JOAN MARINO v. LARRY L. MARINO, JR., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2246-06T22246-06T2

JOAN MARINO,

Plaintiff-Appellant/

Cross-Respondent,

v.

LARRY L. MARINO, JR., BRETT MARINO,

JENNIFER MARINO, JOHN MARINO and

DOROTHY MARINO,

Defendants-Respondents/

Cross-Appellants.

____________________________________

 
 

Argued: November 13, 2007 - Decided:

Before Judges Stern, Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Warren County, C-16011-06.

Alan J. Baldwin argued the cause for appellant (Broderick, Newmark & Grather, attorneys; Mr. Baldwin, on the brief).

R. Gregory Leonard argued the cause for respondents (The Rotolo Law Firm, attorneys; Mr. Leonard, of counsel and on the brief).

The opinion of the court was delivered by

C.L. MINIMAN, J.A.D.

Plaintiff Joan Marino, who sought an order authorizing the disinterment of her husband's remains, appeals from a final judgment of the Chancery Division limiting her relief to the inclusion of her name and dates of birth and death on the plot-of-burial headstone. Defendants Larry L. Marino, Jr., Brett Marino, Jennifer Marino, John Marino and Dorothy Marino, plaintiff's adult children (Jennifer and John), adult step-children (Larry and Brett) and mother-in-law (Dorothy), cross-appeal from the portion of the final judgment that requires them to pay seventy-five percent of the cost of a new headstone. Because the judge failed to construe N.J.S.A. 45:27-23 in pari materia with N.J.S.A. 45:27-22, we reverse.

This action grew out of a dispute between Joan, the widow of Larry L. Marino, Sr., and her adult children, step-children and mother-in-law over the plot in which the decedent's remains should be buried. Joan and the decedent married on August 7, 1982. The decedent brought two children to the marriage and four more children were born of the marriage. All six children lived with Joan and decedent while they were minors.

Joan's husband died at home from lung cancer at the age of forty-nine on October 23, 2005. They had a good marriage although they had some rough spots at the end of April and early May 2005 and again during the first two weeks of July 2005. During those times they argued about decedent's relationship with another woman and his drinking. They planned to attend counseling, but chemotherapy precluded that effort. They continued to share a bed and their marriage was not estranged. A decade before his illness, Joan and her husband purchased a plot at a cemetery where both of their mothers owned plots and where decedent's father and five out of their eight grandparents were buried. The plot purchased by Joan and decedent was not contiguous with any other family plot, but title was held in the name of Joan's mother because she was a member of the parish that owned the cemetery.

After Joan's husband died, she and Brett went to the cemetery to confirm that the right grave had been staked out by the cemetery for the burial. The next day, Brett took Joan for a ride and told her that Jennifer did not want her father buried next to Joan's mother and instead wanted him buried next to his father. However, Joan's mother did not own the plot next to the one owned by Joan and decedent. Joan became hysterical because she did not want her husband buried with his father and because decedent told her that he wanted to be buried on the right-hand side of their plot "because that was the side of the bed that he slept on, and I was going to be buried on the left hand side[,] [s]o it was like we were sleeping." She insisted that Brett take her home.

Soon after they arrived home, all of the children except Nicholas met with her and she begged them to bury decedent in her plot. One of them said that Joan and decedent were not even staying together and Joan denied this statement and told them to ask Bob Maribelli, one of the men with whom decedent worked. They told her that they had voted where to bury their father but, if Maribelli said that Joan and her husband were staying together, they would bury decedent in Joan's plot.

Maribelli came over to the house and told the children that the decedent had told him that he and Joan were staying together. After this conversation, the children voted again but they still would not agree to bury their father in the plot he and Joan owned. Joan protested that it was her decision where to bury her husband, but they told her she did not have that right because Larry Jr. and Jennifer were the executors and that Joan had no say in the matter. Although she continued to beg them to bury their father in the plot she and her husband purchased, they would not relent. Finally, Larry Jr. told her that if she did not stop arguing about it, they would not allow her to attend the viewing or funeral and that she was lucky they allowed her to pick out the casket and help with the arrangements. Even after the burial Joan continued to try to persuade her children to rebury their father in the plot he had selected with her. However, Larry Jr. told Joan that it was his decision and his alone where his father would be buried.

Joan's mother, Rose Sciabica, also testified and confirmed that Joan and decedent purchased a plot at her suggestion about ten years before decedent's death because available plots were dwindling. Rose and the decedent had a conversation about a week or so before he died during the course of which he said, "when Joan and I are gone, I know where we will be because we have our plots there, . . . it's one less headache for Joan."

Before the funeral Rose interrupted a conversation between Joan and Larry Jr. Joan was very upset. Larry Jr. was screaming at Joan, saying "shut your F'ing mouth because I'm in charge, and what I say goes. I'm the executor, and when my dad gets buried, it's up to me and no one else." When Joan protested that she and her husband had bought the plots, Larry Jr. said, "shut your F'ing mouth or you're not going to go to the funeral or the viewing." When Rose asked what was wrong, Larry Jr. said, "shut your F'ing mouth, you old lady, this is none of your business." Similar comments were made at a subsequent argument that Rose overheard.

Joan's version of the events surrounding the burial of her husband and the quality of her relationship with him was, by and large, disputed by defendants and their witnesses. However, the judge found the testimony of Joan and her mother to be "generally credible." The judge found that Joan did not abandon decedent when he was ill or when he became involved with another woman. Rather, she stayed by his side and continued to care for him and have marital relations with him as late as six weeks before his death. She determined that the decedent died without a provision in his will specifying the place of burial. Of note is the fact that his Last Will and Testament was executed on May 20, 2005, five months before he died. The judge found that Jennifer and Larry Jr. asserted that they alone had the prerogative to decide in which plot their father would be buried and that Larry Jr. threatened to exclude her from the funeral. The judge found that Joan was unduly pressured to acquiesce in the burial and was overwhelmed by the circumstances in which the issue arose.

The judge observed that the testimony of the defense witnesses "seemed rehearsed and their answers appeared molded so as to understate [Joan's] reaction to the family decision and overstate the marital problems of the decedent and [Joan]." Indeed, the judge specifically found that John's testimony was especially not credible. Nonetheless, the judge found from the testimony of the defense witnesses that the decedent's "preference at the end of his life, although not stated in his Last Will and Testament, was to have his remains located adjacent to his father's remains and not in his own plot nor would the decedent want his remains disinterred."

The judge observed that Joan had a statutory right under N.J.S.A. 45:27-22 to decide where her husband would be buried that was superior to any adult child's right to make that decision. However, she found that Joan's frustrated right of burial did not control the issue of disinterment because, recognizing a strong policy against disinterment, the decedent's preference to was to be buried with his father. Specifically, the judge ruled that "[t]he decedent['s] stated preference must be accorded the same priority as if the decedent had articulated his wishes in a Will." Accordingly, the judge denied the application to disinter decedent's remains.

Joan contends in this appeal that her statutory right to determine the burial of her husband's remains was paramount to any preference he may have had because he did not express that preference in writing, as required by N.J.S.A. 45:27-22. She argues that any such preference should not have informed the decision respecting disinterment. On the other hand, defendants contend that the correct rule of decision is found in N.J.S.A. 45:27-23, which governs disinterment, and that it is proper under this statute to consider the wishes of the decedent.

Our review of a judgment entered in a non-jury case, as here, is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The findings on which the judgment is "based should not be disturbed" except in "a clear case where there is no doubt about the matter." Ibid.

That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions.

[Id. at 484 (citations omitted); see also Sager v. O.A. Peterson Const. Co., 182 N.J. 156, 163-64 (2004); Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002); Mizrahi v. Cannon, 375 N.J. Super. 221, 227 (App. Div. 2005).]

Joan does not contend that the judge's fact-findings should be disturbed on appeal. Rather, she contends that the judge erred in applying the law to the facts, which triggers a different scope of review. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999) (stating that "[m]atters of law are subject to a de novo review"). Additionally, a fundamental error in balancing the facts is subject to de novo review. In re Application of Boyadjian, 362 N.J. Super. 463, 475 (App. Div.), certif. denied, 178 N.J. 250 (2003).

The development of the law governing exhumation was reviewed by our Supreme Court in 1956:

From a very early date in England the ecclesiastical courts had exclusive juris-diction of the dead and as a consequence the early common law refused to recognize a concept of property rights in the body of a deceased person. Lord Coke . . . says it was "nullius in bonis and belongs to ecclesiastical cognizance." Thus under English law, once a body was buried it could not be removed except by order of the coroner for the purpose of an inquest or by special dispensation of the consistory court, an ecclesiastical tribunal, or by license of the Secretary of State. This concept has been modified somewhat by time and circumstance . . . .

 
With the repudiation of the ecclesiastical courts in the American colonies, jurisdiction over these matters passed to the temporal courts. Early Mr. Justice Story pointed out the remedy lay "in the protecting power of the Court of Chancery." In this State the development has been according to the common pattern.

 
[In re Sheffield Farms Co., 22 N.J. 548, 555-56 (1956) (citations omitted).]

It was considered settled that

there is no property right in a dead body; that, upon the death of a married person, the surviving husband or wife is entitled to the custody of the dead body, and charged with the duty of furnishing proper burial; that, when that duty has been discharged, and the remains of the dead have been buried, the right of custody in the surviving husband or wife at once ceases[.]

[Smith v. Shepherd, 64 N.J. Eq. 401, 403 (Ch. 1903) (denying application of wife to rebury her husband in another plot when the wife consented to the first burial); see also In re Sheffield, supra, 22 N.J. at 556; Lascurain v. City of Newark, 349 N.J. Super. 251, 270 (App. Div. 2002); Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951).]

Nevertheless, over time "the prevailing view in New Jersey [became] 'that the right to bury the dead and preserve the remains is a quasi right in property, the infringement of which may be redressed by an action in damages.'" Strachan v. John F. Kennedy Mem'l Hosp., 209 N.J. Super. 300, 311-12 (App. Div. 1986) (citing Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93 (Sup. Ct. 1936)), aff'd in part and rev'd in part on other grounds, 109 N.J. 523, 531 (1988). Additionally, the view that a surviving spouse's right of custody ceases with the initial burial has been criticized as overly harsh. See Annotation, "Removal and Reinterment of Remains," 21 A.L.R.2d 472, 503 (1952).

Thus, only a court of equity could order the disinterment of human remains:

A dead human body, once buried, is in the custody of the law, and removal and disturbance of such body is subject to the jurisdiction of a court of equity, which, in such matters, in this country, is the successor of the ecclesiastical courts, but the power to disturb a dead body should not be exercised unless it be clearly shown that good cause and urgent necessity for such action exist.

[Perth Amboy Gas Light Co. v. Kilek, 102 N.J. Eq. 588, 590 (E. & A. 1928) (citations omitted; see also, Guerin v. Cassidy, 38 N.J. Super. 454, 458 (Ch. Div. 1955); Fidelity Union, supra, 16 N.J. Super. at 489.]

"The circumstances which will compel a court of equity to act in this regard vary depending upon whether the moving party seeks to vindicate a public or private right." Harris v. Borough of Fair Haven, 317 N.J. Super. 226, 234 (Ch. Div. 1998). Where the right is purely private, no showing of urgent necessity need be made. Felipe v. Vega, 239 N.J. Super. 81, 86 (Ch. Div. 1989).

In deciding whether to order disinterment, a number of factors are considered.

They include the decedent's stated prefer-ence, if any, religious considerations, ownership rights in the plot, the closeness of the relationship between the petitioner and the decedent and the lapse of time from the original interment. Also included is the petitioner's desire to satisfy a longing that those united during life shall not be divided after death. Finally, there is a general agreement that if there is a surviving spouse, that person has the primary and paramount right to the possession of the body and the right to control its burial and other disposition.

[Id. at 85 (citations and quotations omitted).]

"The general rule is that although . . . legal compulsion may not attach to them, the wishes or directions of a decedent as to his interment are entitled to respectful consideration and have been allowed great weight." Fidelity Union, supra, 16 N.J. Super. at 290; see also Renga v. Spadone, 60 N.J. Super. 353, 359-60 (Ch. Div. 1960). "[Q]uestions of removal will always involve a balance favoring non-removal . . . ." Felipe, supra, 239 N.J. Super. at 87 (holding that "the natural desires and needs of the living should still be considered paramount absent some stated preference by the decedent"). In determining the stated preference of the decedent, the court may consider hearsay testimony. Bruning v. Eckman Funeral Home, 300 N.J. Super. 424, 432 (App. Div. 1997).

Where there are disputes among family members regarding the site of burial, "courts generally concluded that the surviving spouse's desires had priority over other relatives, including children of the decedent." Sherman v. Sherman, 330 N.J. Super. 638, 649 (Ch. Div. 1999).

In 1971 the Legislature "brought clarity to the general rules that may be glimpsed through the mist of the common law," id. at 649-50, when Title 8A Chapter 5 of the New Jersey Statutes governing the operation and management of cemetery companies was enacted. L. 1971, c. 333. With respect to interment, the act provided in relevant part:

The right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent or by a court of competent jurisdiction shall be in the following order:

a. The surviving spouse.

b. A majority of the surviving children of the decedent or the surviving child if one. . . .

[N.J.S.A. 8A:5-18.]

The statute thus made the decedent's preference paramount, whether stated orally in writing. Sherman, supra, 330 N.J. Super. at 650. "Indeed, the decedent's preference may be determined by resort to both testamentary and nontestamentary statements." Ibid. Where there is no stated preference, even an estranged surviving spouse has the right to determine the site of burial. Id. at 651 (refusing to interfere with the estranged surviving spouse's choice of burial site).

With respect to disinterment, N.J.S.A. 8A:5-20 provided:

Remains interred in an interment space in a cemetery may be removed therefrom with the consent of the cemetery company and written consent of the owner or one of the owners of the interment space and of the surviving spouse and children, if of full age. If the consent of any such person or of the cemetery company cannot be obtained, the permission of the New Jersey Cemetery Board shall be sufficient.

Subsequently, the last sentence of the statute was deleted effective September 10, 1973. We concluded, "in view of the ancient and well established equitable jurisdiction over the disposition and disinterment of dead bodies," that the removal of the last sentence was intended "to eliminate any question about the continuing jurisdiction of the Superior Court as the successor to the former Court of Chancery over the protection of dead bodies." Jones v. Jones, 255 N.J. Super. 213, 216 (App. Div. 1992) (citing In re Sheffield, supra, 22 N.J. at 556). We also concluded that the statutory requirement for consent of the spouse and adult children "does not preclude a court order for disinterment in an appropriate case even over the objection of a spouse or adult child." Id. at 217.

In 2003 the Legislature enacted the "New Jersey Cemetery Act, 2003," continuing and establishing the New Jersey Cemetery Board and regulating the operation of cemeteries in New Jersey. N.J.S.A. 45:27-1 to -38. In doing so, it repealed the entirety of Title 8A Chapter 5. L. 2003, c. 261, 42, eff. April 13, 2004. The Cemetery Act sought to clarify the standards for determining the deceased's intent by making written instructions binding:

a. If a decedent, in a Will . . . appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. . . . If the decedent has not left a Will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order . . . :

(1) The surviving spouse of the decedent;

(2) The majority of the surviving adult children of the decedent . . . .

[N.J.S.A. 45:27-22.]

One of the purposes of the amendment was to make the decedent's decision regarding who shall make funeral arrangements binding, provided that the decision is in writing. S. Doc. No. 1992 (2003). Before the legislature passed the New Jersey Cemetery Act, a decedent's instructions about funeral plans were given "respectful consideration," but were not binding. Guerin, supra, 38 N.J. Super. 454. Now under the Cemetery Act, orally expressed preferences are no longer binding and the surviving spouse may select a burial site inconsistent with those preferences.

The adult children violated this statute and deprived the surviving spouse of the right to determine the disposition of the remains of her husband of twenty-three years. Instead, the children decided to bury their father in a plot owned by the paternal grandmother where plaintiff wife had no right of burial. The Chancery judge found that this statute was violated. However, she analyzed the request to disinter and relocate the body to another plot in the cemetery under N.J.S.A. 45:27-23 without consideration of the potential impact of N.J.S.A. 45:27-22 on the factors bearing upon disinterment. The former statute provides:

Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:

(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;

(2) removal is authorized by a State disinterment permit issued by the local board of health; and

(3) the cemetery finds that removal is feasible.

[N.J.S.A. 45:27-23.]

Thus, the statute does not prohibit disinterments that are inconsistent with even a binding preference expressed in a will.

The judge concluded that she would not order disinterment because "decedent's preference, although not memorialized in a testamentary provision, is still paramount under the circumstances." She also ruled that "[t]he decedent['s] stated preference must be accorded the same priority as if the decedent had articulated his wishes in a Will." The issue thus becomes whether an orally expressed preference can control the disinterment and essentially trump all of the factors favoring removal when it cannot control the interment.

"It is a cardinal rule of statutory construction that the intention of the Legislature is to be derived from a view of the entire statute and that all sections must be read together in the light of the general intent of the act so that the auxiliary effect of each individual part of a section is made consistent with the whole." Febbi v. Bd. of Review, 35 N.J. 601, 606 (1961) (citations omitted). "The meaning of a statute and the intention of the Legislature in adopting it must be gained, not alone from the words used within the particular section involved, but from those words when read in connection with the entire enactment of which it is an integral part." Skakel v. North Bergen, 37 N.J. 369, 383 (1962) (citing In re Sheffield, supra, 22 N.J. 548).

The Legislature did not refer to the decedent's preference as informing a decision to disinter under N.J.S.A. 45:27-23, but it did determine that only written instructions in a will are binding on interment. N.J.S.A. 45:27-22. These two sections of the New Jersey Cemetery Act should be read in pari materia and the judge should not have considered the hearsay testimony respecting the decedent's burial preferences as paramount or having priority over all other factors. Most jurisdictions give the greatest consideration to the interests of the person authorized to make the initial burial arrangements when weighing factors for disinterment. Annotation, supra, 21 A.L.R. 2d at 503. Joan was the person authorized by N.J.S.A. 45:27-22 to make burial arrangements and her interest should have been given the greatest consideration.

The judge should also have considered the conduct of defendants as a factor in deciding whether to disinter. The Cemetery Act provides:

A person who signs an authorization for the funeral and disposition of human remains warrants the truth of the facts stated, the identity of the person whose remains are disposed and the authority to order the disposition. The person shall be liable for damages caused by a false statement or breach of warranty.

[N.J.S.A. 45:27-22(d).]

A court of equity "is fully authorized to discharge the maxims that sustain our equity jurisprudence. Chief among these maxims is that which states 'wherever a legal right has been infringed a remedy will be given' or, as more commonly stated, 'equity will not suffer a wrong without a remedy.'" In re Mossavi, 334 N.J. Super. 112, 121 (Ch. Div. 2000). The statute does not confine the injured party to a damage award. An equitable remedy is thus available.

The judge also did not consider Joan's "desire to satisfy a longing that those united during life shall not be divided after death." Felipe, supra, 239 N.J. Super. at 85. Nor did she acknowledge that Joan had "the primary and paramount right to the possession of the body and the right to control its burial and other disposition." Ibid. The decision to disinter involves a balancing of the factors favoring disinterment against those that do not and we review a fundamental error in balancing the facts de novo. Boyadjian, supra, 362 N.J. Super. at 475. Here the judge did not engage in a balancing analysis of all of the relevant factors, instead treating the decedent's oral preference as determinative. Even if the defense witnesses were totally credible, the decedent's orally expressed preference does not outweigh all the other factors that strongly favor disinterment. That preference is even weaker coming from the mouths of witnesses who were not generally credible, as the judge found here. Under a proper balancing analysis plaintiff has clearly established good cause for removal that overcomes the presumption of nonremoval. Accordingly, the trial judge is to enter an order authorizing disinterment, subject to the issuance of a disinterment permit and a determination by the cemetery that removal is feasible.

 
Reversed and remanded for further proceedings consistent with this opinion.

__________________________________________________________

STERN, P.J.A.D., dissenting.

Because I believe N.J.S.A. 45:27-22 essentially concerns the decision regarding where a decedent is to be buried, as opposed to the independent policy relating to disinterment to which N.J.S.A. 45:27-23 refers, I would affirm the judgment which is based on substantial credible evidence in the record. Once Larry Marino, Sr. was buried, other factors in addition to the surviving spouse's decision came into play, and the trial judge upheld the position of the decedent's children based on evidence which supports that decision. Hence, because the judge applied correct legal principles, this case is one which turns on our traditional scope of review. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). I would therefore affirm the judgment substantially for the reasons embodied in Judge Harriet Derman's letter opinion of November 29, 2006.

Once the decedent was buried, it seems to me that the policy restricting disinterment comes into play irrespective of how long the body is buried. But laches is a factor in the dispute concerning disinterment, and while the judge found that plaintiff's emotional distress and defendants' conduct prevented plaintiff from taking immediate legal action, it did not prevent her from taking it for eight months. Moreover, the judge did not find that any misconduct by defendants, or any of them, prevented plaintiff from taking action or asserting her statutory rights for so long a time. To the contrary, Judge Derman noted that, "prior to the burial, the family members had made an accommodation . . . that [plaintiff] could be buried above her husband."

In any event, while the New Jersey Cemetery Act, including N.J.S.A. 45:27-22 and -23 was adopted in 2003, see L. 2003, c. 261, there is no suggestion that it in any way changed the longstanding "presumption against the right of removal." Felipe v. Vega, 239 N.J. Super. 81, 85 (Ch. Div. 1989). Thus, "although the removal or other disturbance of a decedent's remains is within the jurisdiction of a court of equity, that power should not be exercised unless it is clearly been shown that good cause and urgent necessity for such action exists." Ibid. N.J.S.A. 45:27-23 permits disinterment when, among other facts, "the surviving spouse, adult children and the owner of the interment space authorize removal in writing." Presumably when all survivors agree, they are acknowledging it will not be unsettling to the family and are respecting the clear desires of the decedent.

In addition to the presumption, the trial judge expressly found that decedent wanted to be buried with his father and would not want to have his remains disinterred. Judge Derman examined the marital relationship at the end of decedent's life, what he said to family and friends concerning not wanting to remain married to plaintiff or to be buried with her, and his relationship with his mother-in-law who actually purchased the plot for plaintiff and decedent. The judge thereafter found:

Decedent's preference at the end of his life, although not stated in his Last Will and Testament, was to have his remains located adjacent to his father's remains and not in his own plot nor would the decedent want his remains disinterred.

Thus, despite the statutory role of the surviving spouse and the facts that precluded her decision-making before interment, the judge concluded that decedent should remain where he was buried at the instructions of his adult children including plaintiff's children. I would not disturb the judgment of the Chancery Division, and cannot join the majority which rejects both the spirit and language of N.J.S.A. 45:27-23.

The judge also held that defendants should partially pay for the installation of a headstone satisfactory to plaintiff on the existing grave site if she decided to be buried with her husband. As already noted, the family had reached an "accommodation" or "compromise" at the time of burial which would have provided the opportunity for plaintiff to be buried with decedent. The final judgment provides that "the headstones be ordered and installed for the Marino plot that are satisfactory to the Plaintiff so that her name and relevant information will be as conspicuous when she dies as that of the other three individuals buried in this plot" and allocates the cost. The defendants cross appeal from that part of the judgment, and they argue that that ruling was "unfair to the defendants" and that if plaintiff wants to be buried in the Marino plot, she should pay for the costs. Defendants told us at argument that they do not object to the burial of plaintiff with her husband in the Marino family plot. I have reservations on this record about the payment for the tombstone, but in light of the majority holding, I need not address the question. Frankly, I would hope that, unless the Supreme Court rules otherwise incident to deciding the appeal, or sends the issue back to us (after granting certification because the question does not constitute part of the dissent, see R. 2:2-1(a)(2)), I
would hope the issue is resolved within the family as time passes and wounds heal.

For the sake of clarity, we will refer to the parties by their first names.

Joan's other children, Daniel and Nicholas, were minors and were not parties to this action.

Jennifer would later tell Joan that she did not say this.

An example of a public right is found in N.J.S.A. 40A:9-50 permitting disinterment to investigate the cause of death.

See N.J.S.A. 26:6-37, which provides that "[n]o dead body shall be disinterred or removed from any grave, tomb or burial place within this State except . . . upon permit being given therefor by the local board [of health] in the locality where the body is interred or entombed.

Interestingly, as to credibility, the judge found "Plaintiff and her mother generally credible" while "the defense witnesses on the whole seemed rehearsed and their answers molded so as to understate the Plaintiff's reaction to the family's decision and overstate the marital problems of the decedent and Plaintiff." However, the judge nevertheless felt she was "still able to discern the decedent's intent as to the location of his remains," once buried, which she believed, and I think properly, was "the crucial issue." The judge was fair and balanced with respect to credibility when she found the defense was "not incredib[le]" as to where decedent wanted to be buried, and that the defense witnesses presented "credible testimony that he would not want his remains disinterred." Moreover, while the judge found that plaintiff "was unduly pressured to acquiesce and was overwhelmed by the circumstances," Judge Derman did not find any wrongdoing by defendants in forcing or coercing plaintiff into abandoning her statutory right or responsibility under N.J.S.A. 45:27-22. Such a finding would present a different case, as would a finding that decedent wished to be buried with his wife.

In fact, the judge found "no unreasonable delay by Plaintiff." Compare Sherman v. Sherman, 330 N.J. Super. 638, 653 (Ch. Div. 1999), where the delay of decedent's children in seeking a temporary restraining order affected the Chancery Division's evaluation of an application to restrain a burial at the location selected by decedent's estranged wife.

The judge also stated that the "compromise" "illuminat[ed] [her] decision not to disinter the remains."

I acknowledge that N.J.S.A. 45:27-23 permits disinterment "pursuant to court order" in addition to as otherwise provided in the statute. However, a court of equity should consider the decedent's expressed desire when considering an application for removing the body from its interment space. See Bruning v. Eckman Funeral Home, 300 N.J. Super. 424 (App. Div. 1997) (decided under former statute). See also Jones v. Jones, 255 N.J. Super. 213 (App. Div. 1992), also decided under former statute and affirming denial of widow's application to disinter and rebury her husband's remains.

(continued)

(continued)

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A-2246-06T2

February 19, 2008