Present: Hassell, C.J., Keenan, Koontz, Lemons, Agee, and
Goodwyn, JJ., and Lacy, S.J.
MARRILL W. PURCE
v. Record No. 062368 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
January 11, 2008
VANESSA C. PATTERSON
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Joseph E. Spruill, Jr., Judge
In this appeal, Marrill W. Purce asks us to reverse the
judgment of the trial court holding that he willfully
abandoned his wife, Dorothy M. Purce, who died on January 19,
2005, and therefore, under Code § 64.1-16.3, was not entitled
to an elective share of her augmented estate.
FACTS
We recite the facts based on a written statement of facts
signed by the trial court. Dorothy and Marrill were married
in July 1988. Dorothy had many health problems throughout the
marriage and, while the couple lived together, friends and
neighbors often took Dorothy to doctors’ appointments, cleaned
the home, and cooked meals. Dorothy’s daughter, Vanessa C.
Patterson, testified that Marrill did not visit Dorothy in the
hospital during her illnesses and did not take care of her
when she returned home.
Marrill and Dorothy had a tumultuous marriage. Dorothy
complained to her daughter and friends of Marrill’s treatment
of her. In April 1997, Dorothy obtained a protective order
against Marrill based on his physical abuse of her, and she
renewed the order a few months later. The protective order
expired in June 1998, and the parties resumed cohabitation.
In October of 1998, Dorothy sought another protective order,
claiming she was under severe stress because Marrill’s
girlfriend was harassing her, Marrill was drinking and staying
out late every night, and she was afraid that she might have a
stroke. The court denied the protective order.
In June 2000, Dorothy and Marrill agreed that Dorothy
would leave the marital residence. After the separation, in
August 2000, Dorothy sought a third protective order, claiming
Marrill had threatened to kill her; the petition was denied.
Dorothy filed a fourth petition for a protective order in June
2002, claiming among other things that Marrill hurt her arm
and threatened her; however, she withdrew this petition.
Dorothy filed for a divorce in January 2003, identifying
the grounds for the divorce as living separate and apart for
more than one year. The divorce decree was never issued, and
the parties remained legally married at the time of Dorothy’s
death.
Dorothy brought into the marriage rental properties she
owned. Marrill, on the other hand, was retired during most of
the marriage. Marrill did not participate in the management
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of the rental properties, and he did not provide any financial
support to Dorothy after the separation. During her last
illness, Dorothy lived with her daughter in New Jersey.
Marrill did not know Dorothy was in New Jersey, nor did he
visit, call, or otherwise communicate with her.
DISCUSSION
In this appeal, Marrill first asserts that in determining
whether he abandoned his wife, the trial court erred in
considering facts occurring subsequent to the couple’s agreed-
upon separation. Marrill argues that post-separation conduct
is not relevant to whether one spouse abandoned the other. We
disagree.
Code § 64.1-16.3(A) specifically addresses the period of
abandonment that is relevant to a claim for an elective share:
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.
(Emphasis added.) The clear language of this Code section
requires a court to determine whether the willful desertion or
abandonment continued “until the death of the spouse” and that
determination is not limited to consideration of actions
occurring prior to a separation, should one have occurred.
“In construing a statute, we must apply its plain meaning, and
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‘we are not free to add [to] language, nor to ignore language,
contained in statutes.’ ” BBF, Inc. v. Alstom Power, Inc.,
274 Va. 326, 331, 645 S.E.2d 467, 469 (2007) (quoting SIGNAL
Corp. v. Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257
(2003)). Based on the statutory language recited above, we
conclude that the trial court did not err in considering facts
occurring subsequent to the separation in determining whether
Marrill willfully abandoned Dorothy for purposes of
entitlement to an elective share of her augmented estate.
Marrill’s remaining four assignments of error challenge
the sufficiency of the evidence to support a finding of
abandonment. Whether Marrill abandoned Dorothy is a mixed
question of law and fact. Thus, “we give deference to the
trial court's findings of fact and view the facts in the light
most favorable to the prevailing party, but we review the
trial court's application of the law to those facts de novo.”
Collins v. First Union Nat'l Bank, 272 Va. 744, 749, 636
S.E.2d 442, 446 (2006).
The term “abandonment” is not defined in the statutes
governing elective share claims. We agree with the parties
that principles developed in domestic relations law relating
to abandonment are helpful in determining the issue of
abandonment under Code § 64.1-16.3.
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In the domestic relations context, “abandonment” is
generally used synonymously with “desertion.” This Court has
defined desertion as “a breach of matrimonial duty – an actual
breaking off of the matrimonial cohabitation coupled with an
intent to desert in the mind of the deserting party.”
Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600,
602 (1986). Domestic relations cases have considered
“matrimonial duty” to include cooking, cleaning, support, and
contributing to the well-being of the family. See Goodwyn v.
Goodwyn, 222 Va. 53, 54-55, 278 S.E.2d 813-14 (1981); Fussell
v. Fussell, 182 Va. 720, 722, 30 S.E.2d 555, 556 (1944).
Mindful of these domestic relations cases, in resolving the
issue in this case we will use the word “abandonment” to mean
a termination of the normal indicia of a marital relationship
combined with an intent to abandon the marital relationship.
While the term “abandonment” is similarly defined for
purposes of domestic relations and elective share matters,
there are significant differences in the analysis of the
evidence when resolving the issue in the domestic relations
and elective share contexts. For example, as we have noted,
the relevant time period for determining abandonment for
purposes of Code § 64.1-16.3 extends to the time of the
deceased spouse’s death and is not limited to the moment of
separation, or the filing of a petition for divorce, as it is
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when abandonment is the ground upon which a divorce is sought.
Compare Sprott v. Sprott, 233 Va. 238, 242, 355 S.E.2d 881,
883 (1987) (finding desertion by wife based on her actions
leading to her departure from the marital home), Breschel v.
Breschel, 221 Va. 208, 212, 269 S.E.2d 363, 366 (1980)
(finding no desertion because wife was legally justified in
leaving based on facts leading up to her departure), and
Hudgins v. Hudgins, 181 Va. 81, 87, 23 S.E.2d 774, 777 (1943)
(“[T]he absenting of one spouse from the other after the
institution and during the pendency of a suit for divorce
. . . is not desertion in law.”), with Code § 64.1-16.3. A
second distinction is the effect of the parties’ agreement to
separate or to seek a divorce. In an elective share analysis,
an agreed separation or petition for divorce is relevant
evidence of the termination of cohabitation, but is not
evidence which defeats a finding of willful abandonment. In
contrast, such an agreed separation or divorce petition may
preclude a claim of abandonment in a divorce action because a
finding of abandonment in that context is based on fault which
is inconsistent with parties agreeing to terminate
cohabitation or to seek a divorce. With these distinctions in
mind, we now turn to the evidence in this case.
In this case, the mutual decision to cease cohabitation
and Dorothy’s divorce petition based on living separately for
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more than a year implies that the termination of the marital
relationship was not the product of willful abandonment but
rather an agreement between the parties. As discussed above,
however, this evidence is not dispositive in the context of an
elective share claim. The relevant evidence is Marrill’s
conduct and his intent. Here, the record shows that both
before and after Dorothy and Marrill agreed to separate,
Marrill’s conduct showed a lack of support for Dorothy and the
marital relationship. While living together or apart, Marrill
provided Dorothy with little or no support or care during her
illnesses and recoveries. Financially, Dorothy brought her
rental properties into the marriage and managed the properties
alone while living with Marrill. Marrill did not contribute
to Dorothy’s support in this regard.
After the separation, Marrill apparently did not
communicate with Dorothy in any meaningful way because he did
not even know she was living in New Jersey and did not
acknowledge her final illness in any way. He did not support
Dorothy financially, emotionally, or physically. Although he
testified that he did not want the marriage to end, the trier
of fact was not required to believe this testimony; indeed,
the trial court found Marrill’s testimony incredible. Nothing
in the record showed Marrill tried or intended to reconcile
with Dorothy. At the time of Dorothy’s death, Marrill had
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ceased to perform any marital duties. Therefore, we conclude
that the evidence is sufficient to support the trial court’s
holding that Marrill abandoned Dorothy prior to and continuing
until the time of her death under Code § 64.1-16.3.
Accordingly, we will affirm the judgment of the trial
court that Marrill was not eligible for an elective share of
Dorothy’s augmented estate.
Affirmed.
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