Domestic Relations: Wife waited too long to challenge reason for divorce

Where the wife argued that she should have been granted a divorce on grounds of husband’s adultery, instead of based on the one-year separation as granted by the circuit court, but she failed to timely appeal the divorce decision, the appellate court lacked jurisdiction to consider the issue.

Background      

Leslie Karen Sweeney-Fagan appeals the circuit court’s final divorce decree from Michael Christopher Fagan, as well as its equitable distribution, spousal support and attorney’s fee awards.

Divorce

Wife argues that the circuit court erred by failing to “award [w]ife a divorce based on [h]usband’s adultery proven by clear and convincing evidence and erred in its conclusion that ‘it doesn’t make any legal difference.’” Husband argues that wife’s appeal is barred because the circuit court’s divorce decree was final and became unappealable under Rule 1:1.

Although it reserved jurisdiction to determine ancillary issues, the circuit court’s Dec. 30, 2020, divorce order expressly provided that it was final as to the grounds of divorce. Wife did not note an appeal until Dec. 14, 2023. Thus, this court has no jurisdiction to consider wife’s challenge to the grounds on which the circuit court awarded the divorce.

Wife contends that this court retains jurisdiction pursuant to the amended Code § 17.1-405, which prohibits interlocutory appeals involving divorce decrees. Wife’s argument is unpersuasive. Wife’s failure to timely file an appeal leaves this court without jurisdiction to consider this assignment of error.

Distribution

Wife contends that “[e]quity requires that [w]ife’s personal property in [h]usband’s possession such as the three-stone ring and the Christmas items should have been ordered to be returned to [w]ife.” But wife failed to provide evidence from which the circuit court could classify or value these disputed items.

The court opined that, “[a]s it stands, the parties disagree generally about the ornaments, but leave the court to speculate wildly on classification, identification, and value.” Further, the court found “scant evidence” on the value of wife’s jewelry, and it had unsubstantiated contentions from each party regarding the three-stone ring.

Wife failed to provide evidence on which to base an equitable distribution of the parties’ tangible personal property. As such, the circuit court did not abuse its discretion in its equitable distribution award.

Moreover, wife conceded at the hearing she “believe[d] that those items have since been dealt with . . . that [each] will be keeping their own.” “[A] party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.” Accordingly, wife has waived her arguments regarding the three-stone ring and Christmas items.

Support

Wife contends that the circuit court erred in denying her “retroactive pendente lite spousal support from the date of filing until October 7, 2020[.]” The court disagrees. The record supports the circuit court’s finding that wife did not present any specific evidence of need from the date of filing her complaint to Oct. 8, 2020, to justify retroactive spousal support.

Attorneys’ fees

The circuit court explicitly stated that it had considered “the relevant procedural history of the case, the parties’ legal positions, the relative financial circumstances of the parties; and previous settlement proposals.” Husband’s attorney also submitted an affidavit and detailed itemization of the incurred attorney’s fees. Considering the totality of the circumstances, this court concludes that the circuit court did not abuse its discretion in awarding attorney’s fees to husband.

Remaining arguments

Wife’s remaining assignments of error are raised for the first time on appeal and are thus waived. Wife generally asks this court to invoke the ends of justice, stating that “a miscarriage of justice occurred in this case as she was prejudiced by the [circuit] court’s erroneous legal conclusions and decisions, which cumulatively resulted in negative consequences to [her] property rights.”

The record does not affirmatively demonstrate a grave injustice occurred requiring reversal of the circuit court’s decision. This court finds no error in the circuit court’s holdings; thus, it declines to invoke the ends of justice exception to consider wife’s unpreserved arguments.

Affirmed in part and dismissed in part.

Sweeney-Fagan v. Fagan, Record No. 2257-23-4, July 15, 2025. CAV (unpublished opinion) (Chaney). From the Circuit Court of Loudoun County (Fleming Jr.). Minji Kim (Prosper Law PLLC, on briefs), for appellant. Heather S. Miller (Sevila, Saunders, Huddleston, White, on brief), for appellee. VLW 025-7-184. 19 pp.