Foresee v. Foresee (In re Foresee)

• Decision Date: 13 October 2020
• Docket Number: Case No. 118,599
• Parties: In the MATTER OF the ESTATE OF Thomas Allen FORESEE Dayna Foresee, Respondent/Appellant, v. Jeremy Foresee, Jacie Michelle Cook, Petitioners/Appellees.
• Court: Oklahoma Supreme Court

475 P.3d 862

In the MATTER OF the ESTATE OF Thomas Allen FORESEEDayna Foresee, Respondent/Appellant,

v.Jeremy Foresee, Jacie Michelle Cook, Petitioners/Appellees.

Case No. 118,599

Supreme Court of Oklahoma.

FILED OCTOBER 13, 2020

Brian J. Nowline and Raymond E. Penny, Jr., Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for Appellant

James R. Pratt and Teresa G. Pratt, Pratt Law Offices, P.C., Eufaula, OK, for Appellees

GURICH, C.J.

Facts & Procedural History¹

¶1 Dayna Foresee (Dayna) and Thomas Allen Foresee (Decedent) were married for thirty-nine years. Although the record is unclear as to precisely when the parties separated, Dayna moved out of the parties' marital residence in Eufaula and filed a divorce proceeding in Tulsa County on July 17, 2019.²

¶2 Decedent had been diagnosed with amyotrophic lateral sclerosis

(Lou Gehrig's disease ). On December 31, 2019, he executed an instrument entitled Last Will and Testament, naming two of the parties' children, Jeremy Foresee and Jacie Michelle Cook (collectively Appellees), to serve as co-personal representatives. Further, the will expressly excluded Dayna from taking anything from Decedent's estate.³ Decedent passed away from Lou Gehrig's disease

on January 11, 2020.

¶3 On January 13, 2020, Appellees filed a probate petition in McIntosh County, seeking appointment as special administrators of Decedent's estate. Appellees alleged the Decedent had "orally expressed wishes for disposition of his bodily remains."⁴ Additionally, the petition maintained that a dispute regarding the disposition of Decedent's body had arisen between heirs of the estate. Appellees claimed that as representatives of the Decedent's estate, duly appointed under the terms of his will, they were to be afforded statutory priority to control the disposition of the remains. The will vested the co-personal representatives with the power to pay debts associated with Decedent's "last illness, funeral, and burial;"⁵ however, nothing in the will explicitly entrusted them with control over decedent's remains.

¶4 In connection with Appellees' filing, the trial judge entered two separate ex parte rulings on January 13: (1) an order appointing Appellees as co-personal representatives; and (2) a " 58 O.S. 212 Minute of the Court."⁶ In the latter edict, the trial judge awarded Appellees "sole responsibility of the planning, preparation, services, and payment from Estate assets, according to the decedent's will, and 21 O.S. 1158(2), for the disposition of decedent's bodily remains."⁷

¶5 On January 15, 2020, Dayna filed an objection contesting the admission of Decedent's will to probate, Appellees' appointment as co-special administrators, and Appellees' control over Decedent's body. Simultaneously, Dayna filed a second pleading in which she sought an emergency temporary restraining order and preliminary injunction. Both filings alleged inter alia that Decedent's will was invalid because: (1) Decedent was of unsound mind at the time the will was executed; and (2) the will was the byproduct of undue influence. In her demand for injunctive relief, Dayna maintained: (1) by statute she was entitled to priority and control of Decedent's body; (2) Decedent's will did not satisfy statutory prerequisites for assigning the right to control disposition of a body post-mortem; and (3) the will was invalid, therefore any assignment of the right to control Decedent's body contained in that instrument is likewise invalid.

¶6 Dayna's objection and motion were presented to the trial court on an emergency basis. Other than her verified pleadings, no additional evidence was offered at the hearing. There was no transcript made of the proceeding and no narrative statement has been submitted by Dayna as authorized in Okla. Sup. Ct. R. 1.30. In a journal entry filed on January 15, 2020, the district court found the Decedent's will "satisfies the requirements of 21 O.S. § 1151(B) such that [Appellees] are entitled to control of the Decedent's remains pursuant to 21 O.S. § 1158(2)."⁸ The trial court denied injunctive relief, but did authorize Dayna to attend Decedent's funeral without interference. Dayna timely filed her appeal from the trial court's decision, and we retained the matter to address this first-impression question regarding the proper reading of 21 O.S. 2011 §§ 1151 and 1158.⁹

Standard of Review

¶7 At issue in this interlocutory appeal is whether the trial court erred in denying Appellant's request for a temporary injunction. We will not disturb a trial court ruling either granting or denying a temporary injunction absent a finding the judge abused his or her discretion. Edwards v. Bd. of Cnty. Comm'rs of Canadian Cnty., 2015 OK 58, ¶ 11, 378 P.3d 54, 58. An abuse of discretion is deemed to have occurred when a trial court's legal conclusions are clearly erroneous. Wright City Pub. Sch. v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 35, ¶ 17, 303 P.3d 884, 888, see also Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608.

¶8 To assess the propriety of the trial court's equitable ruling in this case, we must examine the precise wording and interplay between two statutes: 21 O.S. 2011 § 1158 and 21 O.S. 2011 § 1151. Questions concerning statutory interpretation are subject to this Court's de novo review. Christian v. Christian, 2018 OK 91, ¶ 6, 434 P.3d 941, 942. In exercising de novo review, "this court possesses plenary, independent, and non-deferential authority to examine the issues presented." Benedetti v. Cimarex Energy Co., 2018 OK 21, ¶ 5, 415 P.3d 43, 45.

Analysis

¶9 Dayna argues on appeal that she sufficiently demonstrated entitlement to a preliminary injunction, and that the trial court's denial of such was an abuse of discretion and against the weight of the evidence. In particular, Dayna claims the Decedent's will does not contain specific language entitling Appellees to control over his remains, a requirement she argues is mandated by 21 O.S. 2011 § 1151(B). Appellees contend that the will need not specifically assign control of Decedent's remains to the co-personal representatives. Rather, they insist that under 21 O.S. 2011 § 1158(2), a personal representative properly appointed by a will, executed in conformity with Oklahoma law, is given priority over a surviving spouse. Alternatively, Appellees allege that even if Dayna was entitled to statutory priority over Decedent's remains, she forfeited that right when she became "estranged" from Decedent as specified in 21 O.S. 2011 § 1151a.

¶10 The purpose of a temporary injunction is to "preserve the status quo and prevent the perpetuation of a wrong or the doing of an act whereby the rights of the moving party may be materially invaded, injured, or endangered." Id., ¶ 10, 378 P.3d at 58. It is an extraordinary remedy, not to be granted lightly. Dowell v. Pletcher, 2013 OK 50, ¶ 6, 304 P.3d 457, 460. A preliminary injunction may be imposed:

When it appears, by the petition, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. And when, during the pendency of an action, it shall appear, by affidavit, that the defendant threatens or is about to remove or dispose of his property with intent to defraud his creditors, or to render the judgment ineffectual, a temporary injunction may be granted to restrain such removal or disposition. It may, also, be granted in any case where it is specially authorized by statute.

12 O.S. 2011 § 1382. It is a movant's duty to establish: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction relief if the injunction is denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest. Dowell, ¶ 7, 304 P.3d at 460.

¶11 Although they were in the midst of a divorce proceeding, the parties in this case had been married for thirty-nine years; thus, the threatened harm in denying Dayna control over Decedent's remains was very real. Yet, entitlement to a temporary injunction still depended upon Dayna demonstrating she was likely to succeed on the merits. This, of course, required Dayna to prove that she should be given statutory priority over Decedent's remains.¹⁰

¶12 The trial court concluded Decedent's will fulfilled the requirements for assigning control over Decedent's remains. This was an erroneous legal determination. Section 1151, which is entitled, "Right to Direct the Disposal of One's Body," reads:

A. Any person has the right to direct the manner in which his or her body shall be disposed of after death, and to direct the manner in which any part of his or her body which becomes separated therefrom during his or her lifetime shall be disposed of. The provisions of Section 1151 et seq. of this title do not apply where such person has given directions for the disposal of his or her body or any part thereof inconsistent with these provisions.

B. A person may assign the right to direct the manner in which his or her body shall be disposed of after death by executing a sworn affidavit stating the assignment of the right and the name of the person or persons to whom the right has been assigned .

C. If the decedent died while serving in any branch of the United States Armed Forces, the United States Reserve Forces or the National Guard, and completed a United States Department of Defense Record of Emergency Data, DD Form 93, or its successor

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