Welch v. Faulkner

          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, 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.

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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 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 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

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families. The testimony of Valerie Jacoby, Shannon’s sister, was similar to her ...