In re Disinterment of Swing ( 2014 )

[Cite as In re Disinterment of Swing, 2014-Ohio-5454.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re Disinterment of Jean E. Swing Court of Appeals No. L-14-1036
Trial Court No. 2012 DIS 2324
DECISION AND JUDGMENT
Decided: December 12, 2014
*****
Thomas G. Pletz, for appellants.
Alan Kirshner, for appellee.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} Appellants, John Swing, Sr., and Michael Swing, appeal the judgment of the
Lucas County Court of Common Pleas, Probate Division, granting a Disinterment
Application filed by appellee, Michael Swing, III. We affirm.
A. Facts and Procedural Background
{¶ 2} The underlying facts in this case are undisputed. Thus, the issue is whether
the probate court erred in granting appellee’s application to have the cremains of his
father, John Swing, Jr., disinterred and transferred to him. John Swing, Sr. and Michael
Swing are appellee’s grandfather and uncle, respectively. John Swing, Sr. opposes
appellee’s application in his individual capacity and as executor of the estate of Jean
Swing (Swing Sr.’s wife) and John Swing, Jr. Since appellee is a minor, his application
for disinterment was filed through his mother, Penny Pepper.
{¶ 3} On March 14, 2007, Swing, Jr. died and was subsequently cremated. Swing,
Sr., who paid for the majority of the cremation and funeral services, received a summary
release from administration from the probate court, at which point he took possession of
Swing, Jr.’s only asset, a 1991 Dodge van. Appellee, being a minor at the time, was not
listed as next of kin on the probate documents. Consequently, Swing, Jr.’s cremains were
given to Swing, Sr. and Jean Swing.
{¶ 4} Sometime after his father’s death, appellee attended an event at Swing, Sr.’s
home where he saw a box containing Swing, Jr.’s cremains. Appellee testified that he
requested his father’s cremains at that time. However, Jean told appellee, “your dad’s
going to stay with me, because he’s my baby.”
{¶ 5} On September 22, 2009, Jean passed away. Prior to Jean’s burial, appellee
once again requested Swing, Jr.’s ashes, but his request was denied by Swing, Sr. and
Michael. Instead of allowing appellee to have his father’s ashes, Michael asked a funeral
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home worker to place the ashes inside Jean’s casket. Having no knowledge of the ashes
inside the casket, the cemetery workers proceeded to bury the casket according to normal
procedures. The burial was performed in contravention of cemetery policy requiring a
permit to bury two people in one grave. Further, Swing, Jr. is not listed on Jean’s
headstone.
{¶ 6} Three years after Jean’s burial, appellee engaged in an internet conversation
with his cousin, Mallory (Michael’s daughter), regarding Swing, Jr.’s cremains. He
expressed a desire to have his father close to him so that he could talk to his father.
However, Mallory informed appellee that he would need to visit Jean’s grave because
Swing, Jr.’s cremains were buried there. This was the first time appellee or Pepper had
heard that Swing, Jr.’s cremains were buried alongside Jean’s body.
{¶ 7} Eventually, on October 25, 2012, Pepper filed an application for
disinterment on behalf of appellee. A hearing was held on the application before a
magistrate on October 1, 2013. Appellee, as well as Pepper, Michael, and the cemetery
manager, Jason Bonomo, testified at the hearing. At the conclusion of the hearing, the
magistrate found that appellee, as Swing, Jr.’s sole heir at law, was entitled to the
cremains in 2007. Thus, the magistrate determined that the application should be
granted.
{¶ 8} Appellants filed objections to the magistrate’s decision on October 18, 2013.
However, the probate court overruled appellants’ objections and adopted the magistrate’s
decision. Appellants then moved the court for a new trial, arguing that the magistrate
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failed to properly apply this court’s decision in In re Disinterment of Frobose, 163 Ohio
App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 (6th Dist.). On January 31, 2014, the
probate court denied appellants’ motion for a new trial, stating: “Without specifically
mentioning Frobose, 2005-Ohio-5025, the magistrate’s decision addressed the factors to
allow disinterment in this case.”
B. Assignments of Error
{¶ 9} On February 28, 2014, appellants’ filed their notice of appeal, assigning the
following errors for our review:
ASSIGNMENT OF ERROR NO. 1: The Lucas County Probate
Court below committed reversible error as a matter of law in failing to
follow the equitable disinterment principles enunciated by the Sixth District
Court of Appeals in In re Frobose, 163 Ohio App. 3d 739, 2005-Ohio-5025,
840 N.E.2d 249 (6th Dist.).
ASSIGNMENT OF ERROR NO. 2: The Lucas County Probate
Court below committed reversible error as a matter of law in ignoring the
legal rights of the Appellants to possess John Swing, Jr.’s remains, to which
they were and are now entitled, under the 2006 Ohio “Right to Disposition”
statute, R.C. 2108.81.
{¶ 10} Because these assignments of error are interrelated, we will address them
simultaneously.
4.
II. Analysis
A. Abuse of discretion is the appropriate standard of review.
{¶ 11} Before delving into the merits of the parties’ arguments, we must resolve
their disagreement concerning the appropriate standard of review to be applied in this
case. Appellants contend that this case turns entirely on a question of law. Thus,
appellant asserts, we should apply a de novo standard of review. Appellee, for his part,
argues that the appropriate standard of review is abuse of discretion, since we are
reviewing the probate court’s grant of an application for disinterment.
{¶ 12} This issue has already been addressed in Frobose, supra. In Frobose, we
stated that “[a] probate court’s decision regarding the request for disinterment may not be
reversed absent an abuse of discretion.” Frobose at ¶ 17, citing In re Disinterment of
Ervin, 4th Dist. Scioto No. 96 CA 2466, 1997 WL 156625 (Mar. 31, 1997). Moreover,
we note that R.C. 517.24(3)(a) speaks to the probate court’s discretion in deciding
whether to grant an applicant’s request for disinterment, stating, “the court, in its
discretion, may issue an order for disinterment of the decedent’s remains if good cause
for disinterment is shown.” (Emphasis added). Thus, we reiterate our statement in
Frobose and conclude that the appropriate standard of review for appeals challenging a
probate court’s decision on an application for disinterment is abuse of discretion. An
abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983). When
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applying this standard, a reviewing court may not merely substitute its judgment for that
of the trial court. Frobose at ¶ 17, citing Berk v. Matthews, 53 Ohio St. 3d 161, 169, 559
N.E.2d 1301 (1990).
B. The probate court did not abuse its discretion in
granting appellee’s application for disinterment.
{¶ 13} In their first assignment of error, appellants contend that the probate court
failed to apply the equitable factor-based test that we adopted in Frobose to govern
disinterment requests. Further, in their second assignment of error, appellants argue that
the probate court erroneously failed to apply R.C. 2108.81 in this case.
{¶ 14} We begin by examining appellants’ argument that the probate court failed
to evaluate each factor outlined in Frobose prior to arriving at its decision granting
appellee’s application for disinterment.
{¶ 15} The governing statute in this case, R.C. 517.24(B)(1), provides, in relevant
part:
Any person who is eighteen years of age or older and of sound mind,
including, but not limited to, the person who assumed financial
responsibility for the funeral and burial expenses of the decedent, and who
wishes to obtain a court order for the disinterment of the remains of the
decedent may file an application in the probate court of the county in which
the decedent is buried requesting the court to issue an order for the
disinterment of the remains of the decedent.
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{¶ 16} In determining a request for disinterment, we apply an equity standard,
which involves the consideration and weighing of several factors. Frobose, 163 Ohio
App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 at ¶ 16, citing Spanich v. Reichelderfer,
90 Ohio App. 3d 148, 152, 628 N.E.2d 102 (2d Dist.1993). In Frobose, we set forth the
following non-exhaustive list of factors to be considered:
(1) the degree of relationship that the party seeking reinterment
bears to the decedent, (2) the degree of relationship that the party seeking to
prevent reinterment bears to the decedent, (3) the desire of the decedent, (4)
the conduct of the person seeking reinterment, especially as it may relate to
the circumstances of the original interment, (5) the conduct of the person
seeking to prevent reinterment, (6) the length of time that has elapsed since
the original interment, and (7) the strength of the reasons offered both in
favor of and in opposition to reinterment. Id. at ¶ 16, citing Spanich at
152–155.1
{¶ 17} Appellants state that they “asked the court below several times to apply the
Frobose factors, but the [court] never considered them factor by factor.” Appellee, for
his part, argues that the probate court properly applied the factors in rendering its
decision, albeit without explicitly identifying the facts that were relevant to each
1
These factors were first enunciated in Novelli v. Carroll, 278 Pa.Super. 141, 420 A.2d
469 (1980), a case involving a surviving spouse’s request to remove her deceased
husband from one burial plot in order to reinter him at another cemetery. While this case
involves the disinterment of cremains rather than their “reinterment” as that term is used
in the list of factors, the distinction does not impact our analysis of this case or the
usefulness of the factors to actions involving disinterment.
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individual factor. Upon careful examination of the probate court’s decision, along with
the magistrate’s decision upon which the court’s decision was based, we cannot say that
the court abused its discretion in granting appellee’s disinterment application.
{¶ 18} As to the first factor, the applicant’s relationship to the decedent, we note
that appellee is Swing, Jr.’s sole child. This fact was not lost on the probate court.
Indeed, the magistrate’s decision indicates: “John Swing, Jr. died leaving a sole heir and
next of kin for inheritance purposes: his son, John Swing, III.” The decision makes
several mentions of the fact that appellee is Swing, Jr.’s only son and concludes that, as
such, appellants “should not have withheld the ashes deliberately from [appellee] though
he asked for them more than once, and at different times or circumstances.” The probate
court’s decision echoes this sentiment, stating that appellee, “the sole heir, asked for his
father’s ashes on more than one occasion, and was denied them, even at his
grandmother’s funeral.” In light of the numerous references to appellee as “the sole heir”
and Swing, Jr.’s only son, we find that the probate court properly considered the first
factor.
{¶ 19} Next, we turn to the second factor, the objecting party’s relationship to the
decedent. Once again, the magistrate’s decision accurately sets forth Swing, Jr.’s
relationship to each of the appellants. However, the probate court chose to place more
weight on appellee’s relationship to Swing Jr. This decision is supported by the record at
least insofar as Michael is concerned, because testimony elicited at the hearing reveals
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that Michael had very little, if any, contact with Swing, Jr. for the five years preceding
Swing, Jr.’s death. In any event, it is clear that the second factor was considered by the
probate court.
{¶ 20} Concerning the third factor, the desire of the decedent, the probate court
adopted the magistrate’s finding that “there was no credible basis for [Michael’s]
assertion that his brother had told him what he wanted done with his ashes.” (Emphasis
sic.) Further, the magistrate’s decision states: “The only ‘ascertainable desire’ logically
is that John Swing, Jr. would have wanted to leave his ashes to his only son, [appellee],
whom he loved.” Thus, we find that the probate court considered the evidence that was
presented relevant to the third factor.
{¶ 21} The fourth factor, the applicant’s conduct, was also considered by the
probate court. In its decision, the probate court pointed out the fact that appellee asked
appellants for his father’s cremains on numerous occasions, but his requests were denied.
Moreover, appellee was never told where Swing, Jr.’s cremains were placed after Jean’s
funeral. Instead, he learned that the cremains were buried inside Jean’s casket via a
Facebook conversation with Mallory. Upon learning of the whereabouts of his father’s
cremains, appellee relayed the information to Pepper. In light of the foregoing, we
conclude the court properly considered the fourth factor.
{¶ 22} Likewise, the probate court considered the fifth factor, the conduct of the
persons seeking to prevent disinterment. Relevant to this factor, the court found that Jean
wrongfully possessed Swing, Jr.’s cremains and refused to give them to appellee upon
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request, despite his status as Swing, Jr.’s sole heir. Further, the court considered
evidence presented at the hearing that Michael ordered Swing, Jr.’s cremains placed in
Jean’s casket in violation of cemetery policy concerning double burials. Michael at first
attempted to deny any involvement in placing the cremains inside the casket, but later
admitted that he asked funeral home officials to do so. In light of this evidence, it is clear
that the court considered the fifth factor in arriving at its decision.
{¶ 23} Under the sixth factor, the probate court is directed to consider the length
of time that has elapsed since the original interment. Here, several years had elapsed
from the time Swing, Jr.’s cremains were placed in Jean’s casket and buried until Pepper
filed the application for disinterment. Appellants contend that Pepper, as applicant for
appellee, “slept on her rights” by waiting so long to file the application. However, the
probate court considered this argument, ultimately concluding that information
concerning the location of Swing, Jr.’s cremains was withheld from appellee until
“several years” after Jean’s burial. Notably, this action was filed three years after Jean’s
burial. Thus, any passage of time between the internment of Swing, Jr.’s cremains and
the filing of this action is attributable to appellants’ failure to inform appellee of their
actions regarding his father’s cremains. We find that the probate court considered the
sixth factor.
{¶ 24} Finally, the seventh factor focuses on the reasons offered both in favor of
and in opposition to disinterment. At the hearing, Michael indicated that he objected to
the disinterment because “it’s not what [Swing, Jr.] wanted, or my mother, Jean Swing,
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wanted.” However, it became clear as Michael’s testimony continued that he had not
spoken to Swing, Jr. for five years, thus calling into question his ability to know what
Swing, Jr. wanted. Michael also objected to the disinterment on the basis that the “ashes
are already buried. It’s ridiculous.”2 As to appellee’s reasons, the probate court was
sensitive to the fact that appellee appeared to want to “recover all that he has left of his
dad: his ashes.” Clearly, the probate court considered the evidence bearing upon the
seventh factor.
{¶ 25} In light of the foregoing, we find that the probate court properly considered
the evidence as it related to each of the seven factors set forth in Frobose. Having
considered the factors ourselves, we cannot say that the probate court’s decision to grant
appellee’s application was unreasonable, arbitrary, or unconscionable. Accordingly,
appellants’ first assignment of error is not well-taken.
{¶ 26} Next, we turn to appellants’ argument concerning the applicability of R.C.
2108.81. R.C. 2108.81 lists those individuals entitled to dispose of a decedent’s remains
following death where the decedent has not himself assigned the right of disposition to
someone prior to death using a written declaration under R.C. 2108.70 to 2108.73. R.C.
2108.81(B) assigns the right of disposition in order of priority, as follows:
2
Throughout their appellate brief, appellants argue that the application should be denied
because appellee has no right to disinter Jean’s remains in an effort to secure Swing, Jr.’s
cremains. We are unpersuaded that the probate court’s decision should be reversed on
this basis, however, because disinterment of Swing, Jr.’s cremains would not require
raising Jean’s casket if Michael would not have insisted that the two be buried together in
the first place.
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(B) Subject to division (A) of this section and sections 2108.75 and
2108.79 of the Revised Code, the right of disposition is assigned to the
following persons, if mentally competent adults who can be located with
reasonable effort, in the order of priority stated:
(1) The deceased person’s surviving spouse;
(2) The sole surviving child of the deceased person or, if there is
more than one surviving child, all of the surviving children, collectively;
(3) The deceased person’s surviving parent or parents;
* * *.
{¶ 27} “The ‘right of disposition’ refers to the right to direct the disposition of a
deceased person’s body, to make and purchase funeral arrangements, and to make
arrangements for burial, cremation, or other manner of final disposition of the body.”
Federman v. Christ Hosp., 1st Dist. Hamilton No. C-120484, 2013-Ohio-5507, ¶ 2, citing
R.C. 2108.70(A)(4).
{¶ 28} Here, appellants argue that, under R.C. 2108.81, Swing, Sr. and Jean, as
Swing, Jr.’s surviving parents, were vested with a right of disposition over Swing, Jr.’s
cremains. They note that although appellee is Swing, Jr.’s sole surviving child, he is not
entitled to the right of disposition because he is not a “mentally competent adult.”
Moreover, appellants contend that the right of disposition encompasses the decision to
place Swing, Jr.’s cremains inside Jean’s casket prior to burial, a decision that cannot
now be undone through a request for disinterment under R.C. 517.23.
12.
{¶ 29} Appellee, for his part, acknowledges that Jean and Swing, Sr. were entitled
to dispose of Swing, Jr.’s body after his death under R.C. 2108.81. However, appellee
argues that R.C. 2108.81 is inapplicable to this proceeding because the right was
exercised when Jean and Swing, Sr. decided to cremate Swing, Jr. Appellee contends
that the right of disposition was extinguished at that moment, and suggests that any other
interpretation of the statute would involve expanding the right of disposition into a right
of perpetual redisposition. Further, appellee asserts that disinterment would not encroach
upon the surviving parents’ right of disposition, because it was Michael who placed the
cremains into the casket, not Jean or Swing, Sr.
{¶ 30} Whether a person’s right of disposition under R.C. 2108.81 precludes a
probate court from granting a third party’s application for disinterment under R.C. 517.23
appears to be a matter of first impression in Ohio. However, our decision in Frobose is
helpful in resolving this question. In Frobose, a case that predates the enactment of R.C.
2108.81, we concluded that a surviving spouse’s right of disposition with regard to burial
of her husband did not automatically entitle her to have her husband’s remains
disinterred. Specifically, we stated that a surviving spouse’s right of disposition, for
purposes of burial, “is not absolute, but is subject to judicial control.” Frobose, 163 Ohio
App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 at ¶ 15. We went on to examine the
merits of the surviving spouse’s request for disinterment through the use of several
equitable factors. Ultimately, we found that the probate court did not abuse its discretion
when it denied the surviving spouse’s application for disinterment. Id. at ¶ 26.
13.
{¶ 31} In light of our statements in Frobose, we conclude that the right of
disposition under R.C. 2108.81 does not preclude a probate court from granting an
application for disinterment where the equities weigh in favor of doing so. While we
recognize that our decision in Frobose did not involve an examination of a right of
disposition under R.C. 2108.81 (which had not yet been enacted), we are not persuaded
that R.C. 2108.81 nullifies the equitable standard embodied in the decision. Accordingly,
appellants’ second assignment of error is not well-taken.
III. Conclusion
{¶ 32} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas, Probate Division, is affirmed. Appellants are ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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