In re Disinterment of Swing
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 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
{¶ 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 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.
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
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
{¶ 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,
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.
{¶ 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
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
{¶ 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 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 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
{¶ 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, 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
(B) Subject to division (A) of this section and sections
2108.75 and2108.79 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
{¶ 28} Here, appellants argue that, under
{¶ 29} Appellee, for his part, acknowledges that Jean and Swing, Sr. were entitled to dispose of Swing, Jr.’s body after his death under
{¶ 30} Whether a person’s right of disposition under
{¶ 31} In light of our statements in Frobose, we conclude that the right of disposition under
III. Conclusion
{¶ 32} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed.
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.
JUDGE
Stephen A. Yarbrough, P.J.
JUDGE
CONCUR.
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.