WRIGHT (JAMES) VS. CALDWELL (BARBARA)
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RENDERED: JULY 18, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001645-MR
JAMES WRIGHT
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 07-CI-00059
BARBARA CALDWELL
APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT AND STUMBO, JUDGES.
DIXON, JUDGE: Appellant, James Wright, appeals from a judgment of the Floyd
Circuit Court settling a dispute over the burial arrangements of his decedent wife.
Finding no abuse of discretion, we affirm.
Appellant and Jeanette Wright were married for over forty years.
Appellee, Barbara Caldwell, is Jeanette’s daughter and Appellant’s stepdaughter.
When Jeanette died on November 3, 2006, she was buried in a “family cemetery”
owned by Appellee and others unnamed in this action, located in Floyd County,
Kentucky. Thereafter, a dispute arose between the parties when Appellant sought
to place a joint monument on his wife’s grave, so that upon his death, the two
could be buried side by side. Appellee objected to the placement of a joint
monument until and unless Appellant was eventually buried on the same site.
On January 19, 2007, Appellant filed a petition for injunctive relief,
requesting, “that he be allowed to be buried next to his wife upon his death, and to
place a joint monument on her grave, or in the alternative, that the Court Order
James to be allowed to move Jeanette’s remains to another cemetery.” Appellee
responded that although she owned the property on which the cemetery was
located, it was not a designated “family cemetery.” Further, Appellee stated, she
“ha[d] no objection to [Appellant] being buried next to his wife (her mother) upon
his death, and at that time to have a joint monument placed on their grave.”
However, Appellee did object to Appellant moving her mother’s remains to
another cemetery.
Appellant subsequently filed a motion for a judgment on the
pleadings, seeking an order “giving [Appellee] ten days in which to enter into an
agreement to have the monument placed on Jeanette Wright, or after the expiration
of that time, Order that her remains may be moved to a suitable resting place which
would allow the monument’s placement.” The motion was initially noticed for
hearing on March 16, 2007, re-noticed three additional times, and was ultimately
heard by the trial court on June 15, 2007. The trial court entered a judgment on
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July 11, 2007, ruling that “a judgment on the pleadings as sought by [Appellant] is
appropriate.” The judgment provided in relevant part:
(1) The petitioner, James Wright, as the spouse of the
Decedent, Jeanette Wright, has the right to establish the
burial arrangements of his spouse. See Haney v.
Stamper, 125 S.W. 2d [761] (Ky. 1939).
(2) The Respondent shall notify the Petitioner, in writing,
of her intention to allow the placement of a joint
monument, at the present resting place of Jeanette
Wright, within ten days of the date of Entry of this Order.
(3) The Petitioner is granted the right to move the
remains of Jeanette Wright to a cemetery of his choosing,
should the permission not be given by the Respondent as
set out in paragraph #2.
(4) The Petitioner is granted the right to place a single
headstone of his choosing on the existing gravesite, at his
expense, should he decide not to move the remains of
Jeanette Wright.
When Appellee did not grant permission for the joint monument
within the ten-day period, Appellant retained new counsel and filed a motion to set
aside the judgment. Attached to the motion was Appellant’s affidavit wherein he
claimed that he was not present during the hearing on the motion and he did not
consent to the terms of the judgment, nor did he authorize his attorney to enter into
such judgment by agreement. The trial court denied the motion to set aside and
this appeal followed.
Appellant inexplicably argues to this Court that the trial court erred in
denying his motion for judgment on the pleadings. In fact, the record is clear that
the trial court granted exactly the relief Appellant sought in the motion.
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Nevertheless, Appellant argues that in his original petition for injunctive relief he
sought to “place a joint monument on [Jeanette’s] grave immediately,” and
Appellee had no objection to such. Accordingly, he believes that the trial court
erred in granting Appellee the option of refusing the joint monument. We
disagree.
First, in her response to the motion for injunctive relief, Appellee
specifically stated that she had no objection to Appellant being buried next to his
wife upon his death, and at that time, to have a joint monument placed on their
grave. She did, in fact, object to the immediate placement of a joint monument and
to Appellant removing her mother’s remains to another cemetery.
Second, and more importantly, Appellant’s motion for a judgment on
the pleadings did not request the immediate placement of the joint monument but
rather, as previously noted, an order giving Appellee ten days in which to enter
into an agreement to have the monument placed on Jeanette’s grave, or after the
expiration of that time, an order that the Appellant could remove her remains to a
suitable resting place which would allow the monument’s placement. The trial
court’s order granted the sought-after relief verbatim.
Finally, we agree with Appellee that the trial court could not have
granted Appellant the right to immediately place a joint monument on Jeanette’s
grave site. The law simply does not allow a court to dictate to a landowner that
they must allow another body to be buried on one’s private premises. See
Grinestaff v. Grinestaff, 318 S.W.2d 881 (Ky. 1958).
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Next, Appellant contends that the trial court erred in denying his
motion to set aside judgment on the grounds that he was not present at the June 15,
2007, hearing and did not consent to the terms of the judgment. Appellee, on the
other hand, maintains that not only was Appellant present at that hearing, but that
during the subsequent hearing on the motion to set aside, even the trial court
recalled Appellant being present at the June 15th hearing.
This Court takes notice that on November 28, 2007, Appellant
designated the entire record, including “all pleadings, orders, motions, depositions,
memorandums, videos, and any and all other documents making up the original
record.” Nonetheless, the record is devoid of any videotapes or transcripts of the
hearings in this matter. We presume that the parties were aware of this fact
because neither cited to the record in their briefs to this Court. It is the
responsibility of parties to ensure that all parts of the record they rely upon are
properly prepared and certified by the circuit court clerk. CR 75.
Notwithstanding, Appellant’s reliance on McCutcheon’s
Administrator v. Dean, 54 S.W.2d 926 (Ky. 1932), is misplaced. Dean held that
the party had a right to be present for a trial, not a hearing on a motion. Id.
Appellant’s self-serving claim that he was not aware of the hearing and did not
authorize his attorney to agree to the judgment is not supported by the record.
Finally, Appellant relies upon the decision in Haney v. Stamper, 125
S.W.2d 761 (Ky. 1939), to argue that the trial court denied him the right to choose
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the burial arrangements of his spouse. We disagree. In Haney, the Court noted
that,
in the absence of the expressed wishes of the deceased,
the surviving spouse, where the parties have been living
in the normal relations of marriage, has the paramount
right not only to the custody of the dead body, but also to
determine the time, manner, and place of burial. The
right of the surviving spouse to prescribe the time and
manner of burial necessarily excludes the rights of others
even though they be the next of kin.
Id. at 762. (Citations omitted).
Clearly, a surviving spouse has the right, as Appellant claims, to
determine burial rights. However, such must be done within the confines of the
law. And one cannot take private property from another to fulfill the burial wishes
of a deceased spouse. See Grinestaff, supra; Haney, supra. To follow Appellant’s
argument to its logical end would have an absurd result. Here, Appellee owns the
property on which Jeanette’s grave is located. She simply cannot be forced to
place a joint monument on a grave located on her private property. Thus, the trial
court properly ordered that if Appellee did not grant permission for the joint
monument then Appellant had the right to remove Jeanette’s remains to another
location.
Appellant was granted precisely the relief he sought in his motion.
The judgment of the Floyd Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerry A. Patton
Prestonburg, KY
Larry D. Brown
Prestonburg, KY
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