Andrews v. McGowan, 98-2883.

• Decision Date: 16 July 1999
• Docket Number: No. 98-2883.,98-2883.
• Citation: 739 So.2d 132
• Parties: Deborah M. ANDREWS, John S. Andrews, Etc., et al., Appellants, v. William T. McGOWAN, David K. McGowan, et al., Appellees.
• Court: Florida District Court of Appeals

739 So.2d 132

Deborah M. ANDREWS, John S. Andrews, Etc., et al., Appellants, v. William T. McGOWAN, David K. McGowan, et al., Appellees.

No. 98-2883.

District Court of Appeal of Florida, Fifth District.

July 16, 1999.

Rehearing and Certification Denied August 18, 1999.

Christopher W. Boyden, North Palm Beach and Jack W. Shaw, Jr. of Shaw Stedman, P.A., Orlando, for Appellants.

Jamie Billotte Moses and Reinald Werrenrath III of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee Levitt Weinstein Memorial Chapels, Inc.

Christopher C. Skambis and Brian J. Moran of Moran & Shams, P.A., Orlando, for Appellee Woodlawn Memorial Park, Inc.

No Appearance for Appellees McGowan.

COBB, J.

The issue presented by this appeal is whether, under Florida law, a surviving spouse who has been judicially separated by a final judgment of separate maintenance nevertheless retains the rights of burial and disposition of the remains of a deceased spouse. The trial court answered in the affirmative, granting motions for summary judgment filed by Levitt Weinstein Memorial Chapels, Inc. (Levitt Weinstein) and Woodlawn Memorial Park, Inc. (Woodlawn), the appellees herein.¹

The appellants, with the exception of Deborah Andrew's husband, John Andrews, are all lineal descendants of the decedent, Evelyn McGowan, who died on July 12, 1996 as a domiciliary of Orange County, Florida. Evelyn and her husband, William T. McGowan, separated in 1993 after 40 years of marriage and never cohabited again. Evelyn resided in Orange County and William in Broward County. A final judgment of separate maintenance was entered by the Orange County Circuit Court in 1993. The final judgment ordered William to maintain existing health insurance coverage for Evelyn. William was also ordered to pay Evelyn monthly support.

In July 1993, Evelyn executed a will nominating her daughter, Deborah Andrews, as personal representative. No provision was made for her husband, nor for the disposition of her remains. On July 12, 1996, Deborah notified her father by telephone of Evelyn's passing. Deborah further notified him that Woodlawn was handling funeral arrangements and that Woodlawn requested a written authorization from William for cremation since no final judgment of dissolution of marriage had been entered. William indicated he would cooperate. Deborah signed a contract with Woodlawn for cremation and Woodlawn took custody of Evelyn's body.

Later that day, David McGowan, Deborah's brother, contacted Deborah and demanded that he and his father, William, have a private viewing or "she would be sorry." Deborah advised that there would be no private viewing. William McGowan thereafter made arrangements through Levitt Weinstein to pick up Evelyn's body from Woodlawn for funeral and cremation services in South Florida. Pursuant to William's written authorization, Levitt Weinstein took possession of the decedent's body on July 13, 1996. Woodlawn released the body without obtaining Deborah's authorization. On July 15, 1996, a funeral service and viewing took place at Levitt Weinstein's West Palm Beach facility. The appellants were invited to attend but did not do so.

On July 16, 1996, Deborah Andrews and her brother, John McGowan, traveled to Levitt Weinstein's facility and demanded to view their mother's body. On Wednesday, July 17, 1996, Deborah filed in Palm Beach County Circuit Court a verified petition for return of decedent's remains and for injunctive relief. On July 19, 1996, an injunction was entered requiring Levitt Weinstein to deliver Evelyn's remains to Deborah and yielding jurisdiction for all future hearings to the Orange County Circuit Court. The cremated remains were returned to Deborah.

The appellants thereafter filed the instant lawsuit in Orange County Circuit Court setting forth counts alleging tortious interference with lawful rights of burial, conversion, intentional infliction of emotional distress, civil conspiracy, fraud and deceit and negligence. Levitt Weinstein and Woodlawn moved to dismiss. The motions to dismiss were granted without prejudice. In the dismissal order, Judge Sprinkel ruled that no Florida statutory or decisional law governed the unique facts of the case but that under case law from other states, a surviving spouse who is judicially separated from the decedent does not have the right to possession of the decedent's remains. The court nevertheless granted the motion so that an amended complaint could be filed to clarify the issue of standing (Deborah had originally sued in her capacity as personal representative rather than in her capacity as next of kin). Appellants filed a second amended complaint. Levitt Weinstein answered and moved to dismiss portions of the complaint. Woodlawn answered.

At some point the case was reassigned to Judge Conrad. Both Levitt Weinstein and Woodlawn moved for summary judgment. Judge Conrad granted both motions, ruling that section 470.002(18), Florida Statutes (1996), controls and that William McGowan had the right to determine burial and disposition of Evelyn's remains. This appeal ensued.

There are no material issues of disputed fact presented here. Rather, there is a dispute as to the applicable law. The appellants recognize that the general rule is that in the absence of testamentary direction to the contrary, a surviving spouse, followed by next of kin, has the lawful right to possession of the body of the deceased for burial or other lawful disposition. See State v. Powell, 497 So.2d 1188 (Fla.1986),

cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 856 (1987); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941); Jackson v. Rupp, 228 So.2d 916 (Fla. 4th DCA 1969),

aff'd,

238 So.2d 86 (Fla.1970). The question presented concerns the effect, if any, of a separation decree on the surviving spouse's right to determine the disposition of the decedent spouse's remains. The appellants assert an absence of Florida law on point and rely on out-of-state case law in support of their position that a separation decree divests the surviving spouse of the right to determine disposition. Woodlawn counters that out-of-state case law is irrelevant because section 470.002(18), Florida Statutes governs and gives the surviving spouse the power of disposition. It provides:

(18) "Legally authorized person" means, in the priority listed, the decedent, when written inter vivos authorizations and directions are provided by the decedent, the surviving spouse, son or daughter who is 18 years of age or older, parent, brother or sister 18 years of age or over, grandchild who is 18 years of age or older, or grandparent; or any person in the next degree of kinship. In addition, the term may include, if no family exists or is available, the following: the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney-in-fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission or administrator acting under chapter 245, or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as authorized person. (Emphasis added).

Woodlawn argues that this subsection creates a priority of rights regime for disposition of human remains (which is...