Pamela J. Fisher, Administrator v. Pinecrest Memorial Cemetery et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

PAMELA J. FISHER, ADMINISTRATOR OF THE ESTATE OF JOSEPH TUCKER FISHER, DECEASED, AND NEXT FRIEND OF BROOKE SUZANNE FISHER and BRITTA JO FISHER, MINORS

APPELLANTS

V.

PINECREST MEMORIAL CEMETERY, ALTHEA FISHER JAMES, JOSEPH E. FISHER, and DOROTHY FISHER

APPELLEES

CA01-418

January 9, 2002

APPEAL FROM THE PERRY COUNTY CHANCERY COURT

P95-6, E00-15

HON. HOBSON VANN SMITH, JUDGE

AFFIRMED

This is an appeal from a decision of the Perry County Chancery Court denying appellants' request to exhume their father's remains and relocate them to a different burial place. The trial court denied the petition finding that the right to bury the decedent's body vested in the appellees at the time of death because appellants were minors. We affirm.

Appellants, Brooke Suzanne Fisher and Britta Jo Fisher, are the minor children of Joseph Tucker Fisher, deceased, who was a Little Rock Police officer killed in the line of duty on February 7, 1995. At the time of his death, appellants were ages ten and six. They lived with their mother Pamela J. Fisher,1 who filed the petition below as the administrator of the decedent's estate and as next friend of her children.

After the decedent's death, an autopsy was performed and the body was released to the decedent's mother, Althea Fisher James, and sister, Dorothy Fisher. Decedent's mother and sister,without consulting appellants, purchased a cemetery plot at the Pinecrest Memorial Cemetery in Saline County. The children requested that their father be buried at Oak Grove Cemetery in Perry County, which is close to their home; their request was denied.

On April 25, 1997, appellants filed a petition in Perry County Probate Court2 against Pinecrest Memorial Cemetery, alleging that the burial at Pinecrest Cemetery was against their wishes and was made without their consultation and requesting that their father be exhumed and buried at Oak Grove Cemetery. An amended petition was filed December 3, 1997, and a third amended petition adding Althea Fisher James, Joseph E. Fisher (the decedent's father), and Dorothy Fisher as defendants was filed July 5, 2000, further alleging that under the laws of descent and distribution the decedent's body belongs to his minor children.

Pinecrest Cemetery, Althea Fisher James, and Dorothy Fisher filed motions to dismiss appellants' petition; the trial court did not rule on the motions. Joseph E. Fisher never made an entry of appearance. A hearing was held on August 23, 2000, wherein counsel for the attending parties presented arguments. At the conclusion of the hearing, the trial court asked whether any party wished to present testimony that day or whether they wanted to resolve the legal issues first. Appellants indicated that they wanted to resolve the legal issues, agreeing with the court that a resolution of the legal issues would "probably resolve most of the case." The chancery court denied appellants' petition in an order filed September 14, 2000, finding that "the remains of Joseph Tucker Fisher should remain in Pine Crest Memorial Cemetery, pursuant to the original burial decision made by decedent's next of kin in 1995." The trial court, citing Neff v. St. Paul Fire and Marine Ins. Co., 304 Ark. 18, 21, 799 S.W.2d 795, 796 (1990), stated that the quasi-property right in adecedent's remains belongs to "a surviving spouse, then to the next of kin in the order of their relationship to the decedent -- children of a proper age, parents, brothers and sisters . . . ." The trial court concluded:

9. In the facts presently before the Court, the decedent and his ex-wife were divorced at his death. Therefore, there was no surviving spouse. The quasi-property right in the remains then travels through the lines of descent to the next of kin, "children of a proper age, parents, brothers and sisters . . . ." Decedent's two daughters were not at the time of his death and burial "of a proper age." Each of the two children were [sic] well below the age of majority, and as such were [was] unable to assume the responsibilities of the burial of their parent.

10. The property right in the decedent's remains then passed to the parents. The parents of decedent properly exercised their right to the burial of their son.

11. The Arkansas Supreme Court stated in [Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942)] that:

in the case of a body needing burial, the right of the spouse must be promptly asserted, or the right to possession of the body for purposes of internment will be held to have been waived in favor of the next of kin.

12. The children were the first in line for the right to burial of their father, but they were at that time, and still are, minors. Therefore, their right to the body "for the purposes of internment will be held to have been waived in favor of the next of kin." Id.

13. The right to the remains vested in the [appellees] at the time of burial, and will not now be divested in favor of the [appellants]. This right to possession and burial carries with it the additional right "to prevent the corpse from disturbances after burial." [Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999)].

Appellants contend that the chancellor erred in denying their petition to reinter the body of their father in a cemetery in Perry County, Arkansas. "On appeal, a chancellor's conclusion of law is not given any deference; our review is de novo." Houston v. Houston, 67 Ark. App. 286, 287, 999 S.W.2d 204, 205 (1999). The facts in this case were not in dispute and the chancellor's ruling was solely on a matter of law. Based on our de novo review, we cannot say that the trial court's decision is contrary to the law. Oliver v. Oliver, 70 Ark. App. 403, 19 S.W.3d 630 (2000).

In Neff, supra, the Arkansas Supreme Court addressed the issue of the right to possession of a corpse or control of a burial. It stated:

We find no statute dealing with the right to possession of a corpse or control of a burial. Under relevant case law it usually belongs to a surviving spouse, then to the next of kin in the order of their relationship to the decedent-children of proper age, parents, brothers and sisters, and so forth. 22A Am. Jur. 2d Dead Bodies 25 (1988). Our holding in Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942), is in accord.

More recently in The Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999), the supreme court affirmed this statement, recognizing that a quasi-property right in dead bodies vests in the nearest relatives of the deceased, arising out of their duty to bury their dead. (Citing 22A Am. Jur.2d Dead Bodies § 3 (1988) and Neff, supra.) "This right corresponds in extent to the duty from which it arises, and may include rights to possession and custody of the body for burial, to prevent the corpse from disturbances after burial, or to remove it to a proper place." Smith, 338 Ark. at 89, 991 S.W.2d at 596.

We find Neff, supra, controlling. The general rule is that the surviving spouse has the primary responsibility for the burial if living with the decedent as husband and wife at the time of death. Teasley, supra. Appellant Pamela Fisher was divorced from the decedent in 1993. Because the decedent had no surviving spouse, the right to possession of the corpse or control of the burial goes to the next of kin in order of their relationship to the decedent-children of proper age, parents, brothers and sisters, and so forth. Neff, supra. We agree with the trial court's decision that the appellants, being ages six and ten, were not of proper age at the time of their father's death and that the right to the remains vested in the appellees at the time of burial.

Appellants also argue that the trial court prematurely acted without holding a hearing to consider the wishes of the decedent and the genuineness of his daughters' desires to have him buried at Oak Grove Cemetery. The appellants waived their right to have this argument heard on appeal. First, the trial court gave appellants the option of presenting testimony at the August 23, 2000 hearing or having the court decide the legal issues first. Appellants chose to have the trial court decide the legal issues first, agreeing that a resolution of the legal issues would probably resolve the entire case. Second, appellants never requested a hearing after the trial court's September 14, 2000 decision in order to present any evidence on the issue of the decedent's or his daughters' desires.

Affirmed.

Pittman and Jennings, JJ., agree.

1 Pamela Fisher and the decedent were divorced on October 6, 1993.

2 Appellees filed a motion to transfer to Perry County Chancery Court, which was granted on September 6, 2000.