[Cite as In re Disinterment of Swing, 2014-Ohio-5454.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


In re Disinterment of Jean E. Swing                      Court of Appeals No. L-14-1036

                                                         Trial Court No. 2012 DIS 2324


                                                         DECISION AND JUDGMENT

                                                         Decided: December 12, 2014


                                                 *****

        Thomas G. Pletz, for appellants.

        Alan Kirshner, for appellee.

                                                 *****
        YARBROUGH, P.J.

                                             I. Introduction

        {¶ 1} Appellants, John Swing, Sr., and Michael Swing, appeal the judgment of the

Lucas County Court of Common Pleas, Probate Division, granting a Disinterment

Application filed by appellee, Michael Swing, III. We affirm.
                         A. Facts and Procedural Background

       {¶ 2} The underlying facts in this case are undisputed. Thus, the issue is whether

the probate court erred in granting appellee’s application to have the cremains of his

father, John Swing, Jr., disinterred and transferred to him. John Swing, Sr. and Michael

Swing are appellee’s grandfather and uncle, respectively. John Swing, Sr. opposes

appellee’s application in his individual capacity and as executor of the estate of Jean

Swing (Swing Sr.’s wife) and John Swing, Jr. Since appellee is a minor, his application

for disinterment was filed through his mother, Penny Pepper.

       {¶ 3} On March 14, 2007, Swing, Jr. died and was subsequently cremated. Swing,

Sr., who paid for the majority of the cremation and funeral services, received a summary

release from administration from the probate court, at which point he took possession of

Swing, Jr.’s only asset, a 1991 Dodge van. Appellee, being a minor at the time, was not

listed as next of kin on the probate documents. Consequently, Swing, Jr.’s cremains were

given to Swing, Sr. and Jean Swing.

       {¶ 4} Sometime after his father’s death, appellee attended an event at Swing, Sr.’s

home where he saw a box containing Swing, Jr.’s cremains. Appellee testified that he

requested his father’s cremains at that time. However, Jean told appellee, “your dad’s

going to stay with me, because he’s my baby.”

       {¶ 5} On September 22, 2009, Jean passed away. Prior to Jean’s burial, appellee

once again requested Swing, Jr.’s ashes, but his request was denied by Swing, Sr. and

Michael. Instead of allowing appellee to have his father’s ashes, Michael asked a funeral




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home worker to place the ashes inside Jean’s casket. Having no knowledge of the ashes

inside the casket, the cemetery workers proceeded to bury the casket according to normal

procedures. The burial was performed in contravention of cemetery policy requiring a

permit to bury two people in one grave. Further, Swing, Jr. is not listed on Jean’s

headstone.

       {¶ 6} Three years after Jean’s burial, appellee engaged in an internet conversation

with his cousin, Mallory (Michael’s daughter), regarding Swing, Jr.’s cremains. He

expressed a desire to have his father close to him so that he could talk to his father.

However, Mallory informed appellee that he would need to visit Jean’s grave because

Swing, Jr.’s cremains were buried there. This was the first time appellee or Pepper had

heard that Swing, Jr.’s cremains were buried alongside Jean’s body.

       {¶ 7} Eventually, on October 25, 2012, Pepper filed an application for

disinterment on behalf of appellee. A hearing was held on the application before a

magistrate on October 1, 2013. Appellee, as well as Pepper, Michael, and the cemetery

manager, Jason Bonomo, testified at the hearing. At the conclusion of the hearing, the

magistrate found that appellee, as Swing, Jr.’s sole heir at law, was entitled to the

cremains in 2007. Thus, the magistrate determined that the application should be

granted.

       {¶ 8} Appellants filed objections to the magistrate’s decision on October 18, 2013.

However, the probate court overruled appellants’ objections and adopted the magistrate’s

decision. Appellants then moved the court for a new trial, arguing that the magistrate




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failed to properly apply this court’s decision in In re Disinterment of Frobose, 163 Ohio

App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 (6th Dist.). On January 31, 2014, the

probate court denied appellants’ motion for a new trial, stating: “Without specifically

mentioning Frobose, 2005-Ohio-5025, the magistrate’s decision addressed the factors to

allow disinterment in this case.”

                                B. Assignments of Error

       {¶ 9} On February 28, 2014, appellants’ filed their notice of appeal, assigning the

following errors for our review:

              ASSIGNMENT OF ERROR NO. 1: The Lucas County Probate

       Court below committed reversible error as a matter of law in failing to

       follow the equitable disinterment principles enunciated by the Sixth District

       Court of Appeals in In re Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025,

       840 N.E.2d 249 (6th Dist.).

              ASSIGNMENT OF ERROR NO. 2: The Lucas County Probate

       Court below committed reversible error as a matter of law in ignoring the

       legal rights of the Appellants to possess John Swing, Jr.’s remains, to which

       they were and are now entitled, under the 2006 Ohio “Right to Disposition”

       statute, R.C. 2108.81.

       {¶ 10} Because these assignments of error are interrelated, we will address them

simultaneously.




4.
                                        II. Analysis

             A. Abuse of discretion is the appropriate standard of review.

       {¶ 11} Before delving into the merits of the parties’ arguments, we must resolve

their disagreement concerning the appropriate standard of review to be applied in this

case. Appellants contend that this case turns entirely on a question of law. Thus,

appellant asserts, we should apply a de novo standard of review. Appellee, for his part,

argues that the appropriate standard of review is abuse of discretion, since we are

reviewing the probate court’s grant of an application for disinterment.

       {¶ 12} This issue has already been addressed in Frobose, supra. In Frobose, we

stated that “[a] probate court’s decision regarding the request for disinterment may not be

reversed absent an abuse of discretion.” Frobose at ¶ 17, citing In re Disinterment of

Ervin, 4th Dist. Scioto No. 96 CA 2466, 1997 WL 156625 (Mar. 31, 1997). Moreover,

we note that R.C. 517.24(3)(a) speaks to the probate court’s discretion in deciding

whether to grant an applicant’s request for disinterment, stating, “the court, in its

discretion, may issue an order for disinterment of the decedent’s remains if good cause

for disinterment is shown.” (Emphasis added). Thus, we reiterate our statement in

Frobose and conclude that the appropriate standard of review for appeals challenging a

probate court’s decision on an application for disinterment is abuse of discretion. An

abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When




5.
applying this standard, a reviewing court may not merely substitute its judgment for that

of the trial court. Frobose at ¶ 17, citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559

N.E.2d 1301 (1990).

                   B. The probate court did not abuse its discretion in
                    granting appellee’s application for disinterment.

        {¶ 13} In their first assignment of error, appellants contend that the probate court

failed to apply the equitable factor-based test that we adopted in Frobose to govern

disinterment requests. Further, in their second assignment of error, appellants argue that

the probate court erroneously failed to apply R.C. 2108.81 in this case.

        {¶ 14} We begin by examining appellants’ argument that the probate court failed

to evaluate each factor outlined in Frobose prior to arriving at its decision granting

appellee’s application for disinterment.

        {¶ 15} The governing statute in this case, R.C. 517.24(B)(1), provides, in relevant

part:

               Any person who is eighteen years of age or older and of sound mind,

        including, but not limited to, the person who assumed financial

        responsibility for the funeral and burial expenses of the decedent, 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.




6.
       {¶ 16} In determining a request for disinterment, we apply an equity standard,

which involves the consideration and weighing of several factors. Frobose, 163 Ohio

App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 at ¶ 16, citing Spanich v. Reichelderfer,

90 Ohio App.3d 148, 152, 628 N.E.2d 102 (2d Dist.1993). In Frobose, we set forth the

following non-exhaustive list of factors to be considered:

              (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 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. Id. at ¶ 16, citing Spanich at

       152–155.1

       {¶ 17} Appellants state that they “asked the court below several times to apply the

Frobose factors, but the [court] never considered them factor by factor.” Appellee, for

his part, argues that the probate court properly applied the factors in rendering its

decision, albeit without explicitly identifying the facts that were relevant to each

1
  These factors were first enunciated in Novelli v. Carroll, 278 Pa.Super. 141, 420 A.2d
469 (1980), a case involving a surviving spouse’s request to remove her deceased
husband from one burial plot in order to reinter him at another cemetery. While this case
involves the disinterment of cremains rather than their “reinterment” as that term is used
in the list of factors, the distinction does not impact our analysis of this case or the
usefulness of the factors to actions involving disinterment.



7.
individual factor. Upon careful examination of the probate court’s decision, along with

the magistrate’s decision upon which the court’s decision was based, we cannot say that

the court abused its discretion in granting appellee’s disinterment application.

          {¶ 18} As to the first factor, the applicant’s relationship to the decedent, we note

that appellee is Swing, Jr.’s sole child. This fact was not lost on the probate court.

Indeed, the magistrate’s decision indicates: “John Swing, Jr. died leaving a sole heir and

next of kin for inheritance purposes: his son, John Swing, III.” The decision makes

several mentions of the fact that appellee is Swing, Jr.’s only son and concludes that, as

such, appellants “should not have withheld the ashes deliberately from [appellee] though

he asked for them more than once, and at different times or circumstances.” The probate

court’s decision echoes this sentiment, stating that appellee, “the sole heir, asked for his

father’s ashes on more than one occasion, and was denied them, even at his

grandmother’s funeral.” In light of the numerous references to appellee as “the sole heir”

and Swing, Jr.’s only son, we find that the probate court properly considered the first

factor.

          {¶ 19} Next, we turn to the second factor, the objecting party’s relationship to the

decedent. Once again, the magistrate’s decision accurately sets forth Swing, Jr.’s

relationship to each of the appellants. However, the probate court chose to place more

weight on appellee’s relationship to Swing Jr. This decision is supported by the record at

least insofar as Michael is concerned, because testimony elicited at the hearing reveals




8.
that Michael had very little, if any, contact with Swing, Jr. for the five years preceding

Swing, Jr.’s death. In any event, it is clear that the second factor was considered by the

probate court.

       {¶ 20} Concerning the third factor, the desire of the decedent, the probate court

adopted the magistrate’s finding that “there was no credible basis for [Michael’s]

assertion that his brother had told him what he wanted done with his ashes.” (Emphasis

sic.) Further, the magistrate’s decision states: “The only ‘ascertainable desire’ logically

is that John Swing, Jr. would have wanted to leave his ashes to his only son, [appellee],

whom he loved.” Thus, we find that the probate court considered the evidence that was

presented relevant to the third factor.

       {¶ 21} The fourth factor, the applicant’s conduct, was also considered by the

probate court. In its decision, the probate court pointed out the fact that appellee asked

appellants for his father’s cremains on numerous occasions, but his requests were denied.

Moreover, appellee was never told where Swing, Jr.’s cremains were placed after Jean’s

funeral. Instead, he learned that the cremains were buried inside Jean’s casket via a

Facebook conversation with Mallory. Upon learning of the whereabouts of his father’s

cremains, appellee relayed the information to Pepper. In light of the foregoing, we

conclude the court properly considered the fourth factor.

       {¶ 22} Likewise, the probate court considered the fifth factor, the conduct of the

persons seeking to prevent disinterment. Relevant to this factor, the court found that Jean

wrongfully possessed Swing, Jr.’s cremains and refused to give them to appellee upon




9.
request, despite his status as Swing, Jr.’s sole heir. Further, the court considered

evidence presented at the hearing that Michael ordered Swing, Jr.’s cremains placed in

Jean’s casket in violation of cemetery policy concerning double burials. Michael at first

attempted to deny any involvement in placing the cremains inside the casket, but later

admitted that he asked funeral home officials to do so. In light of this evidence, it is clear

that the court considered the fifth factor in arriving at its decision.

       {¶ 23} Under the sixth factor, the probate court is directed to consider the length

of time that has elapsed since the original interment. Here, several years had elapsed

from the time Swing, Jr.’s cremains were placed in Jean’s casket and buried until Pepper

filed the application for disinterment. Appellants contend that Pepper, as applicant for

appellee, “slept on her rights” by waiting so long to file the application. However, the

probate court considered this argument, ultimately concluding that information

concerning the location of Swing, Jr.’s cremains was withheld from appellee until

“several years” after Jean’s burial. Notably, this action was filed three years after Jean’s

burial. Thus, any passage of time between the internment of Swing, Jr.’s cremains and

the filing of this action is attributable to appellants’ failure to inform appellee of their

actions regarding his father’s cremains. We find that the probate court considered the

sixth factor.

       {¶ 24} Finally, the seventh factor focuses on the reasons offered both in favor of

and in opposition to disinterment. At the hearing, Michael indicated that he objected to

the disinterment because “it’s not what [Swing, Jr.] wanted, or my mother, Jean Swing,




10.
wanted.” However, it became clear as Michael’s testimony continued that he had not

spoken to Swing, Jr. for five years, thus calling into question his ability to know what

Swing, Jr. wanted. Michael also objected to the disinterment on the basis that the “ashes

are already buried. It’s ridiculous.”2 As to appellee’s reasons, the probate court was

sensitive to the fact that appellee appeared to want to “recover all that he has left of his

dad: his ashes.” Clearly, the probate court considered the evidence bearing upon the

seventh factor.

       {¶ 25} In light of the foregoing, we find that the probate court properly considered

the evidence as it related to each of the seven factors set forth in Frobose. Having

considered the factors ourselves, we cannot say that the probate court’s decision to grant

appellee’s application was unreasonable, arbitrary, or unconscionable. Accordingly,

appellants’ first assignment of error is not well-taken.

       {¶ 26} Next, we turn to appellants’ argument concerning the applicability of R.C.

2108.81. R.C. 2108.81 lists those individuals entitled to dispose of a decedent’s remains

following death where the decedent has not himself assigned the right of disposition to

someone prior to death using a written declaration under R.C. 2108.70 to 2108.73. R.C.

2108.81(B) assigns the right of disposition in order of priority, as follows:



2
  Throughout their appellate brief, appellants argue that the application should be denied
because appellee has no right to disinter Jean’s remains in an effort to secure Swing, Jr.’s
cremains. We are unpersuaded that the probate court’s decision should be reversed on
this basis, however, because disinterment of Swing, Jr.’s cremains would not require
raising Jean’s casket if Michael would not have insisted that the two be buried together in
the first place.



11.
              (B) Subject to division (A) of this section and sections 2108.75 and

       2108.79 of the Revised Code, the right of disposition is assigned to the

       following persons, if mentally competent adults who can be located with

       reasonable effort, in the order of priority stated:

              (1) The deceased person’s surviving spouse;

              (2) The sole surviving child of the deceased person or, if there is

       more than one surviving child, all of the surviving children, collectively;

              (3) The deceased person’s surviving parent or parents;

              * * *.

       {¶ 27} “The ‘right of disposition’ refers to the right to direct the disposition of a

deceased person’s body, to make and purchase funeral arrangements, and to make

arrangements for burial, cremation, or other manner of final disposition of the body.”

Federman v. Christ Hosp., 1st Dist. Hamilton No. C-120484, 2013-Ohio-5507, ¶ 2, citing

R.C. 2108.70(A)(4).

       {¶ 28} Here, appellants argue that, under R.C. 2108.81, Swing, Sr. and Jean, as

Swing, Jr.’s surviving parents, were vested with a right of disposition over Swing, Jr.’s

cremains. They note that although appellee is Swing, Jr.’s sole surviving child, he is not

entitled to the right of disposition because he is not a “mentally competent adult.”

Moreover, appellants contend that the right of disposition encompasses the decision to

place Swing, Jr.’s cremains inside Jean’s casket prior to burial, a decision that cannot

now be undone through a request for disinterment under R.C. 517.23.




12.
       {¶ 29} Appellee, for his part, acknowledges that Jean and Swing, Sr. were entitled

to dispose of Swing, Jr.’s body after his death under R.C. 2108.81. However, appellee

argues that R.C. 2108.81 is inapplicable to this proceeding because the right was

exercised when Jean and Swing, Sr. decided to cremate Swing, Jr. Appellee contends

that the right of disposition was extinguished at that moment, and suggests that any other

interpretation of the statute would involve expanding the right of disposition into a right

of perpetual redisposition. Further, appellee asserts that disinterment would not encroach

upon the surviving parents’ right of disposition, because it was Michael who placed the

cremains into the casket, not Jean or Swing, Sr.

       {¶ 30} Whether a person’s right of disposition under R.C. 2108.81 precludes a

probate court from granting a third party’s application for disinterment under R.C. 517.23

appears to be a matter of first impression in Ohio. However, our decision in Frobose is

helpful in resolving this question. In Frobose, a case that predates the enactment of R.C.

2108.81, we concluded that a surviving spouse’s right of disposition with regard to burial

of her husband did not automatically entitle her to have her husband’s remains

disinterred. Specifically, we stated that a surviving spouse’s right of disposition, for

purposes of burial, “is not absolute, but is subject to judicial control.” Frobose, 163 Ohio

App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 at ¶ 15. We went on to examine the

merits of the surviving spouse’s request for disinterment through the use of several

equitable factors. Ultimately, we found that the probate court did not abuse its discretion

when it denied the surviving spouse’s application for disinterment. Id. at ¶ 26.




13.
       {¶ 31} In light of our statements in Frobose, we conclude that the right of

disposition under R.C. 2108.81 does not preclude a probate court from granting an

application for disinterment where the equities weigh in favor of doing so. While we

recognize that our decision in Frobose did not involve an examination of a right of

disposition under R.C. 2108.81 (which had not yet been enacted), we are not persuaded

that R.C. 2108.81 nullifies the equitable standard embodied in the decision. Accordingly,

appellants’ second assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 32} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas, Probate Division, is affirmed. Appellants are ordered to pay the costs of

this appeal pursuant to App.R. 24.

                                                                      Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



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