Man loses appeal to disinter relative from family plot

A man who claims his cousin’s ex-wife was wrongfully buried in a family plot in a northern Indiana cemetery lost his appeal of a trial court decision to let the woman continue to rest in peace.

The Indiana Court of Appeals on Friday affirmed the judgment of the DeKalb Superior Court in Hal Mullett v. Deborah K. Baker and City of Butler, Indiana, 18A-PL-2080. In that case, the trial court reject Hal Mullett’s request for an order to disinter the body of Joyce Mullett Mink, the ex-wife of Hal’s cousin, Keith Mullett.

In 1952, Hal’s grandfather, Everett Mullett, purchased a family plot in the Butler Cemetery, which is owned and operated by the city of Butler. While a space remains available in the family plot, according to the record, Hal sought an order to disinter Joyce, claiming that neither she nor her daughter, Deborah K. Baker, owned the plot. On appeal, he also argued that Deborah’s consent was not required in seeking a remedy for a wrongful burial — a court order requiring the city to disinter and re-inter Joyce’s body at its expense. 

“According to Hal, the City has a statutory duty to correct the wrongful burial under Indiana Code Section 23-14-59-2, and therefore the consent for disinterment required under Section 23-14-57-1(b)(3) should either not be required or waived under Section 23-14-57-1(d),” Judge Terry Crone wrote for the court.

“Our review of Hal’s complaint, the transcript of the bench trial, and the appealed order reveals that he did not present this argument to or request this relief from the trial court. In his complaint, Hal alleged that Joyce was wrongfully buried in the family burial plot because neither she nor Deborah owned the family burial lot, and that he, as the sole surviving grandson of the person who had held title to the family burial lot, had not executed a written document indicating a waiver or giving permission for Joyce to be buried there. Hal prayed for the court to order Joyce’s disinterment. At the bench trial, Hal’s attorney stated in his opening statement that ‘[Hal] is requesting the only relief he can receive which will be of any satisfaction is that [Joyce be] disinterred and located on another lot, a process that is not common but not unheard of.’”

But the panel affirmed without ruling on the statutory requirement of consent for such an extreme remedy as disinterment, in the event of a wrongful burial. “Hal has been afforded an evidentiary hearing on the legal issues he raised; he may not obtain a second bite at the apple by raising a new legal argument that cannot be decided on facts that are not already in the record. For this reason, we find his argument on appeal waived. Therefore, we affirm.”