APPEAL
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[66GCV-18-87] HONORABLE J. MICHAEL FITZHUGH, JUDGE
Brett
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
appellants.
Walters, Gaston, Allison & Parker, by: Troy Gaston, for
appellee.
ROBERT
J. GLADWIN, JUDGE
Our
issue is whether the Sebastian County Circuit Court erred in
denying a petition for exhumation. We hold that it erred, and
we reverse and remand this matter to the circuit court to
enter an order allowing exhumation.
On July
27, 2017, Shannon and Bobby Faulkner were killed in an
airplane crash; Bobby was piloting the plane.[1] Appellants Debbie
and Jim Welch, Shannon's parents, agreed with appellee
Cynthia Faulkner, Bobby's mother and administratrix of
his estate, to allow Shannon to be buried next to
Cynthia's parents in Old Jenny Lind Cemetery, on the
condition they (Jim and Debbie) could be buried next to
Shannon. It was Bobby's desire to be cremated and to have
no funeral service. Cynthia did have him cremated, but a
joint funeral service was also held for Shannon and Bobby,
and his cremains were placed within Shannon's casket.
The
relationship between the Welches and Cynthia thereafter
quickly became acrimonious. While Cynthia agreed to convey
two plots to the Welches to accommodate their request to be
buried next to Shannon, the conveyance did not occur in a
timely manner.[2] Also, preliminary reports indicated the
crash was due to pilot error, and the Welches then pursued
and resolved a wrongful-death claim against Bobby's
estate. The parties filed counterpetitions against one
another in the circuit court disputing property ownership in
both estates. Additionally, Cynthia, without consulting the
Welches, placed a footstone on the grave that read "Fly
High," and the Welches strongly disapproved because of
the manner in which Shannon and Bobby had died.
In
March 2018, the Welches filed a petition in the circuit court
requesting permission to exhume Shannon's body and
reinter her remains at a burial site with greater
accompanying burial plots. The petition noted Bobby's
cremains were in Shannon's casket, and it expressed their
desire to have his cremains reinterred in the same burial
location at which his cremains were currently placed. Cynthia
opposed exhumation because Shannon's body and Bobby's
cremains were buried together by mutual agreement, and she
believed Shannon and Bobby would have wanted to be buried
together. However, Cynthia requested in her response to the
petition to exhume that if the circuit court determined the
Welches' request should be granted, she be given at least
three days' advance notice of the date and time of
exhumation so she or a representative could be present to
ensure that Bobby's ashes were removed from the casket
and placed within a container to be replaced in the existing
gravesite.
At the
hearing, Debbie testified that Shannon did not have a written
declaration regarding her final disposition; it was family
knowledge that the entire the family wished to be buried
together; and she and Jim had purchased six burial plots
close to their home to accommodate those
wishes.[3] She stated she and Jim would pay all
disinterment expenses and the expense to reinter Bobby's
ashes. She explained that even if Cynthia deeded the burial
plots in Old Jenny Lind Cemetery to them, they would still
want to move Shannon because there was such animosity between
the families that the Welches did not visit the cemetery for
fear of encountering Cynthia. Debbie acknowledged Shannon and
Bobby had a loving relationship, and she and Jim had agreed
to bury them together. She stated she would not agree they
would have wanted to be buried together, this being a
decision made by her, Jim, and Cynthia in a distressing and
vulnerable time.
Jim
testified that when he and Debbie agreed for Shannon and
Bobby to be buried together, they had everyone's
interests at heart, but events did not occur as intended. He
was particularly disturbed by the "Fly High"
footstone Cynthia placed at the gravesite. He reiterated the
hostile feelings that had arisen between the two families.
The testimony of Valerie Jacoby, Shannon's sister, was
similar to her parents' testimony.
Cynthia
testified that while Bobby has a fourteen-year-old son,
Joshua, from a previous relationship, Bobby and Shannon did
not have any children together, and Shannon did not have any
children from previous relationships. Cynthia testified she
and the Welches mutually agreed to a joint funeral and for
Bobby's cremains to be placed in Shannon's casket.
According to Cynthia, there was discussion about her
transferring two adjacent burial sites to the Welches, but
she claimed Debbie asked for more than two plots. She
testified she had executed a deed to transfer two plots and
was still willing to provide two plots, but not four. Cynthia
objected to the grave's being disturbed after almost a
year and wanted the court to honor the agreement between her
and the Welches. She acknowledged she had not carried out
Bobby's final wishes; rather, she had made different
arrangements due to the manner in which Bobby and Shannon
died. She also admitted she did not consult with the Welches
before placing the footstone, recalling it did not cross her
mind the footstone might be offensive, as it referred to
flying high with God and had nothing to do with airplanes.
Joshua,
Bobby's minor son, testified his father and Shannon loved
each other very much. It was his desire to keep his father
and Shannon together so he could visit both of them, and in
his opinion, they would want to be together.
Debbie, recalled as a witness, denied she had asked for more
than two burial plots. She stated she had never been notified
Cynthia had conveyed the two plots and was just learning of
the conveyance at the hearing.
The
circuit court, acknowledging the matter to be a sad and
regrettable situation that was probably irreconcilable at
this point, denied the Welches' petition for exhumation.
In its order, the circuit court found the following: children
and parents were involved in the situation; the court did not
believe Bobby had any intent to cause the accident; by mutual
agreement, Bobby's cremains were placed in Shannon's
casket and the two were buried together; Bobby's child
did not want the gravesite disturbed; although the desires of
the deceased were not known for certain, the families agreed
to bury the two together; Cynthia had recently executed a
deed to transfer two plots next to Shannon to the Welches;
the petition for exhumation was not filed until months after
the burial; and the reason the Welches wanted to disinter
Shannon was to place her in a larger burial-plot site so the
family could be buried together, but there was at least ...