Andrews v. Creacey

• Decision Date: 03 August 2010
• Docket Number: Record No. 1964-09-4.
• Citation: Andrews v. Creacey, 56 Va.App. 606, 696 S.E.2d 218 (Va. App. 2010)
• Parties: Mary Helen ANDREWSv.Margaret Ann CREACEY, Barbara J. Thompson and Steven M. Andrews, Co-Guardians of Joseph Andrews.
• Court: Virginia Court of Appeals

56 Va.App. 606

696 S.E.2d 218

Mary Helen ANDREWSv.Margaret Ann CREACEY, Barbara J. Thompson and Steven M. Andrews, Co-Guardians of Joseph Andrews.

Record No. 1964-09-4.

Court of Appeals of Virginia Richmond.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark Bodner for appellant.

Jean Galloway Ball, Fairfax, for appellees.

Present: FELTON, C.J., and ELDER and FRANK, JJ.

FRANK, Judge.

Mary Helen Andrews, appellant(wife), contends the trial court erred in: (1) awarding Joseph Andrews, husband, an incapacitated adult, a divorce on the ground that his guardians deemed a divorce to be in his best interest; (2) finding that husband failed to prove he had the requisite intent to divorce wife prior to their separation; (3) refusing to admit wife's exhibit, an application for veteran's benefits, which was completed by husband's daughter; (4) refusing to credit wife for husband's transfer of $55,000 from a marital account into his personal account; (5) refusing to award wife any of husband's pension; (6) refusing to award wife spousal support; (7) admitting into evidence a report from the guardian ad litem; and (8) ordering wife to vacate the marital residence.¹For the reasons stated, we affirm.

I.GROUNDS FOR DIVORCE

On April 4, 2005, Margaret, husband's daughter, filed a petition for appointment of limited guardian and limited conservator in Fairfax County Circuit Court because of her father's “physical frailties and mental infirmities of old age.”The petition alleged husband suffered from progressive dementia, thus requiring “permanent assistance to care for his physical and medical needs....”

By amended order January 29, 2007, the court found husband to be incapacitated and appointed Margaret and Steven (one of husband's sons) as co-guardians to “attend to the personal affairs ... and [to] make decisions regarding his support, care, health, safety....”The order directed that wife have visits and telephone contact with husband.Barbara, another daughter, and Steven were appointed co-conservators to manage husband's estate and financial affairs.The order declined to appoint wife as guardian or conservator, finding she was not qualified.This order was not appealed.

On January 31, 2007, Margaret, as co-guardian of husband, filed a motion for permission to file complaint for divorce, contending a divorce was in husband's best interest.The motion alleged that contact with wife upset husband and he suffered health problems related to continued contact with wife.Husband's physician suggested terminating the visitations.The motion further recited the financial need to sell the marital residence, which wife refused to do, to insure husband's proper care.Such permission was granted by order entered May 10, 2007.²That order was not appealed.

The co-guardian filed a complaint for divorce on husband's behalf on December 23, 2008, alleging husband and wife “have lived separate and apart without cohabitation and without interruption for a period of time in excess of one year, having last lived together as husband and wife on or about November of 2005.”The trial court heard evidence on August 4, 2009 and considered arguments of counsel.

The court entered a final decree of divorce on August 11, 2009, finding husband and wife have lived separate and apart without any cohabitation and without interruption for over one year, having last lived together as husband and wife on or about November 11, 2005, and that husband “formed the intent to remain permanently separate and apart on or about August of 2006.”³The trial court, after considering conflicting evidence as to whether husband had an intent to be divorced at the time of separation, found that he did have that intent, indicating the guardian ad litem's testimony to be the most reliable.

The trial court further concluded:

Pursuant to Virginia Code § 37.2-1020(D) a guardian of an incapacitated person may seek a divorce for their ward, that evidence of the ward's wishes may be heard by the Court, but whether that is determinative of whether a ward intends to seek a divorce is a different question; that the guardians of a ward, under a best judgment standard of decision-making, can exercise any required intent to divorce on behalf of their ward.

At the hearing, in response to wife's argument that it is the intent of the parties to separate, not the judgment of the guardian, the trial court concluded the guardian could obtain a divorce when it determined it is in their ward's best interest to do so.

Wife argues, on appeal, the trial court erred in granting the divorce on the grounds that husband's co-guardian deemed a divorce to be in his best interest.She further contends there was insufficient evidence to prove that husband had an intent to divorce his wife prior to their separation.Essentially, wife argues that Code§ 37.2-1020(D) only gives the guardian standing to bring a divorce on behalf of his ward.Code§ 20-91(9)(a), she continues, sets forth the grounds of divorce.She maintains that the trial court erred in relying on the judgment of the guardian as to her ward's best interests, rather than determining whether husband intended to permanently separate from wife at the time of separation.

Our analysis must first address the interplay between Code§ 37.2-1020andCode§ 20-91(9)(a).In interpreting a statute, we endeavor “ ‘to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.’ ”Colbert v. Commonwealth,47 Va.App. 390, 394, 624 S.E.2d 108, 110(2006)(quotingJones v. Rhea,130 Va. 345, 372, 107 S.E. 814, 823(1921)).“ ‘Statutes which have the same general or common purpose or are parts of the same general plan are ... ordinarily considered as in pari materia.’ ”Lucy v. County of Albemarle,258 Va. 118, 129, 516 S.E.2d 480, 485(1999)(quotingPrillaman v. Commonwealth,199 Va. 401, 405, 100 S.E.2d 4, 7(1957)).

“Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law....[T]hey should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.”

Alston v. Commonwealth,274 Va. 759, 769, 652 S.E.2d 456, 462(2007)(quotingPrillaman,199 Va. at 405, 100 S.E.2d at 7).

Code§ 37.2-1020 states in relevant part:

C.A guardian shall maintain sufficient contact with the incapacitated person to know of his capabilities, limitations, needs, and opportunities.The guardian shall visit the incapacitated person as often as necessary.

D.A guardian shall be required to seek prior court authorization to change the incapacitated person's residence to another state, to terminate or consent to a termination of the person's parental rights, or to initiate a change in the person's marital status.

E.A guardian shall, to the extent feasible, encourage the incapacitated person to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs.A guardian, in making decisions, shall consider the expressed desires and personal values of the incapacitated person to the extent known and shall otherwise act in the incapacitated person's best interest and exercise reasonable care, diligence, and prudence.

Code§ 20-91(9)(a) provides for a divorce “when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.”

The Supreme Court of Virginia, in Hooker v. Hooker,215 Va. 415, 211 S.E.2d 34(1975), held:

Where both parties are mentally competent as in the present case, we hold that, as a prerequisite for a divorce under Code§ 20-91(9), there must be proof of an intention on the part of at least one of the parties to discontinue permanently the marital cohabitation, followed by physical separation for the statutory period.

We believe that the words “lived separate and apart” in Code§ 20-91(9) mean more than mere physical separation.In our view the General Assembly intended that the separation be coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and that this intention must be shown to have been present at the beginning of the uninterrupted two year period of living separate and apart without any cohabitation.

Id. at 417, 211 S.E.2d at 36.

We need not determine whether a divorce can be granted based upon the guardian's determination that it is in the ward's best interest to be divorced since the trial court made an alternate finding that husband “formed the intent to remain permanently separate and apart ...” from wife.See generallyChretien v. Chretien,53 Va.App. 200, 206-07, 670 S.E.2d 45, 48-49(2008).

Thus, we only need to consider whether the evidence supports the trial court's finding of intent.Intent is a question to be determined by the fact finder.Cirrito v. Cirrito,44 Va.App. 287, 305, 605 S.E.2d 268, 276(2004).We give “great deference” to the trial court's factual findings and view the facts in the light most favorable to the prevailing party below.Blackson v. Blackson,40 Va.App. 507, 517, 579 S.E.2d 704, 709(2003).Pursuant to Code§ 8.01-680, a factual determination cannot be reversed on appeal unless “plainly wrong or without evidence to support it.”Congdon v. Congdon,40 Va.App. 255, 261, 578 S.E.2d 833, 836(2003).

Wife contends the trial court's reliance on the guardian ad litem's testimony and report dated October 24, 2006, which was filed in the guardianship proceeding, was in error.The report was offered solely for husband's statement to the guardian ad litem that he wanted a divorce from wife.Counsel for wife acknowledged the limited purpose of the...