                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2007-CA-00267-SCT

IN RE: BODY OF VICTORIA SPIERS AGE 10,
DECEASED: CARMEN D. HASTINGS

v.

JOEL SCOTT SPIERS


DATE OF JUDGMENT:                           01/10/2007
TRIAL JUDGE:                                HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                  ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     EDWIN WOODS, JR.
ATTORNEY FOR APPELLEE:                      JAMES M. PRIEST, JR.
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND RENDERED - 08/21/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       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 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.


       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.

                                             2
¶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


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“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.

                                          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, 357 So. 2d 135, 138 (Miss. 1978)3 . This Court will not disturb the findings

of a chancellor (or circuit judge in this case) when supported by substantial credible evidence

unless the judge abused his discretion, was manifestly wrong, was clearly erroneous, or an

erroneous legal standard was applied. Sanderson v. Sanderson, 824 So. 2d 623, 625 (Miss.

2002).




         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, 940 So. 2d 230, 233-34 (Miss. 2006) (recognizing that circuit courts are courts
of general jurisdiction that may sometimes hear equity matters).

                                                4
¶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, 357 So. 2d at 136-37. Rules must be followed in considering

these cases. Citing the Pennsylvania case of Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878

(1904), Hood stated:

       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, 357 So. 2d at 137. “There is no rigid rule for either permitting or refusing removal

of a body once interred and each case must be determined on its own merits with due regard

to” five factors: (1) public interest, (2) wishes of the decedent, (3) rights and feelings of those

                                                5
entitled to be heard by reason of relationship, (4) rights and principles of religious bodies or

other organizations which granted interment in the first burial site, and (5) whether consent

was given to interment in the first burial site by the one claiming the right of removal. Id.

¶13.   For obvious reasons, most of the cases on the subject of disinterment of human

remains, such as Hood and Pettigrew, 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, 357 So. 2d at 137. Here we are faced with the

competing interests of Tori’s biological parents, who both share the same degree of relation

to Tori. Therefore, we must turn to the trial court’s weighing of the Hood factors to

determine whether denying Hastings’s request to disinter Tori’s remains and move them to

Texas was an abuse of discretion.

¶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

                                                6
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 her – I need her home.”




                                              7
¶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. 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, 520 S.W.2d 736 (Tenn. Ct. App. 1974) (disinterment and

relocation of husband’s body from family plot allowed due to hostility between husband’s

family and widow); see also Bradley v. Burgis, 25 So. 2d 753 (La. App. 1946) (widow

allowed to disinter and move husband’s body because it had become impossible for her to

                                              8
visit his grave without being confronted with hostility). While there is no evidence of any

hostility towards Hastings when she has visited Tori’s grave, it is obviously difficult for her

to visit given the distance between Wichita Falls, Texas, and Liberty, Mississippi. Hastings

even testified that “as her mother,” it was her place to bring flowers to Tori’s grave, and that

she was unable to do so, given the situation.

¶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, 357 So. 2d at 137. Instead,

“each case must be determined on its own merits with due regard” to the factors prescribed

for consideration. Id. The only two factors from Hood that actually apply to this case weigh

heavily in favor of Hastings. Hastings did not consent to Tori’s burial in Mississippi, and in

fact, adamantly opposed that burial. The “right to be heard by reason of relationship” factor

also weighs in Hastings’s favor as she was the only one heard in this matter. Taken together,

Hastings’s testimony, Tori’s connection to Wichita Falls and her lack of any substantial

connection to the State of Mississippi, and the trial judge’s own repeated admission that Tori

would have been buried in Wichita Falls if not for Hastings’s serious injuries in the plane

crash, all compel a decision that Tori’s body be disinterred and moved to Wichita Falls.

Considering the totality of the record, we are unable to say that the court’s decision was

supported by substantial credible evidence. To the contrary, the only evidence in this sad

record supports Hastings’s petition.

                                       CONCLUSION




                                                9
¶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
RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT
SEPARATE WRITTEN OPINION.




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