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Marino v. Marino

September 24, 2009

JOAN MARINO, PLAINTIFF-RESPONDENT,
v.
LARRY L. MARINO, JR., BRETT MARINO, JENNIFER MARINO, JOHN MARINO AND DOROTHY MARINO, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must interpret the provisions in the New Jersey Cemetery Act of 2003, N.J.S.A. 45:27-1 to -38, governing interment, N.J.S.A. 45:27-22, and disinterment, N.J.S.A. 45:27-23 in a dispute between a decedent's surviving spouse and children about decedent's final resting place. Specifically raised is the question of whether the statutory provision that invests a surviving spouse with the authority to designate a place of interment, absent a contrary written declaration, also gives the spouse primacy in demanding disinterment notwithstanding statutory language to the contrary.

Plaintiff Joan Marino married the decedent Larry Marino, Sr. in 1982. Decedent had two children from a prior marriage and four children with Joan. When decedent died in October 2005, two of his children with Joan were still minors. The other four, all defendants in this litigation, were two adult children from his prior marriage, Larry Jr. and Brett, and two of his adult children with Joan, Jennifer and John. During the final years of the marriage, the relationship between Joan and decedent had deteriorated, although the couple had not formally separated or divorced. Decedent's will appointed Larry Jr. and Jennifer as co-executors. The will did not contain instructions in respect of where decedent wanted to be buried. Larry Jr. consulted an attorney who advised him that, as co-executor, he was authorized to decide questions concerning the disposition of his father's remains. Larry Jr. and Jennifer believed that their father wished to be buried in a cemetery plot owned by defendant Dorothy, decedent's mother. That plot is where Dorothy eventually will be buried and is also near where decedent's father is buried. Joan wanted decedent to be buried in a plot in the same cemetery that she and decedent had acquired through her mother and where she intends to be buried in the future. The plot is near her family's plots and is located about forty feet away from decedent's family's plots.

In a meeting two days after the death, the adult children informed Joan that they were unanimous in their desire to accommodate their father's wish to be buried in his mother's plot. Although Joan asserted that she had the right to decide as the surviving spouse, Larry Jr. countered that the authority rested with the co-executors. On October 27, 2005, decedent was buried in the plot owned by his mother and near the one where his father is buried. While Larry Jr. claims that the parties reached a compromise, Joan contends Larry Jr. threatened to bar her from the funeral home and services if she did not capitulate.

Eight months after the burial, in June 2006, Joan filed a Verified Complaint and Order to Show Cause seeking authorization from the Chancery Division to disinter decedent's remains and rebury them in the plot that she preferred. A Chancery judge presided over two days of hearings, wherein numerous witnesses testified about the state of the marriage and decedent's expressed desires regarding his final resting place. On November 29, 2006, the court issued its written opinion based on two essential findings of fact. First, the court found that Joan had not voluntarily agreed to allow decedent to be buried where he was, having been unduly pressured to give in under overwhelming circumstances. Second, the court found that decedent's clear intention was that his remains be buried near his father's plot, that he did not want to be buried near Joan's family's plot, and that, once buried he would not want his remains disinterred.

Applying the law to those findings of fact, the trial court acknowledged that because decedent had not appointed anyone in the will to decide the disposition of his remains, Joan, the surviving spouse, was authorized to make that decision. Nevertheless, the court determined that the issue was whether the remains should be disinterred rather than who was initially empowered to act. The court considered the disinterment statute controlling, noting that the interment statute requires compliance with a decedent's preference only if it is expressed in the will while there is no similar limitation on the court's equitable power to decide the question of disinterment. The court denied Joan's application, concluding that decedent's preference for burial was paramount and that his desire to be buried with his family, coupled with the desire not to be disinterred, should be enforced despite Joan's contrary wishes.

On appeal, a majority of the Appellate Division reversed, concluding that Joan should be able to disinter the remains and move them to the plot of her choosing. According to the majority, decedent had not made his wishes known through a testamentary provision; therefore, Joan, as his surviving spouse, had the right to decide his burial site and defendants had violated that statutorily-protected right. The majority reasoned that the disinterment statute, although silent about the effect to be given to a decedent's expression of intent, should be read in pari materia with the interment statute. That analysis led the majority to conclude that, in matters relating to disinterment, a spouse's interest should be outweighed only by a testamentary expression of decedent's intent. According to the majority, the trial court erred in giving primacy to decedent's intent and that a balancing of Joan's statutory right and defendants' actions in depriving her of that right was sufficient to overcome the general preference against disinterment. Judge Stern dissented, reasoning that the majority had erred in using the in pari materia analysis. In Judge Stern's view, the two statutory sections should be read independently of each other. In addition, the dissent found that the trial court's decision was based on substantial credible evidence in the record and resulted from the proper application of relevant legal principles and statutory principles.

Defendants appealed to the Supreme Court as of right based on the dissent in the Appellate Division.

HELD: The plain language of the statutory provisions relating to interment and disinterment expresses that a different regulatory scheme applies to each; therefore, the Appellate Division erred in determining that the provisions must be read in pari materia.

1. The subject of burial has been addressed by our Legislature since 1851. In the most recent legislative enactment, the Cemetery Act of 2003, the language of the disinterment provision demonstrates several clear differences between it and the provision governing interment. First, there is a strong preference against disinterment. Second, the authority to disinter is not vested in the surviving spouse alone, as it is in the interment provision, but rather is given to the "surviving spouse, adult children and the owner of the interment space," who must give their authorization both jointly and in writing. Third, the power of the court to act in a manner contrary to the statute is expressly preserved. (Pp. 10-19)

2. The role of the Court in statutory interpretation is to determine and effectuate the intent of the Legislature. If the plain language of a statute is unclear or is susceptible to more than one interpretation, courts may look to extrinsic sources to assist in interpreting the meaning of the statute. A tool of statutory construction provides that statutes are to be considered in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. In an effort to make statutes harmonious, a court must avoid straining to make consistent statutes to which the Legislature's choice of words demonstrates a contrary intent. In attempting to find harmony, the majority of the appellate panel overlooked the obvious intention of the Legislature to approach interment and disinterment differently, resulting in the panel substituting its view of what would be consistent. Evidence of the Legislature's intent that the disinterment statute be read as a separate mechanism can be found in its plain language, in the legislative history, and in its common sense application. (Pp. 19-26)

3. The language of the disinterment statute expresses a legislative preference against disinterment and makes plain that the surviving spouse's wishes are not paramount. The statutory position is reduced from a position of having primary authority to inter to one of sharing authority to disinter equally with all surviving adult children. When viewed in accordance with the disinterment statute, the trial court was entitled to weigh the views of decedent along with those of all the survivors. The preference about burial attributed to decedent was also the preference of all the surviving adult children. Seen in that context, Joan's preference was insufficient as a matter of law. (Pp. 26-31)

Judgment of the Appellate Division is REVERSED.

JUSTICE RIVERA-SOTO, dissenting, is of the view that because the surviving spouse never validly waived her statutory rights and the original interment was procured either by fraud or mutual mistake in violation of clear and unambiguous legislative dictates, the majority's reasoning, albeit correct, is irrelevant. Further, the result reached by the majority rewards the wrongdoer, a result that runs counter to this Court's lengthy equitable traditions and, more importantly, its fundamental obligations. Justice Rivera-Soto dissents for those reasons and substantially for the reasons expressed in the majority opinion of the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN and WALLACE join in JUSTICE HOENS' opinion. JUSTICE RIVERA-SOTO filed a separate dissenting opinion.

The opinion of the court was delivered by: Justice Hoens

Argued January 6, 2009

This appeal, which comes before the Court as of right based on the opinion of the dissenting Appellate Division judge, requires the Court to interpret the provisions in the New Jersey Cemetery Act of 2003, N.J.S.A. 45:27-1 to -38, governing interment, N.J.S.A. 45:27-22, and disinterment, N.J.S.A. 45:27-23. Specifically, this dispute, between a decedent's surviving spouse and children about his final resting place, raises the question of whether the statutory provision that invests a surviving spouse with the authority to designate a place of interment, absent a contrary written declaration in the decedent's will, also affords that spouse primacy in demanding disinterment notwithstanding statutory language to the contrary.

Because we conclude that the plain language of the statutory provisions relating to interment and disinterment expresses that a different regulatory scheme applies to each, we agree with the dissenting judge, and we conclude that the appellate panel's majority view, that the provisions must be read in pari materia, was in error.

I.

The facts that are germane to our analysis are as follows. Plaintiff Joan Marino married the decedent Larry Marino Sr. in 1982. At the time, he had two children from a prior marriage, and he thereafter had four children with plaintiff. When decedent died in October 2005, two of his children with plaintiff, Nicholas and Daniel, were still minors. The other four, all defendants in the litigation, were the two children from his prior marriage, Larry Jr. and Brett, and two of his children with plaintiff, Jennifer and John.

During the final years of the marriage, the relationship between plaintiff and decedent had deteriorated, although they had not divorced or formally separated. Decedent's will, which contained no instructions concerning where he wanted to be buried, appointed Larry Jr. and Jennifer to be his co-executors. Larry Jr. consulted with an attorney who advised him that, as a co-executor, he was authorized to decide questions concerning the disposition of decedent's remains.

Larry Jr. and Jennifer believed that their father wished to be buried in a cemetery plot owned by defendant Dorothy, who is decedent's mother and their grandmother. That plot is where Dorothy will eventually be buried and is also near where decedent's father was already buried. Plaintiff, however, disagreed. She wanted decedent to be buried in a plot in the same cemetery that she and decedent had acquired through her mother and where she intends to be buried eventually as well. That plot is near her family's plots and is located about forty feet away from decedent's family's plots.

During a meeting among the parties two days after the death, the adult children and Daniel told plaintiff that they had voted unanimously to have their father buried in his mother's plot, arguing that it had been his preference to be there, rather than with plaintiff's family. Plaintiff, however, insisted that she and decedent had purchased the other plot, intending to be buried there, and that she did not want to be buried with decedent's family. The children countered by pointing out that the marriage had disintegrated and that decedent had repeatedly told them and others that he did not desire to be buried with her family.

As the disagreement continued, the same group of the children, with the exception of Larry Jr., voted again, with the result that they were still united in their view that decedent wanted to be buried near his father. When plaintiff asserted that she had the right to decide as the surviving spouse, Larry Jr. disagreed, telling her that the authority to decide was given to him and Jennifer as the co-executors. In an effort to resolve the dispute, however, defendants proposed that decedent be buried so that plaintiff's body could eventually be "stacked," that is, buried on top of his. Although defendants believe that plaintiff agreed with this proposal, plaintiff insists that she did not. Rather, she contends that Larry Jr. threatened to bar her from the funeral home and the services if she did not capitulate, a charge he denies. She asserts that she decided to permit the burial to take place because she believed she had no choice. On October 27, 2005, decedent was buried in the plot owned by his mother and near the one where his father was buried.

Eight months after the burial, in June 2006, plaintiff filed her Verified Complaint and Order to Show Cause seeking authorization from the Chancery Division to disinter decedent's remains and rebury them in the plot that she preferred. The judge presided over two days of hearings on the issues. During the trial, numerous witnesses testified about the state of the marriage and the desires expressed by decedent about his final resting place.

On November 29, 2006, the trial court issued its written opinion. That decision rested on two essential findings of fact. First, the court found that plaintiff had not voluntarily agreed to allow decedent to be buried where he was, but had been unduly pressured to give in under circumstances that were overwhelming. In particular, the court was persuaded that plaintiff believed that defendants had the prerogative to decide where decedent would be buried and that she had acquiesced because of Larry Jr.'s threat to exclude her from the funeral. Second, however, the trial court found that decedent's clear intention was that he wanted his remains buried near his father's plot, that he did not want to be buried near plaintiff's family, and that, once buried, he would not want his remains disinterred.

Applying the law to these findings of fact, the court began by acknowledging that because decedent did not appoint anyone in his will to decide the disposition of his remains, plaintiff, his surviving spouse, was statutorily authorized to do so. See N.J.S.A. 45:27-22(a). Nevertheless, the court framed the primary issue not as being who was initially empowered to act, but instead as "whether the remains of the parties' beloved husband and father should be disinterred and relocated." As to that question, the court identified the disinterment statute, N.J.S.A. 45:27-23, as the controlling statute and considered how it should be applied to the matter.

The Chancery Division reviewed the matter against the framework ordinarily applicable to requests for permanent injunctive relief, Paternoster v. Shuster, 296 N.J. Super. 544, 556 (App. Div. 1997); see Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982) (identifying standards generally applicable to preliminary injunctive relief), observing that courts of equity have long been vested with authority to address questions relating to "removal or other disturbance" of dead bodies, In re Sheffield Farms Co., 22 N.J. 548, 556 (1956). In analyzing the question presented, the court recognized that although there is a longstanding public policy disfavoring disinterment, several factors have traditionally been considered to be relevant, with the decedent's preference being the most important. See Felipe v. Vega, 239 N.J. Super. 81, 84-87 (Ch. Div. 1989). Noting that the interment statute, N.J.S.A. 45:27-22, requires compliance with a decedent's preference only if it is expressed in a Last Will and Testament, the Chancery Division found no similar limitation on its equitable power to decide the question of disinterment. In that circumstance, the court concluded that decedent's preference for burial was paramount, see Bruning v. Eckman Funeral Home, 300 N.J. Super. 424, 431 (App. Div. 1997), and that his desire to be buried with his family, coupled with his desire not to be disinterred, was entitled to be enforced notwithstanding the contrary wishes of his surviving spouse. The court therefore denied plaintiff's application, although fashioning alternative relief not germane to the issue before this Court.*fn1

Plaintiff appealed, arguing that the trial court erred in its construction of the statutory provisions relating to interment and disinterment. The majority of the appellate panel agreed with her and reversed, concluding that plaintiff should be permitted to disinter the remains and move them to the plot of her choosing. In the majority's view, because decedent had not expressed his intent about the disposition of his remains in a testamentary writing, as required by statute, his preference should not have been considered at all.

The majority's conclusion was based on its view that, although the wishes of a decedent were relevant at common law, see Sherman v. Sherman, 330 N.J. Super. 638, 649-50 (Ch. Div. 1999); Felipe, supra, 239 N.J. Super. at 87; Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951), the 2003 enactment of the New Jersey Cemetery Act, N.J.S.A. 45:27-1 to -38, made a decedent's preference regarding the disposition of his or her remains binding only if stated expressly in a will, see N.J.S.A. 45:27-22(a).

Using that analytical framework, the majority concluded that because decedent had not made his wishes known through a testamentary provision, plaintiff, as his surviving spouse, had the right to decide his burial site and that defendants had violated that statutorily-protected right. The panel then reasoned that the statute governing disinterment, N.J.S.A. 45:27-23, although silent about the effect to be given to a decedent's expression of intent, should be read in pari materia with the statute governing interment, N.J.S.A. 45:27-22. See generally Skakel v. Twp. of N. Bergen, 37 N.J. 369, 383 (1962) (stating that statutory sections must be read together); Febbi v. Bd. of Review, Div. of Employment Sec., 35 N.J. 601, 606 (1961) (same). That analysis led the majority to conclude that in matters relating to disinterment, a spouse's interest should be outweighed only by a testamentary expression of decedent's intent.

The majority then applied a de novo standard of review, see In re Boyadjian, 362 N.J. Super. 463, 475-76 (App. Div.), certif. denied, 178 N.J. 250 (2003), and reversed. In its balancing of the factors, the majority concluded that the trial court had erred in giving primacy to decedent's intent and that a proper balancing would have weighed plaintiff's statutory right, and defendants' actions in depriving her of acting on that right, as sufficient to overcome the general preference against disinterment. The majority therefore directed the Chancery Division to issue an order authorizing plaintiff to disinter decedent's remains and move them to her preferred plot.

Judge Edwin H. Stern dissented, reasoning that the majority erred in using the in pari materia analysis. In his view, the two statutory sections should have been read independently of each other, with one, N.J.S.A. 45:27-23, governing disinterment exclusively and the other, N.J.S.A. 45:27-22, regulating interment. Moreover, as he explained, because the trial court's decision was based on substantial credible evidence in the record and resulted from the proper application of the relevant legal principles and statutory provisions, it was entitled to be affirmed.

Based on the dissent, defendants pursued their appeal to this Court as of right, see N.J. Const. art. VI, § 5, ¶ 1(b); R. 2:2-1(a)(2). Because the question before the Court is limited to the issue raised in Judge Stern's dissent, we need not recite the arguments made by the parties in the briefs they have filed.

II.

Although there are some suggestions that at common law the burial of bodies was considered to be a duty devolving on certain persons related to the decedent, see Toppin v. Moriarty, 59 N.J. Eq. 115, 118-19 (Ch. 1899) (concluding that surviving spouse is charged with duty of burial, exclusive and superior to right of other kin due to intimacy of spousal relationship); see also Lascurain v. City of Newark, 349 N.J. Super. 251, 269-70 (App. Div. 2002) (recognizing quasi-property right in remains of deceased "limited to the right of burial or other lawful disposition"); Fidelity Union, supra, 16 N.J. Super. at 290 (referring to right to dispose of decedent's remains as not being testamentary), the subject of burial has been addressed by our Legislature since 1851. See Cemetery Act of 1851, L. 1851, p. 254.

The earliest statutes relating to burial were designed in large measure to permit the creation of cemetery associations, and, through them, to regulate cemeteries. See id. at 254-57. As a result, they referred to interment only in passing. See id. at 257-58 (restricting place of burial to cemetery plots in which "a person having at the time of such decease an interest . . . or the relative of some person having such interest, or the wife of such person, or her relative."). The Cemetery Act of 1851, and its several amendments, see, e.g., Cemetery Act of 1883, L. 1883, c. 135, § 3; Cemetery Act of 1889, L. 1889, c. 269, § 3; Cemetery Act of 1890, L. 1890, c. 68, § 2, which were subsequently codified as Title 8 of the Revised Statutes, R.S. 8:1-1 to -22, are of historical interest. However, because they do not shed light on the questions presented by this appeal, we need not address them further.

Our Legislature began to consider whether to revise the statutes relating to cemeteries in the 1950's, largely in response to growing concerns about abuses in cemetery operations. See Assembly Committee on Cemeteries and Mausoleums, Final Report at 3-4 (Mar. 31, 1952). In 1971, following many years of study and debate, the Legislature repealed all of the earlier statutes and replaced them with an entirely new statutory scheme, codified as Title 8A. The 1971 enactment is significant to the dispute before this Court because it included the predecessors to the current statutes governing interment and disinterment.

As originally enacted, the 1971 interment provision provided as follows:

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.

c. The surviving parent or parents of the decedent.

d. A majority of the brothers and sisters of the decedent if no child ...


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