In re body of Victoria SPIERS Age 10, Deceased.
Carmen D. Hastings
v.
Joel Scott Spiers.
Supreme Court of Mississippi.
*1126 Edwin Woods, Jr., attorney for appellant.
James M. Priest, Jr., Jackson, attorney for appellee.
EN BANC.
LAMAR, Justice, for the Court.
¶ 1. This case comes before the Court on appeal from the Circuit Court of Adams County. Carmen Hastings petitioned the circuit court to have the body of her daughter, Victoria ("Tori") Spiers, disinterred so that she could be buried in Wichita Falls, Texas, where Tori had lived with Hastings. Joel Spiers, Tori's natural father, objected. The circuit court denied Hastings's petition, and Hastings' appealed to this Court.
FACTS AND COURSE OF PROCEEDINGS
¶ 2. Victoria Spiers was born January 4, 1995, in Wichita Falls, Texas. Around five months after Tori's birth, Tori's father, Joel Spiers, contacted Carmen Hastings, Tori's mother, to let her know that he wanted to be a part of Tori's life.[1] Shortly thereafter, Hastings met Spiers in Texas with Tori for a visit. After the meeting, Hastings returned to Oklahoma with Tori, and Spiers returned home to Mississippi.[2]
¶ 3. Spiers next contacted Hastings in September 1995, to let Hastings know that Spiers's parents wanted to meet Tori. The Spiers family sent Hastings round-trip tickets to Mississippi so that Hastings and Tori could come for a visit. Hastings came to Mississippi for six weeks so that the Spiers family could meet and spend time with Tori. Hastings and Tori stayed *1127 with Hastings's brother in McComb during the visit.
¶ 4. About a week before Hastings was scheduled to return home from Mississippi, Vickie Spiers, Joel Spiers's mother, informed Hastings that the Spiers family would be suing Hastings for custody of Tori. During her last week in Mississippi, Hastings did not allow the Spiers family to see Tori, but allowed her own family to spend more time with Tori instead. Hastings then returned to Wichita Falls with Tori.
¶ 5. In 1997, Spiers and Hastings were named Tori's "joint managing conservators" in Texas. The Texas court's order made Hastings Tori's primary custodial parent, giving her the exclusive right to establish legal residence for Tori. From 1997 until 2000, the Spiers family traveled to Wichita falls for visits with Tori. As Tori got older, the Spiers family would sometimes take Tori for extended visits over her spring break, summer vacation, and Christmas break.
¶ 6. In July 2005, Tori traveled to Mississippi for one of her extended visits. One of Hastings's neighbors in Wichita Falls, Bennie, was a pilot and part owner of a private plane. He agreed to fly Hastings to Natchez, Mississippi, on July 30 to pick up Tori. Bennie was also the grandfather of one of Tori's best friends, Jessie, who accompanied Bennie and Hastings on the flight. Bennie, Hastings, and Jessie reached Natchez, where Tori was waiting for them. The four boarded the plane to return to Wichita Falls, and shortly after takeoff, the plane crashed. Hastings was the only survivor of the crash. Tori was ten years old.
¶ 7. As a result of a dispute between Spiers and Tori's stepfather, Adams County Coroner James Lee sought authorization and directives from the Circuit Court of Adams County as to the release of Tori's remains. On August 1, the trial court issued an order directing Lee to release Tori's remains to Spiers. The order stated in part:
[Tori's] natural mother, one Carmen Hastings, was severely injured in said airplane crash and is presently in critical condition at the University of Mississippi Medical Center in Jackson, Mississippi, and is wholly unable at this time due to her severe injuries and resulting physical and mental condition, to make any decisions as to interment of her daughter's body.
The order went on to say, "[t]his order is further subject to any further or future court proceedings, in the event that the child's natural mother, Carmen Hastings, makes sufficient medical recovery, and desires to seek further legal determination of said child's final resting place."
¶ 8. On the date that Tori's funeral and burial were scheduled in Mississippi, Hastings petitioned the circuit court seeking an order to prevent Tori's remains from being buried in Mississippi. Attached to Hastings's petition was her statement, signed and witnessed, that "despite her physical condition," she was "able to make appropriate decisions and would like [Tori] buried in Texas." A telephonic hearing was held, and the trial court denied Hastings's petition. Tori's funeral proceeded as planned, and her remains were buried at the Bethel Baptist Church Cemetery in Liberty, Mississippi.
¶ 9. On December 23, 2005, Hastings filed an amended petition with the trial court, asking that Tori's remains be disinterred and transported to Wichita Falls for burial. The trial court held a hearing on the petition on March 6, 2006, and on that same day, entered an order denying Hastings's request. Hastings appeals the trial court's decision to this Court.
*1128 ANALYSIS
¶ 10. This case deals with the most delicate of subject matters. "[A] court of equity can best determine the rights of relatives and friends respecting the care and control of the remains of their dead and decide upon each set of circumstances what is the proper course of action." Hood v. Spratt,
¶ 11. The subject matter of this case first arose as a dispute between Spiers and Brian Hastings, Tori's stepfather and Carmen Hastings's husband. The Adams County coroner sought guidance on the matter from the circuit court, and the circuit court ordered the coroner to release Tori's remains to Spiers. Tori's body was buried in Mississippi over Hastings's objections. After recuperating from her injuries, Hastings filed the amended petition seeking to have Tori's remains disinterred and moved to Texas. On appeal, we deal with the trial court's denial of Hastings's amended petition, not the original decision of whether Tori should have been buried in Mississippi or Texas.
¶ 12. In Hood, this Court adopted the "more compassionate approach" to situations such as these, allowing the removal and reinterment of a body when "compelling reasons" are presented for doing so. Hood,
The first rule was that the surviving spouse had the paramount right to designate the burial site and, if the parties were living in normal marital relations, a very strong case would be required to justify judicial interference with the survivor's wish. Secondly, in the absence of a surviving spouse, the right of selection of a burial site was in the next of kin in order of their relation to the decedent, and the rights of more distant kin might be modified by circumstances of special intimacy or association with the decedent. Thirdly, to what extent the desires of the decedent as to place of burial should prevail against those of the surviving spouse was left an open question, but as against the remoter connections, such wishes, especially if strongly and recently expressed, would usually prevail.
Hood,
¶ 13. For obvious reasons, most of the cases on the subject of disinterment of human remains, such as Hood and Pettigrew, *1129 involve a surviving spouse. "[I]n the absence of a surviving spouse, the right of selection of a burial site was in the next of kin in order of their relation to the decedent...." Hood,
¶ 14. While the trial court found in its written order that "public interest is in not disturbing a grave and against removing a body once it is buried," the trial court found in its bench ruling that public interest was not a factor in this case. Not surprisingly, given her young age, there was no evidence as to Tori's wishes on where she would be buried. There was no evidence that the rights and principles of any religious bodies or other organizations would be affected in this matter. It is also eminently clear that Hastings, Tori's primary custodial parent, did not consent to Tori's burial in Mississippi. Finally, the Court considered the fifth factor, the rights and feelings of those entitled to be heard by reason of relationship.
¶ 15. Only one voice was heard at the hearing on this case, that of Carmen Hastings. Spiers was not present at the hearing, but he was represented by counsel. The majority of Hastings's testimony described Tori's connection to Wichita Falls, Texas. That testimony is undisputed. Tori was born in Wichita Falls and spent her entire life there. She attended the same school in Wichita Falls from kindergarten through fourth grade, and but for her tragic accident, would have entered the fifth grade at that same school in the fall of 2005. Tori was very active in extracurricular activities at her school, including organizing fund raisers and playing on the volleyball team. She was a popular little girl who loved to spend time with her family and her many friends in Wichita Falls.
¶ 16. Some of Hastings's testimony also addressed Tori's connection to Spiers. During the early part of Tori's life, Spiers did not spend much time with Tori. While Spiers's parents, Vickie and Jimmy, put forth great effort to visit Tori in Texas, Spiers himself did not visit often. As Tori got older and was able to stay away from home for longer periods of time, she would visit the Spiers family in Mississippi. She eventually began spending around six weeks out of every summer with the Spiers family. Most often, Tori would spend those six weeks with the Spiers family on trips to the mountains in Tennessee. Hastings admitted that Tori loved the Spiers family, including her father, and really enjoyed and looked forward to the time that she spent with them during the summers.
¶ 17. At the end of her direct testimony, Hastings made a plea to the court saying, "I want my daughter home." She continued by saying that "[h]er friends, her family, everything about Tori is in Wichita Falls." As Hastings was in the hospital at the time of Tori's funeral, she stated, "I didn't get to pick what she was wearing. I didn't get to make those decisions that I should have gotten to make. When it came down to it, I didn't get to make the decision where she was laid to rest. I need herI need her home."
¶ 18. In its written order, the trial court recognized that "had [Hastings] not been severely injured in the airplane crash herself and fighting for her own life at the time of the arrangements for her daughter's burial, she would have surely had her daughter buried in Wichita Falls, Texas." Though Hastings was severely injured, she still protested Tori's Mississippi burial. *1130 The trial record shows that, after seven and a half hours of reconstructive surgery on her face, a very swollen Hastings managed to hold one eye open so that she could read, sign, and write her social security number on a statement averring that she was competent to make a decision as to Tori's burial and that she wanted her buried in Wichita Falls, Texas.
¶ 19. The trial court admitted several times that the only reason Tori was not buried in Wichita Falls was that her mother was injured. In fact, the trial court did not make any finding at all under the Hood factors that would justify denying Hastings's request. The court said only that "[i]t is fully understandable that Mrs. Hastings would want her child buried close to her home, family and friends. However, that desire and the comfort and convenience that would bring to Mrs. Hastings and those who dearly loved Tori in Texas does not amount to a compelling reason to grant the relief requested." We disagree.
¶ 20. Mississippi has no precedent directly on point, but it is not unprecedented to allow disinterment of a body so that those closest in kinship to the deceased can more easily visit the grave. See Mallen v. Mallen,
¶ 21. In Hood, this Court made clear that Mississippi adopted "no rigid rule for either permitting or refusing removal of a body once interred." Hood,
CONCLUSION
¶ 22. Given the facts of this case and the record before this Court, we cannot find substantial credible evidence to support the trial court's ruling. Therefore, the trial court's denial of Hastings's petition to disinter Tori's remains and move them to Texas is reversed.
¶ 23. REVERSED AND RENDERED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND *1131 RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.
NOTES
Notes
[1] Hastings and Spiers were never married. At the time of Tori's birth, Hastings resided in Oklahoma, and Spiers resided in Mississippi.
[2] Hastings testified that she was living temporarily in Oklahoma, but she moved permanently to Wichita Falls later in 1995.
[3] While cases such as this would properly be brought in chancery court, this case originated from the Adams County coroner's petition in the Circuit Court of Adams County. Therefore, the circuit court sat as a court of equity in this matter. Tyson Breeders, Inc. v. Harrison,