Tully v. Tully

177 S.E.2d 49, 226 Ga. 653, 1970 Ga. LEXIS 626

• Court: Supreme Court of Georgia
• Decided: September 10, 1970
• Docket: 25895
• Status: Published

Opinions

Undercoekejr, Justice.

This litigation originated as an action for divorce, alimony and custody of children brought in DeKalb County by the wife who is the appellee here. Before any written orders were entered in the action, two of the minor children died in a fire in the home of their aunt located in North Carolina where they were visiting with their mother. The appellee authorized the funeral arrangements and directed that the children be interred at Ft. Gaines, Ga., where her mother lived. The appellant filed a motion to restrain the appellee from proceeding with the funeral arrangements. He claimed that he had not been consulted or permitted to exercise any of his parental rights with respect to his children’s burial. He contended that the parties had no close relatives in Ft. Gaines and the children should be interred in Athens or Atlanta, Ga., which is presently the home of the parties. The court issued an ex parte order restraining the appellee from proceeding with the burial together with a rule nisi to show cause. The record shows that the appellee, who was injured and hospitalized as a result of the fire, did not receive notice of the restraining order before interment of the children. After the children’s death, the court entered a written nunc pro tunc order awarding custody of the deceased children to the appellee in accordance with its oral award before their deaths. Thereafter the appellant moved the court to determine the rights of the parties to the custody and burial of the children’s remains. Upon a hearing of the motion, the court dismissed the restraining order as moot finding that the interment had been completed before notice of the order. It further held that the appellee had custody of the children and hence had the right to direct the funeral arrangements and burial. This appeal is from those orders and was certified by the trial court for immediate review. Held:

1. The trial court by its judgments refused to disinter the bodies of the parties’ deceased children over the objection of the mother. We find no error in the rulings.

“Disinterment of a body is not favored in the law. Public policy frowns on the disinterment of a body and its' removal to another burial place, and it is the policy of the law, except in cases of necessity or for laudable purposes, that the sanctity of the grave should be maintained, and that a body once suitably buried should remain undisturbed. While the right to have a dead body remain undisturbed is not absolute, a court will not ordinarily order or permit it to be disinterred unless there is a strong showing that it is necessary and that the interests of justice require it. However, there is no universal rule applicable, each case depending on its own facts and circumstances. . .” 25A CJS 496, § 4 (1). See Rivers v. Greenwood Cemetery, 194 Ga. 524 (22 SE2d 134); Louisville & N. R. Co. v. Wilson, 123 Ga. 62 (51 SE 24, 3 AC 128).

Argued July 15, 1970 Decided September 10, 1970. Strother ■& Smith, Martha B. T. Smith, for appellant. Sanders, Hester, Holley, Ashmore & Boozer, Robert P. Rowe, for appellee.

Also, interment has taken place, and, as the trial court held, the respective right of the parents to participate in the funeral arrangments is now moot.

2. Under the above ruling, it is unnecessary to decide whether the court erred in entering the nunc pro tunc order awarding temporary custody of the children to the appellee.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.