Grisso v. Nolen, 262 Va. 688 (2001) ("In the present case, it is not disputed that Lorraine Nolen made no testamentary provision regarding her desired final 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 [Page 694] mother's next of kin, was vested with the authority to determine the place of her mother's burial.")
 
 

A decedent's former spouse had no standing to petition the circuit court to have her body disinterred and reburied in accord with what he contended was the decedent's expressed wish regarding her final resting place. The judgment of the chancellor is reversed and final judgment is entered dismissing the petition for disinterment and reburial.

    Practice and Procedure — Standing — Petitions for Disinterment and Reburial — Authority of Personal Representative — Standing of Former Spouse — Cognizable Interests — Legal Strangers to Decedent

    Petitioner and the decedent were married for almost 40 years. They were divorced six years prior to decedent's death, but continued to cohabit intermittently. Decedent died intestate and left no written instructions concerning the disposition of her body. Her daughter, as next of kin and sole heir, had her mother's body interred at a church. Petitioner filed an application in circuit court for an order to have the body disinterred and reburied in one of two adjoining burial plots at a particular memorial park, alleging that the decedent had indicated her desire to be buried there, and that as a result he had purchased the two burial plots and had a headstone engraved with his name and that of his former spouse. The daughter demurred to the petition on the grounds that, as a result of the divorce, petitioner was a legal stranger to decedent at her death. The daughter 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. The chancellor overruled the demurrer, and held an ore tenus hearing. Resolving conflicting evidence, the chancellor ruled that decedent's wish had been to be buried at memorial park next to her former husband, and entered an order permitting disinterment and reburial. The daughter appeals.

1. In general terms, the 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, the question, in essence, is whether that person 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. [Page 689]

2. In the present case, it is not disputed that decedent made no testamentary provision regarding her desired final resting place and did not make arrangements for her burial or the disposition of her remains in accord with Code § 54.1-2825.

3. 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. Thus the daughter, as her mother's next of kin, was vested with the authority to determine the place of her mother's burial.

4. By contrast, it is apparent that the petitioner 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 her estate under Code § 64.1-118.

5. Petitioner was not the decedent's “surviving spouse” nor was he among her “next of kin” as that term is defined with reference to who may make such arrangements because he was not the “legal spouse” of the decedent at the time of her death.

6. For these reasons, beyond question decedent's body was properly buried at the church selected by the daughter notwithstanding the subsequent revelation that her wish may have been to have her body buried at a specific memorial park. This is particularly true in light of the fact that no challenge to the selection of the place of burial at the church was raised prior to the burial there, and no assertion is made that the daughter knowingly selected that place of burial against her mother's wish.

7. Petitioner's novel premise that this suit was brought “in rem” in order to permit the court to determine and give effect to decedent's wishes regarding her final resting place, not as an adversarial action by petitioner, cannot be accepted 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.

8. 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. Among other reasons, this authority is necessary in order to give effect to the principle, based upon a longstanding 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.

9. However, that authority must be tempered by the principle, based upon an equally long-standing societal belief in the sanctity of graves, that interments, once made, should not be disturbed except for good cause. 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 without good cause.

10. Contrary to the chancellor's opinion, the circumstances of the couple's lengthy marriage and continued periods of cohabitation following their divorce are [Page 690] insufficient to confer upon him any cognizable interest or legal standing with respect to matters concerning his former wife.

11. 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.

12. 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, that right would not survive the entry of a divorce decree.

13. In short, under the specific facts of this case, petitioner was a legal stranger to decedent at the time of her death as the result of a divorce decree. As such, and notwithstanding what evidence he might have regarding decedent's wish as to the final 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, the chancellor erred in overruling the demurrer to the petition filed by the daughter, a person with legal standing to challenge the requested disinterment and reburial.

    Appeal from a judgment of the Circuit Court of Franklin County. Hon. William N. Alexander, II, judge presiding.

Reversed and final judgment.

    William C. Leach for appellant.

    Clyde H. Perdue, Jr. (Michaux Raine, III; Raine & Perdue, on brief), for appellee.

JUSTICE KOONTZ delivered the opinion of the Court.

    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 [Page 691] 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 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 [Page 692] 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.

    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 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 [Page 693] 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 “disinterred from Sandy Ridge Baptist Church and reinterred at Franklin Memorial Park.” We awarded Grisso this appeal.

DISCUSSION

    [1] 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.

    [2-3] In the present case, it is not disputed that Lorraine Nolen made no testamentary provision regarding her desired final 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 [Page 694] mother's next of kin, was vested with the authority to determine the place of her mother's burial.2

    [4-5] 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 the “legal spouse” of the decedent at the time of her death. See Code § 54.1-2800.

    [6] 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.

    [7] 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 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 [Page 695] consider such a weighty and sensitive matter as whether to allow the disinterment of a body from a proper grave.

    [8] 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).

    [9] 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 without good cause. See, e.g., Dougherty v. Mercantile-Safe Deposit and Trust Company, 387 A.2d 244, 246-47 (Md. 1978).

    [10-12] 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).

    [13] 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 resting place of her [Page 696] 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.

FOOTNOTES

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.

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.
 
 
 
 
 
 

Paul MAZUR, Paul Woodson Mazur,
Deborah A. Mazur Silva, and
Walter E. Mazur, Plaintiffs,
v.
Lewis Victor WOODSON,
Bucktrout of Williamsburg, and
Erin Warner, Defendants.

No. 4:01CV115.
Decided: March 20, 2002.

    [F. Supp. 2d 677] Paul Mazur, Margate, NJ, pro se.

    Paul Woodson Mazur, Margate, NJ, pro se.

    Deborah A. Mazur Silva, Margate, NJ, pro se.

    Walter E. Mazur, Seattle, WA, pro se.

    Paul G. Watson, IV, Esquire, McGuire Woods, LLP, Richmond, VA, for Defendants Bucktrout & Warner.

    Alvin P. Anderson, Esquire, Kaufman & Canoles, P.C., Williamsburg, VA, Christopher R. Papile, Esquire, Kaufman & Canoles, P.C., Newport News, VA, for Defendant Woodson.

MEMORANDUM OPINION AND FINAL ORDER

    REBECCA BEACH SMITH, District Judge.

    This matter comes before the court on the motions to dismiss filed by defendant Bucktrout Funeral Home of Williamsburg, Inc. (“Bucktrout”), defendant Erin Warner, and defendant Lewis Victor Woodson (“Woodson”), pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant Woodson also filed a motion for sanctions, pursuant to Federal Rule of Civil Procedure 11(c). For the reasons set forth below, the motions to dismiss are GRANTED. The motion for sanctions is GRANTED, in part, and DENIED, in part. [F. Supp. 2d 678]

I. Factual and Procedural History

    Paul and Betty Mazur married in Virginia in 1958 and lived within the state until 1965. They subsequently moved to New Jersey. In May of 1994, Paul Mazur brought his wife back to Virginia to stay with her Aunt, Ethel W. Johnson; at that time Betty Mazur was suffering from the onset of Alzheimer's disease. In August of 1994, without the knowledge of Paul Mazur, Betty Mazur was moved from Ms. Johnson's residence to the residence of Betty Mazur's brother, Victor Lewis Woodson. In September of that year, Woodson filed a petition in the Circuit Court of James City County to have Betty Mazur declared incompetent and to have him appointed as guardian over her person and property. On October 6, 1994, Judge Person, a state circuit court judge at that time, entered an order granting Woodson's petition. On October 30, 1995, several relatives of Betty Mazur, including Paul Mazur, filed suit in the United States District Court for the District of New Jersey against the Virginia Circuit Court, raising numerous state law and constitutional challenges to Judge Person's ruling. The suit was subsequently transferred to the Western District of Virginia, and then to the Eastern District of Virginia, because the defendant circuit court is located in this district.

    By order dated June 24, 1996, Judge Clarke of this court dismissed the plaintiff's federal and state law claims against the Virginia Circuit Court. See Mazur v. Woodson, 932 F. Supp. 144, 148 (E.D. Va. 1996). On January 24, 2001, plaintiffs Paul Mazur, Paul W. Mazur, Victoria M. Mazur, Deborah A. Mazur Silva, and Walter E. Mazur filed a pro se 42 U.S.C. § 1983 petition, alleging that the 1994 guardianship order entered by Judge Person violated their constitutional rights. The suit named as defendants Woodson, the Circuit Court for the City of Williamsburg, Judge William L. Person, Jr., and the State of Virginia. By order dated July 27, 2001, this court granted the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Mazur v. Woodson, No. 4:01cv3 (E.D. Va. July 27, 2001). This court's order was affirmed by the Fourth Circuit Court of Appeals on November 15, 2001. Mazur v. Woodson, No. 01-2017, 21 Fed.Appx. 233, 2001 WL 1435539 (4th Cir. Nov. 15, 2001).

    On July 1, 2001, while the § 1983 suit was still pending, Betty Mazur died. Woodson contracted to have Bucktrout perform the burial of Betty Mazur's body. Erin Warner, an employee of Bucktrout, handled the burial service on July 5, 2001. On July 15, 2001, the plaintiffs in the instant suit filed a petition in Virginia Circuit Court in an effort to have Betty Mazur disinterred so that they could re-bury her remains in New Jersey. By order dated August 10, 2001, the state court approved the order pursuant to a consent decree signed by Woodson. The plaintiffs subsequently disinterred and re-buried Betty Mazur's corpse. On November 7, 2001, plaintiffs filed a complaint in this court, based on diversity of jurisdiction under 28 U.S.C. § 1332, against Woodson, Bucktrout, and Erin Warner, alleging intentional and negligent mishandling of a corpse under Virginia common law. They claim that they received no notice of the original burial. Due to the advanced decomposition of Betty Mazur's remains when she was disinterred, the plaintiffs claimed that they were unable to hold a proper funeral service for Betty Mazur. As a result they claim they suffered damages, including damages for infliction of emotional distress, which exceeded $75,000.1 [F. Supp. 2d 679]

    On December 13, 2001, defendant Bucktrout filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On December 14, 2001, Woodson also filed a motion to dismiss. On December 31, 2001, plaintiffs filed a response to the two motions to dismiss. On that same day, Woodson filed a motion for sanctions against the plaintiffs, pursuant to Federal Rule of Civil Procedure 11(c). On January 7, 2002, Erin Warner filed a motion to dismiss, and Woodson filed a reply to the plaintiffs' response to his motion to dismiss. On January 11, 2002, plaintiffs filed a response to Woodson's motion for sanctions. On January 14, 2002, plaintiffs filed a response to Erin Warner's motion to dismiss. On January 14, 2002, Woodson filed a reply to the plaintiffs' response to the motion for sanctions. On January 16, 2002, Bucktrout and Erin Warner filed a joint reply to plaintiffs' responses to their motions to dismiss. The various motions are now ripe for review.

II. Discussion

    Plaintiffs argue that Virginia common law provides a hierarchy of relatives who have quasi-property rights over the corpse of a deceased family member. They claim that as Betty Mazur's spouse and children, their quasi-property rights to Betty Mazur's corpse are superior to those of her brother, defendant Woodson.2 Based on this reasoning, they contend that Woodson and Bucktrout had a duty to inform them prior to burying Betty Mazur's corpse, and that failure to do so violated their quasi-property rights in her corpse. In short, plaintiffs claim that Woodson and Bucktrout had a duty to determine their wishes prior to burying Betty Mazur's corpse.

Defendants Bucktrout and Erin Warner

    Contrary to the plaintiffs' assertion, Bucktrout's responsibilities are established by Title 54.1 of the Virginia Code, not by the state's common law. Directly applicable to this case is § 54.1-2807(B), which was enacted in 1988 and provides:
 

    Funeral service establishments shall not accept a dead human body from . . . any public or private facility . . . without having first inquired about the desires of the next of kin and the persons liable for the funeral expenses of the decedent. The authority and directions of any next of kin govern the disposal of the body.

Id. (emphasis added). Betty Mazur passed away at the Riverside Convalescent Home in Newport News, Virginia, which is a private facility. Bucktrout had a statutory duty to inquire about the desires of Betty Mazur's next of kin before accepting her body from the Convalescent Home. Id. Bucktrout also had a duty to obtain “authority and directions of any next of kin” prior to disposing of Betty Mazur's body. [F. Supp. 2d 680] Id. Provided that Bucktrout determined the wishes of Betty Mazur's next of kin prior to doing so, it satisfied its statutory duties.

    Section 54.1-2800 provides the definition of “next of kin” for the purposes of § 54.1-2807. Included among a deceased's next of kin are “siblings over eighteen years of age.” Va. Code Ann. § 54.1-2800 (1998).3 Woodson, Betty Mazur's brother, falls within the ambit of this definition. Because Bucktrout and its employee, Erin Warner, disposed of Betty Mazur's corpse in accordance with the “authority and direction[s]” of Woodson, they complied with the statute.

    There is sound policy in having a broadly defined category of “next of kin,” rather than the narrow hierarchy urged upon the court by the plaintiffs. This policy was succinctly articulated in Siver v. Rockingham Mem. Hosp., 48 F. Supp. 2d 608 (W.D. Va. 1999):
 

[T]he instant definition of “next of kin” opens the class concurrently to any individual listed regardless of degree of relationship to the decedent so that there may be an orderly and expeditious internment by the funeral director. That other states establish a sequential hierarchy of relatives analogous to those for distribution of an estate has no relevance here because, in this court's view, the General Assembly of Virginia clearly has elected to fashion a class of individuals with rights to a body that are both broad and coequal. Any person within that class has the right to possess, preserve, or bury the dead body . . . . Id. at 611-12. Because of the clear mandate by the Virginia legislature, plaintiffs' theories, which rely upon pre-statutory common law, must fail.

    Plaintiffs make an alternative argument. They contend that, even assuming the broad language of the Virginia Code applies to this case, § 54.1-2807(B) gave Bucktrout authority to dispose of Betty Mazur's corpse, not the authority to bury her corpse. To support this argument, plaintiffs cite the definition of “practice of funeral services,” contained within § 54.1-2800: “‘Practice of funeral services’ means engaging in the care and disposition of the human dead, the preparation of the human dead for the funeral service, burial or cremation, the making of arrangements for the funeral service . . . .” Because the definition contains the terms “burial” and “disposition,” plaintiffs argue the terms must have different definitions; if they have identical definitions, there would be redundancy in the statute. (Resp. Def.'s Woodson and Bucktrout's Mot. Dismiss at 9.) Based on this reasoning, plaintiffs argue that “disposal,” as used in § 54.1-2807(B), gave Woodson the authority “only to make decisions concerning the administration of the body such as payment for funeral services or receive the body to transfer it to relatives or another funeral home if he didn't like the funeral services [at Bucktrout].” (Id. at 11.) If Woodson did not have the authority to give directions regarding Betty Mazur's burial, then Bucktrout and Erin Warner lacked the authority to bury her body. [F. Supp. 2d 681]

    This argument is disingenuous. A statute must be given its plain meaning. See, e.g., Sentara Beach General Hosp. v. LeBeau, 188 F. Supp. 2d 623, 625 (E.D. Va. 2002) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979)). Giving “disposal of the body,” as used in Virginia Code § 54.1-2807(B), its plain meaning would necessarily include burial. That disposition includes burial is supported by the plain meaning of the word “bury.” Webster's Ninth New Collegiate Dictionary (1985), provides the following definition of the word “bury": “to dispose of by depositing as if in the earth; esp: to inter with funeral services.” Id. at 189.4 In short, disposition indicates a finality that is lacking in plaintiffs' interpretation of the word. See, e.g., Webster's Ninth New Collegiate Dictionary, 365 (1985) (defining “dispose” as “to deal with conclusively”).

    Nothing in the statutory definition of “practice of funeral services” in § 54.1-2800 is contrary to this conclusion, and, in fact, the definition supports this conclusion. The definition itself indicates that the “practice of funeral services” includes “preparation of the human dead for the funeral service, burial, or cremation,” i.e., preparation for disposition, and also includes “disposition of the human dead,” i.e., the subsequent burial or cremation. Va. Code Ann. § 54.1-2800. This definition, then, is consistent with the conclusion that “disposal of the body,” as used in § 54.1-2807(B), includes burial of the body. Thus, the two code sections, given their plain meaning and read together, lead only to the logical conclusion that disposition encompasses burial of the body. Accordingly, the motions to dismiss filed by defendants Bucktrout and Erin Warner are GRANTED.

    To support their cause of action against Woodson, plaintiffs heavily rely upon the holding in Sanford v. Ware, 191 Va. 43, 60 S.E.2d 10 (1950). In that case, the Virginia Supreme Court noted that “the right to bury and preserve the remains is recognized and protected as a quasi-property right.” 191 Va. at 48, 60 S.E.2d 10. The court went on to hold that “an action ex delicto will lie against a wrongdoer for the wrongful invasion of a near-relative's rights with respect to a dead body . . . or for a breach of duty in respect to it.” Id.; see also Awtrey v. Norfolk & W. Ry. Co., 121 Va. 284, 284, 93 S.E. 570, 571 (1917) (“It is well settled that the near relatives of a deceased person have a legal right to the solace of burying the body, and that any interference with that right, whether by mutilation of the body after death, or by withholding it from the relatives, is actionable.”).

    These cases establish the right of near relatives to have a proper burial of their deceased family member. Should a third party interfere with that right by withholding the body or mishandling the body, the family would have a cause of action against that party, including claims for infliction of emotional distress. See Siver, 48 F. Supp. 2d at 608 (denying defendants' 12(b)(6) motion in a suit against hospital and its employees for allegedly failing to refrigerate decedent's body); Sanford, 191 Va. at 43, 60 S.E.2d 10 (widow had cause of action against undertaker who mishandled her husband's corpse); Awtrey, 93 S.E. at 571 (finding for the defendant railroad because the evidence indicated that [F. Supp. 2d 682] after plaintiffs son was killed on defendant's premises, defendant did not “mutilate his body or withhold it from [his mother's] possession”).

    As recognized in Siver, the enactment of Virginia Code § 54.1-2807 indicates the legislature's intent to create a “broad and coequal” class of individuals who have rights to the deceased's body. 48 F. Supp. 2d at 612. Any member of this class would have a cause of action against a third party who interfered with that right:

[E]ach plaintiff falls within the class of “next of kin” articulated by the statutes relating to disposition and burial of a corpse, and, therefore, they had a right to possess, preserve, and bury [decedent's] body. To the extent any and each of them exercised that right, which the complaint so indicates, they may maintain the claims related to the disposition of [decedent's] body that are asserted in their consolidated complaints, including the claims for infliction of emotional distress.

Id. Because each member of the deceased's “next of kin,” as defined by the Virginia Code, has equal rights to “possess, preserve, and bury” a decedent's body, there can be no cause of action among members of that class for withholding a corpse from other members of the class. Woodson, Betty Mazur's brother, is a member of Betty Mazur's “next of kin,”5 and has a quasi-property interest in Betty Mazur's body that is equal to that of the plaintiffs. Therefore, he is not subject to suit from other members of that class for withholding the body from them.

    Plaintiffs also rely on a second argument to support their claim against Woodson, namely that a widow's (or widower's) wishes with regard to the disposition of their deceased spouse should prevail over the wishes of other family members. They cite Goldman v. Mollen, 168 Va. 345, 191 S.E. 627 (1937), in which the court dealt with a suit in equity, brought by the decedent's children. The plaintiffs in Goldman sought to have their father's body disinterred and moved next to the burial site of the decedent's wife (the children's mother). In acknowledging its powers to do so, the court noted in dicta that the wishes of a widow (and by analogy to this case, a widower) should prevail in determining a “decedent's place of burial.” Id. at 354, 191 S.E. 627. The court ultimately denied the plaintiffs' petition because decedent was buried where he wanted to be buried and where his wife had wanted him to be buried. See id. at 355, 191 S.E. 627.6

    While the court recognizes potential tension between Siver and the dicta in Goldman, Goldman simply does not provide support for the plaintiffs' suit at bar. [F. Supp. 2d 683] Goldman was a suit brought in a court of equity, and the language relied upon by the plaintiffs is dicta. In deciding whether to exercise its equitable powers to allow disinterment of a decedent's body, a court may have to consider the wishes of the decedent's widow above those of the other members of the decedent's “next of kin.”7 In this case, Woodson has already signed a consent decree allowing the plaintiffs to disinter Betty Mazur's body and move her remains to New Jersey. Any equitable rights Paul Mazur may have had in this matter have been resolved by the state court and are not before this federal court. Accordingly, defendant Woodson's motion to dismiss is GRANTED.8

    Woodson's Motion for Sanctions, pursuant to Federal Rule of Civil Procedure 11(c), requests that the court impose two forms of sanctions: first, he requests that the court award him attorney's fees and costs; second, he requests that this court impose a pre-filing injunction against plaintiffs that would bar them from a federal suit against him without leave of the court. (Def.'s Brief Support Mot. Sanctions.) For the reasons set forth below, this motion is GRANTED, in part, and DENIED, in part.

    When presenting a motion or a pleading to the court, a party is certifying that “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” —

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . .

Fed. R. Civ. P. 11(b)(1), (2). If the court determines that a party has failed to meet the requirements of Rule 11(b), it may impose sanctions “after notice and a reasonable opportunity to respond.” Fed. R. Civ. P. 11(c). Plaintiffs have had both notice and a reasonable opportunity to respond: Woodson filed a motion for sanctions on December 13, 2001, and plaintiffs responded to the motion on January 11, 2002.9

    To the court's knowledge, this is the third suit filed by the plaintiffs in this federal court, all of them involving an ongoing dispute with regards to Betty Mazur, and each of them naming Woodson as a defendant. See Mazur v. Woodson, No. 4:01cv3 (E.D. Va. July 27, 2001) (dismissing § 1983 challenge to Judge Person's 1994 guardianship order; Woodson was one of the named defendants); Mazur v. Woodson, 932 F. Supp. 144, 148 (E.D. Va. 1996) (addressing claim against Virginia Circuit [F. Supp. 2d 684] Court for a suit in which Woodson was named as a defendant).10 The court is unable to determine how many suits the plaintiffs have initiated in Virginia state courts, but on at least two occasions sanctions were imposed against some of the plaintiffs in the instant suit by a Virginia state court. On June 3, 1997, the Circuit Court of the City of Williamsburg ordered that Woodson be awarded sanctions to be paid by Paul Mazur and Paul Woodson Mazur, joint and severally, in the amount of $175. (Def. Woodson's Mot. Dismiss Ex. B-8.) On December 9, 1999, the same court entered an order of pre-filing injunction against Paul Mazur, Paul Woodson Mazur, Deborah A. Mazur Silva, and Victoria M. Mazur, requiring them to obtain leave of the court before filing any suit in a Virginia state court. (Def. Woodson's Mot. Dismiss Ex. B-13.) There is clearly a pattern of the plaintiffs abusing the state and federal court systems, and in the process harassing Mr. Woodson and costing him unnecessary litigation expenses.

    In the instant case, the court finds that the plaintiffs have violated subsections (b)(1) and (b)(2) of Rule 11. Their claims against Woodson are frivolous, and are not warranted under existing law or by a nonfrivolous argument for a change in the law. Furthermore, the repeated pattern of litigation in which Woodson is named a defendant convinces the court that the plaintiffs' claims are not brought for a proper purpose. The plaintiffs received the equitable relief they sought in state court when Woodson voluntarily signed a consent decree allowing the plaintiffs to move Betty Mazur's body to New Jersey. The plaintiffs have nothing to gain in this matter other than protracted litigation with Woodson and Bucktrout.

    Accordingly, the court GRANTS Woodson's motion for sanctions in the form of a pre-filing injunction against plaintiffs. As the court believes this to be a sufficient sanction to deter future litigation, defendant's request for monetary sanctions is DENIED. However, plaintiffs are put on notice that further litigation in this court regarding the issue in the instant suit and the two other dismissed federal cases, aside from an appeal of this Memorandum Opinion and Final Order, will likely subject them to severe monetary sanctions from this court. See Artco Corp. v. Lynnhaven Dry Storage Marina, Inc., 141 F.3d 1434, 1448 (11th Cir. 1998) (“An improper purpose may be shown by excessive persistence in pursuing a claim or defense in the face of repeated adverse rulings.”).

    For the reasons set forth above, defendant Bucktrout's motion to dismiss is GRANTED. Defendant Erin Warner's motion to dismiss is GRANTED. Defendant Woodson's motion to dismiss is GRANTED, and his motion for sanctions is GRANTED, in part, and DENIED, in part.

    It is ORDERED that plaintiffs Paul Mazur, Paul Woodson Mazur, Deborah A. Mazur Silva, and Walter E. Mazur, jointly and severally, shall each be subject to a pre-filing injunction in the Eastern District of [F. Supp. 2d 685] Virginia. Should the plaintiffs wish to initiate any civil litigation in this court, they must comply with the following requirements: (1) plaintiffs must submit an “Application for Leave to File Suit in Federal Court,” along with a copy of this order imposing the pre-filing injunction, to the Clerk of the Court; and (2) accompanying the “Application for Leave to File Suit in Federal Court,” each plaintiff must attach a separate and notarized declaration or affidavit certifying that the matters raised in the suit have never before been raised or disposed of on the merits in either state or federal court. Should the plaintiffs file an “Application for Leave to File Suit in Federal Court,” the Clerk is DIRECTED to submit the application to the court for consideration. Plaintiffs are cautioned that a violation of the pre-filing order may constitute contempt of court and subject the plaintiffs to civil and criminal penalties.

    Plaintiffs may appeal this Memorandum Opinion and Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court, United States Post Office & Courthouse Building, Post Office Box 494, 101 25th Street, Room 201, Newport News, Virginia 23607. The written notice must be received within thirty (30) days of this Order. See Fed. R.App. P. 4(a).

    The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Final Order to plaintiffs and counsel for defendants.

    IT IS SO ORDERED.

FOOTNOTES

1 The court has serious doubts that the plaintiffs' damages in this suit could conceivably exceed $75,000. Because the defendants do not challenge the subject matter jurisdiction of the court, the court will address the plaintiffs' claims on the merits.

2 Woodson asks the court to take judicial notice that he is Betty Mazur's brother. There is no issue of fact as to whether Woodson is Betty Mazur's brother. At least two prior opinions from this court have recognized that Woodson is Betty Mazur's brother. Mazur v. Woodson, No. 4:01cv3 (E.D. Va. July 27, 2001); Mazur v. Woodson, 932 F. Supp. 144, 148 (E.D. Va. 1996). The Virginia state courts have recognized this fact. (Order Appointing Guardian (Def. Woodson's Mot. Dismiss Ex. 1, ¶ 2.)) Plaintiffs have also conceded as much in this case. (Resp. to Def. Woodson & Bucktrout's Mot. Dismiss at 3 & 13 n. 7 (suggesting Woodson may suffer from the same “mental illness” as his sister Betty Mazur.)) The only arguable assertion to the contrary occurs in one of the plaintiffs' responsive briefs: “Here, the defendant brother-in-law, Woodson, withheld the corpse from the surviving spouse and children of the deceased.” (Resp. to Def. Erin Warner's Mot. Dismiss at 5.) Taken in context, this reference is to Woodson as being Paul Mazur's brother-in-law, which he is.

3 “Next of kin” is defined broadly for the purposes of this chapter:

“Next of kin” means any of the following persons, regardless of the relationship to the decedent: any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825, the legal spouse, child over eighteen years of age, custodial parent, noncustodial parent, siblings over eighteen years of age, guardian of minor child, guardian of minor siblings, maternal grandparents, paternal grandparents, maternal siblings over eighteen years of age and paternal siblings over eighteen years of age, or any other relative in the descending order of blood relationship.

4 In § 54.1-2808.1 (Disposition of cremains), the Virginia Code indicates that disposition also includes the disposing of cremains: “A funeral director may dispose of the cremains of an individual by interment, entombment, inurnment, or by scattering of the cremains . . . .”

5 See supra notes 2 and 3.

6 It is unclear whether the enactment of Virginia

Code § 54.1-2807(B) has abrogated the dicta in Goldman which indicated that a widow's wishes should prevail over other family members with regard to disposition of her deceased spouse. Addressing a petition in equity, the Virginia Supreme Court in Grisso v. Nolen, 262 Va. 688, 554 S.E.2d 91 (2001), cited Goldman and recognized the quasi-property right of a surviving spouse to determine the disposition of a deceased spouse's remains, but held that the right did not “survive the entry of a divorce decree.” 262 Va. at 695, 554 S.E.2d 91. However, the court in Grisso did not indicate whether this quasi-property right was superior to those of other family members. See id. There is no need to resolve this issue in the case at bar because all equitable rights Paul Mazur may have had to disinter Betty Mazur's body have been resolved in state court. See supra at 3; infra at 13. Moreover, the Grisso case was not cited by plaintiffs and dealt with a different issue, i.e., the survival after divorce of an exspouse's quasi-property rights in a deceased former-spouse's body, than the issue before the court in the case at bar.

7 See supra note 6. But see Goldman, 168 Va. at 355, 191 S.E. 627 (“Internments once made should not be disturbed except for good cause.”).

8 As an alternative argument in his motion to dismiss, Woodson contends that the court order appointing him as Betty Mazur's guardian also made him her conservator for purposes of Virginia Code § 37.1-137.5(C). (Def. Woodson's Mot. Dismiss at 8.). He argues that his position as conservator gave him the authority to bury Betty Mazur's corpse. (Id.) Plaintiffs vigorously contest this issue. (Resp. Def. Woodson and Bucktrout Mot. Dismiss at 12-15.) Given the court's holding, there is no need to address this argument.

9 The plaintiffs' response frivolously asks this court to sua sponte impose Rule 11 sanctions against Woodson's attorney for violating the Code of Professional Conduct. (Resp. to Woodson's Rule 11 Motion.) Plaintiffs base this request on the content of Woodson's motion for sanctions. (Id. at 7-9.) This suggestion is absurd and warrants no discussion.

10 Paul Mazur, Paul Woodson Mazur, Victoria M. Mazur, Deborah A. Mazur Silva, and Walter E. Silva were plaintiffs in the § 1983 suit filed in this court. Mazur v. Woodson, No. 4:01cv3 (E.D. Va. July 27, 2001). Paul Mazur, Paul Woodson Mazur, Victoria Mazur, and Walter E. Mazur were plaintiffs in the federal suit transferred to this court in 1996. Mazur v. Woodson, 932 F. Supp. 144, 148 (E.D. Va. 1996). Thus, this is the third federal suit initiated in this court by Paul Mazur, Paul Woodson Mazur, and Walter E. Mazur against defendant Woodson; Deborah A. Mazur Silva was a plaintiff in two of those suits. Each of the federal suits involved Betty Mazur, and each of the suits was dismissed pursuant to Rule 12(b)(6).