wm. and Mary L. Rev. 1223
(1999). A valid reconciliation
requires a mutual intention to resume the marital relationship
absent bad faith. A husband who
continues an affair with another woman, while purportedly
engaging in reconciliation with his
wife that is motivated by defeating a separation agreement, is
exhibiting bad faith. Such bad
faith behavior does not affect the validity of the separation
The evidence and exhibits in this case, in fact, support the
commissioner’s findings that
husband intended a sham reconciliation solely for the purpose of
avoiding the agreement, and not
for the purpose of reconciliation. Husband told Laney several
times that he was only back with
wife so he could get the house. He continually called his
paramour. He told his paramour he
loved her in the presence of Laney. He went on a camping trip
with the paramour, and visited
her in Ohio. He admitted to "possibly" having sex with
the paramour during the period of
supposed reconciliation. He e-mailed the paramour. He dropped
wife from his insurance. He
had a resum? and business cards printed to include his
paramour’s address in Ohio rather than in
Virginia where he was supposedly reconciled with his wife. The
evidence in this case solidly
supports the commissioner’s findings regarding husband’s intent,
and will not be reversed.
The separation agreement that the parties entered into on
February 4, 2000, which, inter
alia, divided their joint property, including a provision
that granted wife sole possession of the
parties’ residence is valid. The agreement specifically stated
that in the event of reconciliation
between the parties, the agreement was unenforceable and null
and void in all aspects.
Husband sought to avoid the agreement by the defense of
because the facts support the trial court’s finding that the
parties’ purported reconciliation was a
sham, the agreement remains valid. Each party has a duty to act
in good faith, and when a party
acts in bad faith, there cannot be a reconciliation. Husband
clearly acted in bad faith and had no
intent to resume his marriage to wife. There was no
reconciliation. The trial court, therefore, did
not err in ratifying, affirming and incorporating the parties’
stipulation and property settlement
agreement into the final divorce decree. Finding no error, this
Court affirms the decision of the
provided: "18. That in the event of a reconciliation between the parties
this Agreement is unenforceable and null and void on [sic] all
193 Va. at 161, 67 S.E.2d at 846-47.
contends that this case should be governed by Yeich v. Yeich, 11 Va. App.
509, 399 S.E.2d 170 (1990). That case held that when parties to
a separation agreement
thereafter reconcile, the agreement is terminated. The Yeich
Court presumed "intent at the time
of reconciliation to resume the marital relationship in all
respects and intent to terminate any
prior agreement restricting the rights of one of the spouses,
unless the parties indicate otherwise
at the time of the reconciliation." Id. at 514, 399 S.E.2d
at 173. In contrast, in this case, the trial
court did not have to presume intent because it found from the
evidence that the parties did not,
in fact, reconcile. While wife may have intended reconciliation,
it was clear that husband did not
have a genuine intent to do so. Therefore, the Yeich holding
does not apply.