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, Greenwood, by: Troy Gaston, for
appellee.
OPINION
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, Shannons parents, agreed with appellee
Cynthia Faulkner, Bobbys mother and administratrix of his
estate, to allow Shannon to be buried next to Cynthias
parents in Old Jenny Lind Cemetery, on the condition they
(Jim and Debbie) could be buried next to Shannon.
Page 449
It was Bobbys 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 Shannons 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 Bobbys
estate. The parties filed counter petitions 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 Shannons body and reinter
her remains at a burial site with greater accompanying burial
plots. The petition noted Bobbys cremains were in Shannons
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
Shannons body and Bobbys 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 Bobbys 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 Bobbys
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 everyones 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
Page 450
families. The testimony of Valerie Jacoby, Shannons sister,
was similar to her ...