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Welch v. Faulkner

Court of Appeals of Arkansas, Division II

April 10, 2019

JIM AND DEBBIE WELCH APPELLANTS
v.
CYNTHIA FAULKNER, ADMINISTRATOR OF THE ESTATE OF BOBBY RAY FAULKNER, DECEASED APPELLEE

          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 ...


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