[Cite as In re Estate of Eisaman, 2018-Ohio-1112.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




IN RE: THE ESTATE OF:
                                                         CASE NO. 5-17-30
        WILLIAM R. EISAMAN, JR.
                                                         OPINION
[LINDA L. BADGETT - APPELLANT]




                Appeal from Hancock County Common Pleas Court
                                Probate Division
                            Trial Court No. 20171004

                                     Judgment Affirmed

                            Date of Decision: March 26, 2018




APPEARANCES:

        Howard A. Elliott and Jeff Whitman for Appellant

        Christie L. Ranzau for Appellee
Case No. 5-17-30


PRESTON, J.

         {¶1} Petitioner-appellant, Linda L. Badgett (“Linda”), appeals the October

11, 2017 judgment entry of the Hancock County Common Pleas Court, Probate

Division, denying her petition to disinter the remains of her brother, William R.

Eisaman, Jr. (“William”). For the reasons that follow, we affirm.

         {¶2} William died on December 15, 2016 and is survived by his wife,

respondent-appellee, Charlene Eisaman (“Charlene”). (Doc. No. 3). On December

19, 2016, William was buried at Arcadia Cemetery in Arcadia, Ohio. (Id.).

         {¶3} On July 11, 2017, Linda sent a letter to Charlene’s attorney informing

Charlene that “the cemetery plot in Arcadia, Ohio, beside [William], is not available

for [Charlene’s] burial.” (Doc. No. 54); (Respondent’s Ex. A). The letter indicated

that the deed to the family burial plot at Arcadia Cemetery was “being changed to

read, ‘The Badgett Family Trust’ which excludes Charlene from being buried

there.” (Id.).

         {¶4} Charlene consulted with Coldren-Crates Funeral Home and her attorney

to determine whether she could reinter William’s remains in a different cemetery so

that she could be buried beside him. (See Doc. No. 54). On August 9, 2017,

William’s remains were disinterred and reburied at a cemetery in Van Buren, Ohio.

(Id.).




                                         -2-
Case No. 5-17-30


       {¶5} On August 30, 2017, Linda filed a petition with the trial court requesting

that William’s remains be disinterred from Van Buren and reinterred at Arcadia

Cemetery. (Doc. No. 45). Charlene filed a memorandum in opposition to Linda’s

petition on September 25, 2017. (Doc No. 53).

       {¶6} Following a bench trial on October 3, 2017, the trial court issued its

judgment on October 11, 2017 denying Linda’s petition. (Doc. No. 54).

       {¶7} On November 1, 2017, Linda filed a notice of appeal. (Doc. No. 58).

She raises one assignment of error.

                               Assignment of Error

       The Hancock County Probate Court abused its discretion in
       failing to order the reinternment [sic] of the decedent where said
       decedent had previously been disinterred, contrary to the wishes
       of the decedent and the previously granted consent given by the
       widow to his original interment.

       {¶8} In her sole assignment of error, Linda argues that the trial court erred

by denying her petition to disinter William’s remains. In particular, Linda contends

that because William specifically desired to be buried at Arcadia Cemetery and

because Charlene originally consented to interring William at Arcadia Cemetery,

the trial court abused its discretion by denying her petition to exhume William’s

remains from Van Buren and reinter them at Arcadia Cemetery.

       {¶9} “‘When reviewing a civil appeal from a bench trial, we apply a manifest

weight standard of review.’” Lump v. Larson, 3d Dist. Logan No. 8-14-14, 2015-


                                         -3-
Case No. 5-17-30


Ohio-469, ¶ 9, quoting San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga No. 99786,

2014-Ohio-2071, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal

Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, ¶ 5 (8th Dist.). “‘[A] civil judgment

“supported by some competent, credible evidence going to all the essential elements

of the case will not be reversed by a reviewing court as being against the manifest

weight of the evidence.”’” Id., quoting Warnecke v. Chaney, 194 Ohio App.3d 459,

2011-Ohio-3007, ¶ 13 (3d Dist.), quoting C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279 (1978), syllabus.

       {¶10} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the trier

of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v. Wilson,

113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this presumption is

that the trial court is in the best position to evaluate the evidence by viewing

witnesses and observing their demeanor, voice inflection, and gestures.’” Id.,

quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80 (1984). “‘“A reviewing court should not reverse a decision simply because it

holds a different opinion concerning the credibility of the witnesses and evidence

submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons

Coal Co. at 81. “‘“A finding of an error in law is a legitimate ground for reversal,




                                         -4-
Case No. 5-17-30


but a difference of opinion on credibility of witnesses and evidence is not.”’” Id.,

quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.

       {¶11} R.C. 517.23 and 517.24 govern the procedures for the disinterment

and reinterment of human remains. R.C. 517.23, in relevant part, provides:

       [T]he board of township trustees, the trustees or directors of a

       cemetery association, or the other officers having control and

       management of a cemetery or the officer of a municipal corporation

       who has control and management of a municipal cemetery shall

       disinter or grant permission to disinter any remains buried in the

       cemetery * * * [o]n order of a probate court issued under division (B)

       of section 517.24 of the Revised Code * * *.

R.C. 517.23(A)(2). Under R.C. 517.24(B)(1)

       [a]ny person who is eighteen years of age or older and of sound mind,

       * * * and who wishes to obtain a court order for the disinterment of

       the remains of the decedent may file an application in the probate

       court of the county in which the decedent is buried requesting the

       court to issue an order for the disinterment of the remains of the

       decedent.

After the filing of an application for disinterment, the probate court must promptly




                                        -5-
Case No. 5-17-30


      conduct a hearing to determine whether to issue an order for

      disinterment of the remains of the decedent. Except as otherwise

      provided in division (B)(3)(a) of this section, at the hearing, the court,

      in its discretion, may issue an order for disinterment of the decedent's

      remains if good cause for disinterment is shown.

R.C. 517.24(B)(3)(a).

      {¶12} “Well-established public and legal policy has been that a person, once

buried, should not be exhumed except for the most compelling reasons.” In re

Disinterment of Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, ¶ 15 (6th Dist.),

citing Spanich v. Reichelderfer, 90 Ohio App.3d 148, 155 (2d Dist.1993), citing

Yome v. Gorman, 242 N.Y. 395 (1926). This general policy is exemplified in the

requirement that good cause for disinterment must be demonstrated before the

probate court may issue an order for disinterment. See R.C. 517.24(B)(3)(a).

      {¶13} In determining contested requests for disinterment, Ohio courts of

appeal apply a flexible, multifactor-equitable standard. See In re Disinterment of

Swing, 6th Dist. Lucas No. L-14-1036, 2014-Ohio-5454, ¶ 16, citing Frobose at ¶

16; Spanich at 152-155; In re Disinterment of Ervin, 4th Dist. Scioto No. 96 CA

2466, 1997 WL 156625, *2 (Mar. 31, 1997). These factors include:

      (1) the degree of relationship that the party seeking reinterment bears to the

      decedent, (2) the degree of relationship that the party seeking to prevent


                                         -6-
Case No. 5-17-30


       reinterment bears to the decedent, (3) the desire of the decedent, (4) the

       conduct of the person seeking reinterment, especially as it may relate to the

       circumstances of the original interment, (5) the conduct of the person seeking

       to prevent reinterment, (6) the length of time that has elapsed since the

       original interment, and (7) the strength of the reasons offered both in favor

       of and in opposition to reinterment.

Frobose at ¶ 16, citing Spanich at 152-155, citing Novelli v. Carroll, 278 Pa.Super

141 (1980).

       {¶14} “A probate court’s decision regarding the request for disinterment may

not be reversed absent an abuse of discretion.” Frobose at ¶ 17, citing Ervin at *2.

An abuse of discretion suggests the trial court’s decision is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶15} The trial court summarized its decision to deny Linda’s petition thusly:

“After weighing the Frobose factors, acknowledging the public policy that a

person’s remains should not be exhumed except for the most compelling reasons,

and in light of the clear preference in the law favoring the surviving spouse, the

Court hereby DENIES Linda Badgett’s request to have the remains of William

Eisaman exhumed.” (Emphasis sic.) (Doc. No. 54). The trial court’s analysis

centered on five of the equitable factors outlined in Frobose.




                                         -7-
Case No. 5-17-30


       {¶16} First, the trial court assessed the first two factors identified in

Frobose—the degree of relationship between the decedent and the party seeking

reinterment and the degree of relationship between the decedent and the party

opposing reinterment. The trial court found that Charlene was William’s wife of 27

years, whereas Linda was William’s biological sister. (Id.). The trial court denied

Linda’s petition, in part, because of “the clear preference in the law favoring the

surviving spouse.” (Id.).

       {¶17} The trial court then evaluated the third Frobose factor—the desires of

the decedent. The trial court found that there is no dispute that William specifically

chose Arcadia Cemetery as his burial site. (Id.). However, based on Charlene’s

testimony concerning William’s wishes, the trial court found that William also had

a strong desire to be buried alongside Charlene. (Id.). The trial court emphasized

that it is clear that “[William’s] intention was to buried at Arcadia Cemetery next to

his wife.” (Id.).

       {¶18} Next, the trial court examined the fourth Frobose factor—the conduct

of the party seeking reinterment. The trial court remarked that “it was the letter

from Linda Badgett in July, 2017 that started this whole case in motion.” (Id.). The

trial court also noted that Charlene did not take steps to disinter and rebury

William’s remains until she received the letter from Linda explaining that she could

not be buried next to William in the family plot at Arcadia Cemetery. (Id.). The


                                         -8-
Case No. 5-17-30


trial court stated that it could not “ignore that had the July letter not been sent,

William Eisaman would likely still be in his original resting place.” (Id.).

       {¶19} Finally, the trial court considered the fifth Frobose factor— the

conduct of the party opposing reinterment. The trial court observed that “[Charlene]

had [William’s] remains exhumed and reburied in Van Buren, Ohio so that at least

they could be buried together.” (Id.).

       {¶20} After reviewing the record, we conclude that the trial court’s analysis

of the factors described in Frobose is supported by some competent, credible

evidence.

       {¶21} As to the first and second Frobose factors, the record supports the trial

court’s conclusion that Charlene’s relationship to William as his surviving spouse

merited more weight than Linda’s relationship to William as his sister. (See Oct. 3,

2017 Tr. at 8, 42). (See Petitioner’s Ex. 1). “‘[T]he interest of a surviving spouse *

* * in reinterment is stronger in most cases than is the interest of someone less

closely related * * *.’” Spanich, 90 Ohio App.3d at 153, quoting Novelli, 278

Pa.Super. at 148. However, the interests of a surviving spouse may not defeat the

rights of another interested party in the disposition of a decedent’s remains in every

instance. See, e.g., id. at 153 (noting that “if the husband and wife were separated

before the decedent’s death, the preference given to the surviving spouse may be

weaker”), quoting Novelli at 148, citing Stackhouse v. Todisco, 370 Mass. 860


                                         -9-
Case No. 5-17-30


(1976).   In this case, there is no competent, credible evidence in the record

suggesting that William and Charlene’s marriage was strained, that the two were on

bad terms when William died, or that there is any other reason to deny Charlene the

preference usually accorded to surviving spouses.

       {¶22} The record also supports the trial court’s conclusion that William

strongly desired to be buried next to Charlene. Charlene testified that it was

William’s intent that they be buried next to one another. (See, e.g., Oct. 3, 2017 Tr.

at 29, 44-47). Because the trial court was in the best position to assess Charlene’s

credibility in testifying about William’s desires, this court will not cast doubt on the

trial court’s decision to accept Charlene’s testimony. See Seasons Coal Co., 10

Ohio St.3d at 80.

       {¶23} Moreover, there is competent, credible evidence supporting the trial

court’s conclusion as to the fourth Frobose factor—that Linda’s conduct weighed

against disinterring William’s remains. Linda’s July 11, 2017 letter left no doubt

that Charlene would not be allowed to be buried in the family plot next to William.

(See Respondent’s Ex. A). The letter claimed that, as of July 2017, title to the plot

still remained in the name of William and Linda’s deceased father and that a

restriction in their father’s will precluded their spouses from being buried in the plot.

(See Respondent’s Ex. A). (See also Oct. 3, 2017 Tr. at 22). Linda testified that she

has since resolved the problem by titling the plot in the name of the “Badgett Family


                                          -10-
Case No. 5-17-30


Trust” and that Charlene is now allowed to be buried there. (Oct. 3, 2017 Tr. at 20-

24). Yet, the letter unambiguously states that Charlene was not allowed to be buried

in the Arcadia Cemetery plot because it was going to be retitled in the name of the

trust. (Respondent’s Ex. A) (“[T]he deed is being changed to read, ‘The Badgett

Family Trust’ which excludes Charlene from being buried there.”). Linda also

testified that she is not opposed to Charlene being buried in the family plot at

Arcadia Cemetery. (Oct. 3, 2017 Tr. at 20-24). However, the trial court found that

Linda’s testimony concerning her change of heart was disingenuous and that her

objection to Charlene’s burial in the family plot at Arcadia Cemetery softened only

in the face of litigation. (Doc. No. 54). As with Charlene’s testimony, this court is

not in a position to second guess the trial court’s determination regarding Linda’s

sincerity. See Seasons Coal Co. at 80. As such, there is competent, credible

evidence supporting the trial court’s conclusion that Linda’s attempt to block

Charlene from being buried in the family plot at Arcadia Cemetery weighed against

disinterment. See Spanich at 154 (noting that a relative’s position in disinterment

proceedings may be very weak if the relative has “‘done something to frustrate the

widow’s desire to visit the gravesite or be buried there’”), quoting Novelli at 150.

       {¶24} Lastly, the trial court’s treatment of Charlene’s conduct—the fifth

Frobose factor—is supported by some competent, credible evidence. On appeal,

Linda argues that because the evidence in the record weighs heavily in her favor


                                        -11-
Case No. 5-17-30


regarding the fifth Frobose factor, the trial court erred by concluding that the

Frobose factors weighed against disinterring William’s remains. That is, Linda

argues that three examples of Charlene’s conduct weigh in favor of disinterring

William’s remains and returning them to Arcadia Cemetery.

         {¶25} First, Linda points to the fact that there is no evidence in the record

that Charlene submitted a written application for disinterment to the Arcadia

Cemetery Board as required under R.C. 517.23 and 517.24.1 While the issue of

whether Charlene complied with the proper procedures to disinter William’s

remains is relevant to whether Charlene’s conduct weighs in favor of disinterment,

the record reflects that Charlene undertook a good-faith effort to adhere to these

procedures when she sought to disinter William’s remains. 2 Charlene testified that

she consulted with Coldren-Crates Funeral Home and with her attorney about the

steps she needed to take to disinter William’s remains and that she “made the

necessary arrangements” to do so. (Oct. 3, 2017 Tr. at 28-30, 47). Based on that

evidence, the trial court found that Coldren-Crates Funeral Home had William’s

remains disinterred without providing Charlene with any “further information as to



1
  R.C. 517.24(A) provides that “[a]n application by a surviving spouse for disinterment under [R.C. 517.23]
shall be in writing and shall state that the applicant is the surviving spouse of the decedent, that the applicant
is eighteen years of age or older and of sound mind, the disease of which the decedent died, and the place at
which the remains shall be reinterred. The application shall be subscribed and verified by oath.”
2
  Because this appeal concerns whether the trial court properly denied Linda’s petition to disinter William’s
remains from Van Buren and not whether Charlene followed the proper procedures to disinter William’s
remains in the first place, we do not rule on the question of whether the steps Charlene took to disinter
William’s remains from Arcadia will generally suffice under R.C. 517.23 and 517.24.

                                                      -12-
Case No. 5-17-30


how that process was done.” (Doc. No. 54). Thus, competent, credible evidence

supports that Charlene did not deliberately skirt the prescribed procedures.

       {¶26} Second, Linda points to the fact that Charlene did not notify Linda or

any other member of William’s family that William’s remains were being exhumed

and reburied in Van Buren. Ideally, Charlene would have informed Linda and

William’s family of her intentions. However, the trial court correctly noted that

neither R.C. 517.23 nor 517.24 require a surviving spouse to notify anyone of their

plans to disinter the remains of their deceased spouse. (See Doc. No. 54).

       {¶27} Finally, Linda argues that Charlene consented to William’s burial at

Arcadia Cemetery and thus waived her rights to have him interred anywhere else.

If the surviving spouse chooses or assents to the choice of the original burial site,

“‘her later claim to a right of reinterment may be found to have been waived.’”

Spanich, 90 Ohio App.3d at 154, quoting Novelli, 278 Pa.Super. at 149.

Nonetheless, “‘if the consent to the original site was based upon the understanding

that the site would be maintained so that the surviving spouse could also be buried

there, and later events make it impractical to carry out that understanding, the

consent to the original site may be vitiated.’” Id., quoting Novelli at 150. Here,

Charlene’s consent to William’s interment at Arcadia Cemetery was ostensibly

conditioned on the understanding that, when she died, she would be buried next to

William in the family plot, a condition which was effectively nullified by Linda’s


                                        -13-
Case No. 5-17-30


July 11, 2017 letter. (See Oct. 3, 2017 Tr. at 44-45, 59). Thus, it is unlikely that

Charlene would have been barred from reinterring William’s remains by operation

of waiver.

       {¶28} Although the trial court heard testimony and received evidence

responsive to each of these three concerns about Charlene’s conduct, it did not

conclude that Charlene acted indecently or with ill-intent by reinterring William in

Van Buren. (See Doc. No. 54). In sum, there is competent, credible evidence

supporting the trial court’s conclusion that Charlene did not act outside the bounds

of acceptable conduct.

       {¶29} In light of the foregoing, there is competent, credible evidence

supporting the trial court’s application of the factors described in Frobose.

Therefore, the trial court’s decision that those factors weighed against disinterring

William’s remains is not against the manifest weight of the evidence. Accordingly,

the trial court did not abuse its discretion in denying Linda’s petition.

       {¶30} Linda’s assignment of error is, therefore, overruled.

       {¶31} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr


                                         -14-
