2014 Ohio 5454
Ohio Ct. App.2014Background
- Appellee Michael Swing III seeks disinterment of his father John Swing Jr.’s cremains from Jean Swing’s grave with a court order under R.C. 517.24; Swing Sr. and Jean Swing oppose.
- Swing Jr. died in 2007 and was cremated; Swing Sr. received administration relief and the cremains, including the only asset, a 1991 Dodge van.
- Appellee, a minor, was not listed as next of kin on probate documents, and the cremains were given to Swing Sr. and Jean Swing.
- In 2009, after repeated requests were denied, Michael allegedly had the ashes placed in Jean’s casket by request of a funeral home worker, resulting in a double burial in one grave.
- Jean died in 2009; Swing Sr. later kept Swing Jr.’s cremains and the cremains were buried with Jean, contrary to cemetery policy.
- Pepper (appellee’s mother) filed the disinterment application in 2012; the magistrate granted it, and the probate court adopted that decision over objections, with a post-decision motion for a new trial denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the probate court properly applied the Frobose equity factors | Swing argues the court failed to apply factors factor-by-factor | Swing contends factors were considered implicitly in the decision | No abuse of discretion; factors weighed adequately |
| Whether R.C. 2108.81’s right of disposition precludes disinterment | Swing asserts the right of disposition applies to deny disinterment | Swing argues disposition right survives cremation and does not preclude disinterment | Right of disposition does not preclude disinterment where equities weigh in favor |
Key Cases Cited
- Frobose, In re Disinterment, 163 Ohio App.3d 739 (6th Dist. 2005) (establishes the equity-based seven-factor test for disinterment decisions)
- Spanich v. Reichelderfer, 90 Ohio App.3d 148 (2d Dist. 1993) (non-exhaustive factors for disinterment considerations)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard; limits on substituting own judgment)
- Berk v. Matthews, 53 Ohio St.3d 161 (1990) (abuse of discretion framework in appellate review)
- R.C. 517.24, (statute cited in opinion) () (gives probate court discretion to grant disinterment for good cause)