Marino v. Marino

• Decision Date: 24 September 2009
• Docket Number: A-18 September Term 2008.
• Parties: Joan MARINO, Plaintiff-Respondent, v. Larry L. MARINO, Jr., Brett Marino, Jennifer Marino, John Marino and Dorothy Marino, Defendants-Appellants.
• Court: New Jersey Supreme Court

981 A.2d 855

200 N.J. 315

Joan MARINO, Plaintiff-Respondent, v. Larry L. MARINO, Jr., Brett Marino, Jennifer Marino, John Marino and Dorothy Marino, Defendants-Appellants.

A-18 September Term 2008.

Supreme Court of New Jersey.

Argued January 6, 2009.

Decided September 24, 2009.

Robert Gregory Leonard argued the cause for appellants (The Rotolo Law Firm, attorneys; Mr. Leonard and William E. Reutelhuber, on the briefs).

Alan J. Baldwin argued the cause for respondent (Broderick, Newmark & Grather, attorneys; Mr. Baldwin and Martin Newmark, Morristown, on the brief).

Justice HOENS delivered the opinion of the Court.

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, 687 A.2d 330 (App. Div.1997); see Crowe v. De Gioia, 90 N.J. 126, 132-34, 447 A.2d 173 (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, 126 A.2d 886 (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, 570 A.2d 1028 (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, 693 A.2d 164 (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.¹

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, 750 A.2d 229 (Ch.Div.1999); Felipe, supra, 239 N.J.Super. at 87, 570 A.2d 1028; Fidelity Union Trust Co. v. Heller, 16 N.J.Super. 285, 290, 84 A.2d 485 (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...