Grisso v. Nolen

Present:   All the Justices

SANDRA NOLEN GRISSO
                                          OPINION BY
v.   Record No. 002927         JUSTICE LAWRENCE L. KOONTZ, JR.
                                       November 2, 2001
DILLARD LAWSON NOLEN


             FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                  William N. Alexander, II, Judge


      In this appeal, we consider whether a decedent’s former

spouse had standing to petition the circuit court to have the

decedent’s body disinterred and reburied in accord with what he

contended was the decedent’s expressed wish regarding her final

resting place.

                              BACKGROUND

      Dillard Lawson Nolen and Lorraine Chitwood Nolen were

married in 1955.   The couple had one child, Sandra Nolen Grisso.

Dillard Nolen and Lorraine Nolen were divorced in 1993, but

continued to cohabit intermittently for the next six years until

Lorraine’s death on August 4, 1999.

      Lorraine Nolen died intestate and left no written

instructions concerning the disposition of her body.     Grisso, as

her mother’s next of kin and sole heir, had her mother’s body

interred at Sandy Ridge Baptist Church in Franklin County.

      On January 7, 2000, Dillard Nolen filed a petition in the

Circuit Court of Franklin County, styled In Re: Lorraine
Chitwood Nolen, seeking an order to have Lorraine Nolen’s body

disinterred and reburied in one of two adjoining burial plots at

Franklin Memorial Park in Franklin County.   In the petition,

Dillard Nolen alleged that Lorraine Nolen had “at all times

indicated her desire to be buried in Franklin Memorial Park,”

and for that reason in 1998 he had purchased the two burial

plots and a headstone engraved with his name and that of his

former spouse.   Dillard Nolen also alleged that he had purchased

a pre-paid funeral service contract for Lorraine Nolen in 1993

prior to the couple’s divorce.   He further alleged that Grisso

had been estranged from both her parents “for a long period of

time.”   Grisso was made a party to the proceeding.

     On March 16, 2000, Grisso filed a demurrer to the petition.

Grisso contended that Dillard Nolen lacked standing to petition

for the disinterment and reburial of Lorraine Nolen’s body

because, as a result of the couple having divorced, he was a

legal stranger to Lorraine Nolen at the time of her death.

Grisso conceded that her parents were cohabiting at the time of

her mother’s death, but contended that this did not confer upon

her father the necessary standing to bring the petition for

disinterment because Virginia does not recognize common law

marriage.   Grisso further contended that because Dillard Nolen

had failed to obtain a written statement from Lorraine Nolen

authorizing him to arrange for the disposition of her remains

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upon her death, in accordance with Code § 54.1-2825, he could

not seek through equity what he had failed to accomplish at law. 1

     In an opinion letter dated June 27, 2000, the chancellor

ruled that although Dillard Nolen “is legally a stranger to

Lorraine [Nolen], in fact he is not.”   The chancellor reasoned

that the couple’s long marriage and continued intermittent

cohabitation following their divorce created a sufficient

relationship to provide Dillard Nolen with standing to assert in

the petition Lorraine Nolen’s alleged expressed wish with regard

to the disposition of her body.   Upon reaching this conclusion,

the chancellor then relied on Goldman v. Mollen, 168 Va. 345,

356, 191 S.E. 627, 632 (1937), for the proposition that it is

the duty of the court to see to it that the decedent’s expressed

wish is given effect and, accordingly, overruled the demurrer.

The chancellor’s ruling was memorialized in an order dated July

24, 2000.   That order gave leave for Grisso to file an answer to

the petition within fifteen days.




     1
      Grisso also filed a motion seeking sanctions against
Dillard Nolen, alleging that he had filed the petition for
disinterment in order to “get even” with her for obtaining a
judgment against him to recover her mother’s personal property.
The chancellor’s denial of the motion for sanctions is not at
issue in this appeal.




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     Grisso filed a motion for reconsideration of the

chancellor’s ruling, noting that Goldman involved a dispute

between the surviving next of kin of the decedent and the

trustees of the cemetery where the decedent’s remains were

interred and, thus, the equity authority of the court had been

properly invoked by persons with standing to bring the action to

disinter those remains.    In the present case, by contrast,

Grisso contended that the equity authority of the court should

not be invoked based upon the petition of a legal stranger

regardless of the factual relationship between that legal

stranger and the decedent.    The chancellor took no action on the

motion for reconsideration.

     On August 2, 2000, Grisso filed an answer in which she

denied that she and her mother had been estranged.   She further

denied that her mother’s expressed wish had been to be buried in

Franklin Memorial Park and that the purchase of the burial plots

and the pre-paid funeral services had been done to accomplish

her mother’s wish with regard to her place of burial.

     On August 30, 2000, the chancellor held an ore tenus

hearing on the petition.   Because this appeal is limited to the

question of standing, we need not recount in detail the evidence

on the merits of the petition developed at that hearing.    It

will suffice to say that the record shows that the evidence was

in conflict regarding whether Lorraine Nolen had expressed a

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wish to be buried at Franklin Memorial Park.   There was evidence

that following the couple’s divorce and a subsequent violent

confrontation between her husband and daughter, Lorraine Nolen

had expressed a vehement desire not to be buried next to her

husband, but she did not expressly state where she would prefer

to be buried.   However, there was evidence that, during one

period when the couple had reconciled, Lorraine Nolen had

accompanied her former husband to Franklin Memorial Park when he

purchased the burial plots and headstone.   There was also

evidence that she later told several relatives and friends that

she would be buried in Franklin Memorial Park next to her former

husband.

     Although Dillard Nolen had attempted to have his former

wife “make somebody power of attorney” because Grisso was

“liable to bury [her] anywhere,” Lorraine Nolen declined to make

such an election.   There was no dispute that the relationship

between Dillard Nolen and Grisso was strained beyond the point

of foreseeable reconciliation.

     The chancellor resolved the conflict in the evidence and

ruled that Lorraine Nolen’s wish had been to be buried at

Franklin Memorial Park next to her former husband.   By final

order entered on September 10, 2000, the chancellor ordered that

Dillard Nolen be permitted to have the body of Lorraine Nolen



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“disinterred from Sandy Ridge Baptist Church and reinterred at

Franklin Memorial Park.”    We awarded Grisso this appeal.

                              DISCUSSION

     As noted above, the issue raised in this appeal is limited

to whether the chancellor erred in ruling that Dillard Nolen had

standing to bring the petition seeking the disinterment and

reburial of his former wife’s body.      In general terms, “[t]he

concept of standing concerns itself with the characteristics of

the person or entity who files suit.       The point of standing is

to ensure that a person who asserts a position has a substantial

legal right to do so and that his rights will be affected by the

disposition of the case.    In asking whether a person has

standing, we ask, in essence, whether he has a sufficient

interest in the subject matter of the case so that the parties

will be actual adversaries and the issues will be fully and

faithfully developed.”     Cupp v. Board of Supervisors, 227 Va.

580, 589, 318 S.E.2d 407, 411 (1984) (internal citation

omitted); see also Goldman v. Landsidle, 262 Va. 364, 371, 552

S.E.2d 67, 71 (2001).    These general terms regarding standing

develop a more precise meaning and resulting application within

the context of the factual circumstances and the legal

proceeding involved in a specific case.

     In the present case, it is not disputed that Lorraine Nolen

made no testamentary provision regarding her desired final

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resting place and did not “make arrangements for [her] burial or

the disposition of [her] remains” in accordance with Code

§ 54.1-2825.   Under such circumstances, there also can be no

dispute that upon her death, the proper determination of the

place of her burial rested with her personal representative, her

surviving spouse, or her next of kin.   Goldman, 168 Va. at 354,

191 S.E. at 631.   Thus, Grisso, as her mother’s next of kin, was

vested with the authority to determine the place of her mother’s

burial. 2

     By contrast, it is apparent that Dillard Nolen had no

authority to arrange for the disposition of his former wife’s

body upon her death.   He was not authorized to make such

arrangements by a designation made pursuant to Code § 54.1-2825,

and he was not a person entitled to preferential appointment as

the personal representative of Lorraine Nolen’s estate under

Code § 64.1-118.   Dillard Nolen was not Lorraine Nolen’s

“surviving spouse” as contemplated in Goldman, nor was he among

Lorraine Nolen’s “next of kin” as that term is defined with

reference to who may make such arrangements because he was not



     2
      Although the record is not clear on this point, it would
appear that Grisso also qualified as the personal representative
of her mother’s estate. Certainly, as next of kin and sole
heir, she would have been the preferred person to so qualify.
Code § 64.1-118.



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the “legal spouse” of the decedent at the time of her death.

See Code § 54.1-2800.

     For these reasons, beyond question Lorraine Nolen’s body

was properly buried at Sandy Ridge Baptist Church,

notwithstanding the subsequent revelation that her wish may have

been to have her body buried at Franklin Memorial Park.   This is

particularly true in light of the fact that no challenge to the

selection of the place of burial at Sandy Ridge Baptist Church

was raised prior to the burial there, and no assertion is made

that Grisso knowingly selected that place of burial against her

mother’s wish.   It is in this factual context that we consider

the issue of Dillard Nolen’s standing to petition for

disinterment and reburial of his ex-wife’s body.   Our focus is

on whether he had a sufficient legal interest in Lorraine

Nolen’s wish regarding her final resting place so as to permit

the court to invoke its equity authority to grant his petition.

     Placing great reliance on the statement in Goldman that the

chancellor had a duty to determine and give effect to the wish

of the decedent with respect to the her place of burial, Dillard

Nolen contends that he had standing because the suit was not

adversarial in nature, but was brought “in rem” in order to

permit the court to determine and give effect to Lorraine

Nolen’s wish regarding her final resting place.    In effect,

Dillard Nolen contends that the suit was not brought by him as

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an adversarial party, but merely filed by him in his capacity as

an interested person with evidence on the issue to be decided by

the court.   We cannot agree with this novel premise regarding

standing to invoke the authority of the court in equity to

consider such a weighty and sensitive matter as whether to allow

the disinterment of a body from a proper grave.

     There can be no question of the authority of the court in

equity to authorize the disinterment of a body for reburial in

another place.   See, e.g., Grinnan v. Fredericksburg Lodge, 118

Va. 588, 592, 88 S.E. 79, 80 (1916).    Among other reasons, this

authority is necessary in order to give effect to the principle,

based upon a long-standing societal belief in the sanctity of

giving effect to a decedent’s wishes, that “the expressed wish

of one, as to his final resting place, shall, so far as it is

possible, be carried out.”   Goldman, 168 Va. at 356, 191 S.E. at

632 (citation omitted).

     However, that authority must be tempered by the principle,

based upon an equally long-standing societal belief in the

sanctity of graves, that “[i]nterments once made should not be

disturbed except for good cause.”   Id. at 355, 191 S.E at 631.

Indeed, even where the party seeking disinterment was also the

party responsible for selecting the initial gravesite, courts

will not allow a violation of the final place of interment



                                    9
without good cause.   See, e.g., Dougherty v. Mercantile-Safe

Deposit and Trust Company, 387 A.2d 244, 246-47 (Md. 1978).

     Contrary to the chancellor’s opinion, the circumstances of

the couple’s thirty-eight year marriage and continued periods of

cohabitation following their divorce are insufficient to confer

upon Dillard Nolen any cognizable interest or legal standing

with respect to matters concerning his former wife.    See, e.g.,

Gloth v. Gloth, 154 Va. 511, 535, 153 S.E. 879, 886 (1930)

(following divorce “the marriage bond is completely severed”).

One of the principal effects of a decree of divorce is to sever

the property interests of the two parties including the

extinguishing of all contingent property rights of one spouse to

the property of the other.   Code § 20-111.   Similarly, to the

extent that the authority to determine the disposition of a

decedent’s remains is a quasi-property right of a surviving

spouse, Goldman, 168 Va. at 354, 191 S.E. at 631, that right

would not survive the entry of a divorce decree.    Cf. Vaughan v.

Vaughan, 200 N.E. 912, 913-14 (Mass. 1936) (holding that wife

had standing to seek disinterment where death of husband

occurred prior to entry of decree of divorce).

     In short, under the specific facts of this case, Dillard

Nolen was a legal stranger to Lorraine Nolen as the result of a

divorce decree.   As such, and notwithstanding what evidence he

might have regarding Lorraine Nolen’s wish as to the final

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resting place of her body, he had no cognizable interest in the

place of her burial and, thus, no standing to seek the

disinterment of her body for reburial.    Accordingly, we hold

that the chancellor erred in overruling the demurrer to the

petition filed by Grisso, a person with legal standing to

challenge the requested disinterment and reburial.

                             CONCLUSION

     For these reasons, we will reverse the judgment of the

chancellor and enter final judgment dismissing the petition for

disinterment and reburial.

                                        Reversed and final judgment.




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