      MEMORANDUM DECISION                                              FILED
                                                                  Jun 21 2016, 6:50 am

      Pursuant to Ind. Appellate Rule 65(D),                           CLERK
      this Memorandum Decision shall not be                        Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT
      William Joseph Jenner
      Jenner, Pattison, Sutter & Wynn, LLP
      Madison, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ed Mitchell,                                             June 21, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               72A05-1510-MI-01810
              v.                                               Appeal from the Scott Circuit
                                                               Court
      Keith Smith and Mt. Zion                                 The Honorable Roger L. Duvall,
      Cemetery,                                                Judge
      Appellees-Respondents                                    Trial Court Cause No.
                                                               72C01-1505-MI-57



      Mathias, Judge.


[1]   Ed Mitchell (“Mitchell”) filed a petition in Scott Circuit Court requesting

      permission to change his deceased wife’s place of interment. Keith Smith

      (“Smith”), the deceased’s father, asked the court to deny Mitchell’s petition.

      The trial court denied the petition, and Mitchell appeals. Mitchell argues that
      Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016    Page 1 of 8
      Smith’s consent to his petition to disinter was not required under Indiana Code

      section 23-14-57-1.

[2]   We affirm.


                                       Facts and Procedural History

[3]   Mitchell and his wife, Kimberly, were married in 1985. In January 2014,

      Kimberly was hospitalized, and she passed away on January 23. Hours before

      her death, Kimberly was asked if she would like to be buried in her family’s plot

      at Mt. Zion Cemetery in Paynesville, Indiana. Kimberly’s father, Smith, offered

      Mitchell two cemetery lots in the Smith family’s burial plot. The parties agree

      that Kimberly agreed to be buried with her family in Mt. Zion Cemetery.

[4]   Mitchell lacked the financial resources to timely purchase a headstone for his

      wife’s grave. He had planned to purchase a dual headstone for himself and his

      wife to be placed on the two cemetery lots in the Smith burial plot. Smith never

      transferred ownership of the lots to Mitchell.

[5]   In February 2015, Mitchell claims that he arranged to purchase a dual

      headstone for his wife’s grave.1 However, unbeknownst to Mitchell, a single

      headstone was purchased by Kimberly’s sisters and one of Mitchell and

      Kimberly’s sons and placed on her grave. After Mitchell made this discovery,




      1
        Mitchell and Kimberly’s son sent a letter to the trial court which was “file stamped,” and the letter was
      included in the Appellant’s Appendix even though it was never admitted into evidence. In the letter,
      Mitchell’s son stated that Mitchell never attempted to purchase the headstone. Appellant’s App. p. 7.

      Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016                Page 2 of 8
      the headstone marking Kimberly’s grave was vandalized. Mitchell denied

      involvement in the act of vandalism, and no charges were filed against him.

[6]   Shortly thereafter, Mitchell purchased two burial lots in Franklin Cemetery in

      Washington County. On May 20, 2015, Mitchell filed a “Verified Petition to

      Change Place of Interment” in Scott Circuit Court requesting permission to

      reinter Kimberly’s casket and remains in Franklin Cemetery. Mitchell also

      informed Smith and Mt. Zion Cemetery that he had filed the petition. On June

      29, 2015, Smith responded to Mitchell’s petition and requested that Mitchell

      “take nothing by way of [his] Petition and for all other relief just and proper in

      the premises.” Appellant’s App. p. 6.

[7]   A hearing was held on Mitchell’s petition on July 31, 2015. Mitchell testified

      that Smith and his family had interfered with his ability to visit, care for, and

      place a headstone on Kimberly’s grave. Tr. pp. 13-15. Smith said he would

      allow Mitchell to put a double headstone on Kimberly’s grave and be buried

      next to her but only if Mitchell would agree that only Mitchell could be buried

      in the plot next to Kimberly’s plot. Tr. p. 21.


[8]   On September 25, 2015, the trial court denied Mitchell’s petition to change

      Kimberly’s place of interment. Specifically, the court found in pertinent part:


              3. In the present case, it is clear from the evidence that all parties
              were agreeable to Kim being buried in the Mt. Zion Cemetery.
              There were discussions about Kim being buried in the Mt. Zion
              Cemetery by all the family members including Petitioner and
              Respondent.


      Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 3 of 8
              4. The parties, and Petitioner in particular, were able to discuss
              with Kim her burial in Mt. Zion Cemetery before she passed
              away. Kim was agreeable to that place of burial. Kim had a
              brother buried at Mt. Zion Cemetery plus Respondent agreed to
              make two burial plots available so that in the future, Petitioner
              could be buried beside his wife.


              5. There is no evidence that the initial selection of the burial site
              was made with reservation. It was made with everyone’s
              agreement. More importantly, Mt. Zion Cemetery is where Kim
              expected her final resting place to be in those final hours of her
              life.


              6. The wish and expectation of Kim should be respected
              regardless of the deterioration of the relationship between
              Petitioner and Respondent.


              7. The Petition to Change Place of Interment is denied. In
              keeping with the original understanding, Respondent is obligated
              to reserve the second burial plot beside Kim for her husband, the
              Petitioner’s use. That was also what Kim expected at her time of
              death.


      Appellant’s App. pp. 8-9. Mitchell now appeals.


                                           Standard of Review

[9]   Smith has not filed an Appellee’s brief, and we will not undertake the burden of

      developing arguments for him. See Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind.

      Ct. App. 2014). Instead, we apply a less stringent standard of review and will

      reverse upon a showing of prima facie error, which is error “at first sight, on

      first appearance, or on the face of it.” Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind.


      Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 4 of 8
       Ct. App. 2006). However, we are still obligated to correctly apply the law to the

       facts in the record in order to determine whether reversal is required. Jenkins, 17

       N.E.3d at 352.


                                         Discussion and Decision

[10]   Mitchell argues that the trial court was required to grant his petition under the

       Disinterment Statute, Indiana Code section 23-14-57-1. The statute provides in

       pertinent part:


               (a) As used in this section, “removal” or “removed” refers to the
               disinterment, disentombment, or disinurnment of the remains of
               a deceased human.

               (b) Except as provided in subsection (e) and sections 4 and 5 of
               this chapter, the remains, either cremated or uncremated, of a
               deceased human shall not be removed from a cemetery without:

                        (1) a written order:

                                (A) that is issued by the state department of health;
                                and

                                (B) that authorizes the removal of the deceased's
                                remains;

                        (2) the written consent of:

                                (A) the owner of the cemetery; or

                                (B) the owner's representative; and

                        (3) the written consent of a person or persons referred to in
                        one (1) of the following clauses, which are listed according
                        to priority:



       Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 5 of 8
                                (A) The individual who was the spouse of the
                                deceased at the time of the deceased's death.

                                (B) The surviving adult child of the deceased. . . .

                                (C) The surviving parent of the deceased. . . .


[11]   Mitchell argues that “on the face of this statute, Appellant had the ability to

       remove his wife’s remains so long as he satisfied the above requirements.”

       Appellant’s Br. at 7. “However, a person specified in the disinterment statute

       does not have an absolute right to disinter remains as a matter of law, and rights

       of others who oppose disinterment may be considered.” Warren v. IOOF

       Cemetery, 901 N.E.2d 615, 619 (Ind. Ct. App. 2009), trans. denied (citing Hickey

       v. Hickey, 156 Ind. App. 610, 614, 298 N.E.2d 29, 31 (1973)). “‘Once relief is

       sought in the courts . . . the right to disinter is within the sound discretion of the

       trial court.’” Id. (quoting Hickey, 156 Ind. App. at 614, 298 N.E.2d at 31)

       (emphasis added). Therefore, whether Mitchell should be permitted to disinter

       Kimberly over the objection of her father is an issue addressed to the equitable

       discretion of the trial court. See id. at 619. “It is well-established in the United

       States that disinterment and removal is within the province of equity.” Hickey,

       156 Ind. App. at 614, 298 N.E.2d at 31 (citation omitted).


[12]   We observe that Mitchell sought relief in the courts and named Smith as a party

       in the action. Therefore, we are not persuaded by Mitchell’s argument that

       Smith was required to file an objection to his petition or a request for an

       injunction. Smith’s responsive pleading requests that Mitchell “take nothing by

       way of” his petition. Appellant’s App. p. 6.

       Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 6 of 8
[13]   Furthermore, in his petition, Mitchell alleged that he “notified Keith Smith and

       Mt. Zion Cemetery of this Petition.” Appellant’s App. p. 4. However, Indiana

       Code section 23-14-57-1 requires a written order from the State Department of

       Health and written consent of cemetery’s owner or representative. Mitchell has

       not obtained either the order or the consent, and therefore, when he filed his

       petition to change Kimberly’s place of interment, he had not satisfied the

       requirements listed in Indiana Code section 23-14-57-1.


[14]   Because Mitchell has sought relief in the courts, we consider whether the trial

       court abused its equitable discretion when it denied his petition. Our court has

       previously considered the following four factors in reviewing trial court orders

       concerning disinterment:


               (1) whether the initial resting place was made with deliberation
               and without mental reservation that at some future time removal
               might be desired; (2) whether there are evidences of antagonism
               and hostility between the surviving spouse and the owners of the
               tomb or burial plot such as would prevent the surviving spouse
               from visiting the grave freely and without embarrassment or
               humiliation; (3) whether the deceased spouse had evidenced a
               preference for one location as opposed to another; and (4)
               whether the disinterment would conflict with the deceased
               person’s religious beliefs.


       See Hickey, 156 Ind. App. at 615-16, 298 N.E.2d at 32.


[15]   In this case, Kimberly chose and expected to be buried in her family’s burial

       plot in Mt. Zion Cemetery. Although Kimberly died hours after making that

       decision, no evidence indicates that she was not of sound mind when the

       Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 7 of 8
       decision was made. Importantly, both Mitchell and Smith also agreed to inter

       Kimberly in the Smith family burial plot at Mt. Zion Cemetery.

[16]   The relationship between the Smith family and Mitchell has deteriorated. At

       least in part, the hostility between the parties is the result of Mitchell’s failure to

       place a headstone on Kimberly’s grave. However, at the hearing, Smith agreed

       that Mitchell could be buried next to Kimberly. Smith also did not object to

       Mitchell placing a double headstone on the two plots. Smith’s overriding

       concern was that if he transferred the plot next to Kimberly’s to Mitchell, that

       Mitchell might transfer the lot to another person. See tr. p. 23.


[17]   Our review of the record leads us to conclude that although the parties’

       relationship has become antagonistic, Mitchell did not establish that Smith has

       prevented, or will prevent, him from visiting Kimberly’s grave. Importantly,

       Smith agreed to allow Mitchell to be buried next to Kimberly upon his death, if

       he so desires. This was also Kimberly’s expectation at the time of her death. For

       all these reasons, we conclude the trial court acted within its equitable

       discretion when it denied Mitchell’s “Petition to Change [Kimberly’s] Place of

       Interment.”

[18]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 72A05-1510-MI-01810 | June 21, 2016   Page 8 of 8
