Tully v. Pate

• Decision Date: 21 December 1973
• Docket Number: Civ. A. No. 72-155.
• Citation: 372 F. Supp. 1064
• Court: U.S. District Court — District of South Carolina
• Parties: Daniel Charles TULLY et al., Plaintiffs, v. Dr. Eula H. PATE, Defendant.

372 F. Supp. 1064

Daniel Charles TULLY et al., Plaintiffs, v. Dr. Eula H. PATE, Defendant.

Civ. A. No. 72-155.

United States District Court, D. South Carolina, Greenville Division.

December 21, 1973.

M. A. McAlister, Anderson, S. C., for plaintiffs.

Theodore A. Snyder, Jr., Greenville, S. C., for defendant.

ORDER

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HEMPHILL, District Judge.

This lawsuit, essentially a fight between an estranged husband and his sister-in-law over the bodies of his dead children, shocks the sensibilities of this court. The court has suspicioned the forum is being used for vindictive pursuit rather than a place where justice is sought. The court doubts the existence of the jurisdictional amount necessary to give diversity jurisdiction¹ but the allegations of the complaint control at this point.² The motion spotlights the issues of fact, existent or nonexistent.

Plaintiffs include Daniel Charles Tully, the father of five children, and Yvonne Therese Tully and Dana Colleen Tully, two minor children of plaintiff-father. A third minor child, Leah Ann Tully, was voluntarily dismissed from this suit as a party. Two other children, Renata Marie Tully and Daniel Charles Tully, Jr., are dead and the disposition of their bodies is the subject of this suit.

This case was commenced on February 3, 1972 by the filing of a complaint against defendant, seeking damages on two theories: (1) malicious, willful, deliberate, and intentional interference with burial rights of plaintiff-father and (2) malicious, willful, deliberate and intentional prevention of attendance by all plaintiffs at the funeral of the two deceased minor children. Defendant is the sister of plaintiff-father's estranged wife, Valaria Ann Pate Tully, and allegedly handled the burial arrangements for the two deceased minor children.

Jurisdiction is based on diversity of citizenship. Plaintiffs are all citizens and domiciliaries of the State of Georgia. Defendant is a citizen and resident of the State of South Carolina. Plaintiffs ask damages in excess of the jurisdictional amount of $10,000, exclusive of interest and costs.

Discovery proceedings continued up to and including August 30, 1972, in the process of which numerous depositions were taken by the parties, interrogatories were filed by defendant and answered by plaintiffs, and certain Requests for Admissions were filed by both defendant and plaintiffs. All of these requests dealt with the genuineness of certain documents from Case No. 53,038 in DeKalb County, State of Georgia, which was a divorce action between Valaria Ann Pate Tully and Daniel Charles Tully.

On August 30, 1972, defendant moved this court for an order granting summary judgment in her favor. As to plaintiff-father's cause of action for malicious, willful, deliberate, and intentional interference with plaintiff-father's alleged burial rights, defendant contends that she is entitled to summary judgment as a matter of law on three grounds:

(1) Burial rights over the bodies of the minor children of the estranged parents are said to belong to the mother, who allegedly had legal custody of the children and who exercised the burial rights through her alleged agent, her sister, the defendant. It is contended that plaintiff-father, who allegedly did not have legal custody, resultingly had no right to make or participate in the funeral and burial plans for his minor children. Defendant argues that no cause of action exists for alleged interference with plaintiff-father's purported burial rights.

(2) Plaintiff-father has allegedly litigated the issue of who had burial rights in the courts of Georgia to a final decision, in a divorce action between him and his wife. Defendant contends that plaintiff-father is now estopped by that judgment from further litigating the issue.

(3) The courts of Georgia have rendered a final decision that plaintiff-father had no burial rights. This judgment is presented as res judicata as to plaintiff-father and therefore a bar to this cause of action.

As to all of plaintiffs' causes of action for malicious, willful, deliberate, and intentional prevention of attendance at the funeral of the two deceased minor children, defendant contends that she is entitled to summary judgment as a matter of law on the ground that no plaintiffs have suffered injuries by their nonattendance and therefore no measurable damages can be awarded.

Plaintiff-father resists defendant's motion for summary judgment as to his first cause of action on the grounds that:

(1) His wife, the sister of defendant, did not have legal custody of the two minor children at the time of their deaths and therefore did not have exclusive burial rights over the bodies of the two deceased minor children.

(2) The divorce action between plaintiff-father and his wife, although reaching a final decision in the Georgia Supreme Court, did not involve the issue of who had burial rights over the bodies of the two deceased minor children and therefore it is uged that no estoppel by judgment exists.

(3) Since no estoppel by judgment exists, the judgment is not res judicata as to plaintiff-father's cause of action against defendant, the sister of plaintiff-father's wife in the divorce action.

All plaintiffs resist this motion as to the second cause of action on the grounds that there are genuine issues of material facts existing, thus precluding entry of summary judgment.³

On February 28, 1973, the court heard oral argument on the motion and upon the record before it, determines:

STATEMENT OF FACTS

1. In DeKalb County Superior Court, State of Georgia, Civil Action No. 53,038 was begun by the filing of a Petition for Divorce by wife, Valaria Ann Pate Tully, against husband, Daniel Charles Tully, on August 27, 1969, and was served upon the defendant on August 28, 1969, seeking custody of all of the five (5) minor children of the parties. No Rule Nisi was attached.

2. Defendant-husband filed his answer and cross complaint in said action on September 26, 1969, containing a demand for a jury trial and seeking custody of the five minor children of the parties.

3. On October 22, 1969, plaintiff filed an amendment to her petition for divorce and a Rule Nisi Order was signed by the judge setting down a hearing for November 17, 1969.

4. At the hearing on November 17, 1969, the matter of custody of all of the children was referred to the juvenile authorities for investigation and report back to the DeKalb County Court, the three older children expressing their desire to the judge to remain with the defendant-father.

5. During the pendency of the juvenile investigation, on November 27, 1969, Thanksgiving Day, plaintiff, Valaria Ann Pate Tully, apparently without any court order, either oral or written awarding her temporary custody of any minor children, left the home of the parties with the younger two children, Renata Marie and Daniel Charles, Jr., stating that she would return on Friday, November 28, 1969. She did not.

6. On February 4, 1970, counsel for defendant called Judge Hubert C. Morgan of the DeKalb County Superior Court inquiring as to whether or not the juvenile investigation had been completed and was told that the report had just come in, that he intended to award custody of the two minor children, Renata Marie and Daniel Charles, Jr., to the mother, Valaria Ann Pate Tully, the custody of the three older children to the father, Daniel Charles Tully, and requested that counsel for defendant be in touch with counsel for plaintiff to work out a temporary arrangement as to child support, etc. Counsel for defendant was not told to enter an order on custody at that time but merely told to be in touch with opposing counsel and try to work out the details to be contained in such an order. They met on February 5, 1970 for such purpose but no agreement could be reached.

7. Prior to any written order awarding custody of the two younger children to the mother, they died as a result of a fire in Highlands, North Carolina, on February 8, 1970. Two children of another sister of plaintiff to the divorce action and the grandmother of all of these children also lost their lives in the same fire and Valaria Ann Pate Tully was seriously injured and confined in the Highlands-Cashiers Hospital in Highlands, North Carolina.

8. At approximately 9:30-10:00 A. M. on February 8, 1970, the defendant, Daniel Charles Tully, was notified of the death of his children by a brother-in-law, some seven to eight hours after the fire.

9. Immediately thereafter, Daniel Charles Tully, journeyed to Athens, Georgia from Atlanta, to pick up his three older children and then to Highlands, North Carolina to assist in the funeral and burial arrangements for his children and to see Valaria Ann Pate Tully, who they understood was in critical condition and not expected to live.

10. Upon arriving in Highlands, he was confronted by members of his wife's family, including defendant in this case, Dr. Eula H. Pate, and was told that the funeral and burial arrangements had already been made by her, pursuant to directions of his estranged wife. He was further told that Valaria Ann Pate Tully wished the children buried in the Pate family plot in Fort Gaines, Georgia, that the funeral would be at 2:00 P.M. on February 10, 1970 and that the bodies of the children were at the Bryant Funeral Home. He was also told that he had no legal rights and was asked to leave Highlands.

11. Upon the return to Atlanta from Highlands of Daniel Charles Tully, he immediately contacted his attorney who was representing him in the divorce action regarding his legal rights. The attorney advised him that she was not sure what his rights were but she was sure that he had some as there was no custody order and no final decree of divorce. Immediately upon the opening of the court in DeKalb County on February 9, 1970, Mrs. Martha B. T. Smith, attorney for Mr. Tully, contacted the court and was told by...