Opinion
Civil Docket No. CL11-4073
01-10-2012
RE: Howard James Marx v. William D. Hill, et al
MARY JANE HALL JUDGE Howard J. Marx, Esquire
Miller & Marx, P.C.
6171 Kempsville Circle, Suite 205
Norfolk, VA 23502 Mr. Angelo Camacho
1554 Lea View Avenue, Apt. C
Norfolk, VA 23503 Michelle R. Parker, Esquire
H. Joel Weintraub, Esquire
The Decker Firm
P.O. Box 3787
Norfolk, VA 23514 Ms. Celili P. Guevara
7846 Dallas Street, Apt. 304
Norfolk, VA 23505 Dear Counsel and Parties:
Howard J. Marx, Administrator of the Estate of Julia Guevara-Hill, deceased, petitions the Court for aid and direction of the Court regarding the distribution of the Estate and specifically asks whether the claims filed by William D. Hill, estranged spouse of the decedent, are barred by the provisions of Va. Code § 64.1-163. Upon consideration of the evidence presented and argument of counsel, the Court finds that Mr. Hill did willfully desert or abandon the marital relationship with the decedent within the meaning of the statute such that he is barred of any interest in her Estate.
Findings of Fact
Ms. Guevara-Hill consulted with attorney Cynthia Garris on September 21, 2010 about divorcing her husband. She reported a history of verbal and physical abuse from him and complained about his violent temper. She advised that her husband had been convicted of brandishing a firearm against her earlier that year.
Ms. Garris testified that she saw Ms. Guevara-Hill next on November 16, 2010, when she appeared "hysterical" and covered with cuts and bruises. Ms. Guevara-Hill told Ms. Garris that Mr. Hill had assaulted her that day, had choked her, had thrown her to the floor, and had aimed a shotgun at her. She retained Ms. Garris that day, and Ms. Garris filed for an emergency protective order and for divorce immediately. Ms. Garris appeared with Ms. Guevara-Hill in Juvenile & Domestic Relations Court the next day on her petition for a preliminary protective order. Ms. Garris testified that Mr. Hill appeared at that hearing with his own request for a preliminary protective order; and both protective orders were issued prohibiting contact between the spouses.
Ms. Guevara-Hill's Complaint for divorce (Exhibit 1) alleges that Mr. Hill constructively deserted her in January 2010. Mr. Hill's Cross-Bill for divorce (Exhibit 2) alleges that Ms. Guevara-Hill constructively deserted him on March 15, 2010. The parties lived separate and apart and actively litigated the pending divorce until Ms. Guevara-Hill's death on March 1, 2011.
The evidence conflicted as to the date when Mr. Hill moved from the marital residence and established a domicile in an apartment owned by his mother. Mr. Hill denied that he moved out until the protective order required that he do so.
DISCUSSION:
The statute governing the Administrator's Petition appears at Va. Code § 64.1-16.3:
A. If a husband or wife willfully deserts or abandons his or her spouse and such desertion or abandonment continues until the death of the spouse, the party who deserted the deceased spouse shall be barred of all interest in the estate of the other by intestate succession, elective share, exempt property, family allowance, and homestead allowance.
Mr. Hill, by counsel, argues that his separation from his wife beginning November 16 until her death the following March may not be considered a "willful" desertion or abandonment, because a court ordered him to have no contact with her. He contends that adherence to the terms of a court order cannot, as a matter of law, amount to willful desertion or abandonment. Responding to the evidence about Mr. Hill's violence toward his wife, counsel cites to the statutory language contained in Va. Code § 20-91 outlining grounds for divorce from the bond of matrimony:
A. A divorce from the bond of matrimony may be decreed:
(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other ...
Citing this statute, counsel for Mr. Hill argues that being guilty of cruelty or causing reasonable apprehension of bodily hurt cannot be tantamount to "willful desertion or abandonment" that defeats a spouse's elective share, because the General Assembly specifically articulated cruelty and apprehension of bodily hurt as grounds different from desertion or abandonment in the divorce statute. Counsel cites numerous divorce cases analyzing what circumstances do and do not constitute desertion for purposes of the divorce statute, e.g., Petachenko v. Petachenko, 232 Va. 296-298-99, 350 S.E.2d 600, 602 (1986) (willful desertion consists of breaking off of marital cohabitation and an intent to desert in the mind of the offender); Hudgins v. Hudgins, 181 Va. 81, 87, 23 S.E.2d 774 (1943)(husband's moving out upon initiating suit for divorce based on wife's cruelty is not desertion in law).
The case most similar to the one at bar is the decision of the Virginia Supreme Court in Purce v. Patterson, 275 Va. 190, 654 S.E.2d 855 (2008). In Purce, the married couple separated by agreement; and the wife filed for divorce on the grounds of living separate and apart for more than one year. She died two years after filing for divorce, while still legally married. The Supreme Court noted that their mutual decision to cease cohabitation indicated that the termination of the marital relationship was "not the product of willful abandonment" but held that "this evidence is not dispositive in the context of an elective share claim." The Court enumerated the circumstances indicating the husband's intent to terminate his marital relationship with his wife and affirmed the judgment of the trial court that he was not eligible for an elective share of her estate.
In the case at bar, both parties claimed in the petitions for divorce that the other had deserted the relationship. Both sought and obtained protective orders against the other that legally prohibited any contact whatever. Mr. Hill argued that his separation from his wife amounted to mere compliance with a court order, distinguishing his case from Purce where the husband presumably could have, but did not, involve himself in his wife's life after the separation. He overlooks, however, the fact that he too sought and received an order that prevented his wife from contacting him.
If the only relevant circumstances for determining willful desertion or abandonment is the move-out date -- whether before or after the protective order -- the outcome of this matter would be less clear. The Court, however, does not consider that date to be the sole determining factor.
The Court cannot fathom any reason why the General Assembly would refuse an elective share to an abandoning spouse but would allow.it to one who was in the process of divorce and who had been legally restrained from any contact with his wife on account of his violence toward her. The facts of this case fall within the Purce definition of abandonment, i.e., "a termination of the normal indicia of a marital relationship combined with an intent to abandon the marital relationship." 275 Va. at 195, 654 S.E.2d at 887. Because Purce found the requisite "willful desertion" notwithstanding the parties' voluntary separation, the meaning of the term in the context of the elective share statute must be different from the meaning ascribed in the context of a divorce.
The Court therefore finds that Mr. Hill's aggressive conduct toward his wife, his procurement of a protective order to prohibit his wife from contact with him, together with his request for a divorce based upon her desertion, amounts to his willful desertion or abandonment pursuant to Va. Code § 64.1-16.3, that bars his claims against her estate.
Mr. Marx is directed to prepare an order that reflects the Court's ruling.
Sincerely,
/s/
Mary Jane Hall
Judge MJH/nm