Opinion
E065822
12-11-2017
JEFFREY ALLEN YOTHERS, Plaintiff and Respondent, v. PATRICIA MARES, Objector and Appellant.
Marend M. Garrett for Objector and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1602817) OPINION APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed. Marend M. Garrett for Objector and Appellant. No appearance for Plaintiff and Respondent.
I. INTRODUCTION
The parties to this appeal dispute who should control the disposition of the remains of Charles Robert Yothers II (decedent). The decedent was killed in an automobile accident; he was 29 years old. The trial court ordered that the decedent's body be released to his father, plaintiff and respondent Jeffrey Allen Yothers. The decedent's mother, objector and appellant Patricia Mares, contends that the trial court should have released the remains to her.
In conjunction with her appeal, decedent's mother filed a request for judicial notice of various documents. This request is not supported by a declaration or other evidence establishing the documents' provenance. Moreover, at least one of the documents is not the proper subject of judicial notice, and none of the documents are necessary for our analysis. The request for judicial notice is therefore denied.
We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The decedent died in an automobile accident on February 17, 2016. Also killed in the accident was 11-year-old Charles Yothers, Jr. The deceased child was not the biological son of the decedent, but they shared a name, and the decedent had raised the child as his own. Decedent was survived by his mother and father; Sylvia Yothers, his former wife and the mother of the deceased child; and the five other minor children of decedent and Sylvia Yothers.
On February 29, 2016, decedent's father sought and obtained an ex parte order that the decedent's remains be released to him for burial or cremation.
On March 2, 2016, decedent's mother filed an ex parte application for an order quashing the February 29, 2016, order. She asserted that she had not received notice of the decedent's father's ex parte, and only learned of the trial court's order after the county coroner had released the body to father. She requested she be allowed to transfer the decedent's remains from Montecito Memorial Park and Mortuary (Montecito) in Colton, California, where they were taken after being released to decedent's father, to Green Acres Memorial Park and Mortuary (Green Acres) in Bloomington, California.
On March 4, 2016, at a hearing on decedent's mother's ex parte application, the trial court indicated that it had been unaware that decedent's parents were divorced, and that the woman who had been in court with decedent's father on February 29, 2016, was not decedent's mother. The trial court continued the matter to allow both parents to be present for a hearing determining who would be directed to dispose of the decedent's remains.
On March 11, 2016, decedent's father and mother, as well as Sylvia Yothers, appeared for the hearing on the matter. Decedent's mother asserted that decedent's father had been "gone 99% of [decedent's] life"; decedent's parents had divorced in 1988, after five years of marriage, when the decedent was three years old. The decedent had only recently reconnected with his father via social media. The decedent's mother testified that, after the accident, she was in communication with Sylvia Yothers and decedent's father about decedent's service and the disposition of his remains. She had made arrangements at Green Acres, believing that decedent's father was in agreement to have a service there; all that was needed was his signature, and to meet at Green Acres and "both pay whatever needed to be paid." The decedent's mother requested that the trial court order that she be permitted to have the decedent's service at Green Acres, so that there could be a viewing for close family, and then have Green Acres handle the cremation. After the cremation, they could divide the decedent's ashes, so that some of them could be buried with the deceased child at Montecito.
The parties and the trial court apparently agreed that the deceased child had been or was going to be laid to rest at Montecito, as the discussion during the March 11, 2016, hearing assumes this to be the case, without objection from any party. Sylvia Yothers apparently submitted a declaration for the trial court's consideration; it is mentioned on the record, but was not included in the record of the present appeal. That missing declaration may have been the source of the trial court's information regarding the resting place of the deceased child.
The decedent's father testified that he preferred to defer to the wishes of Sylvia Yothers; he considered her to be decedent's wife. The trial court also expressed that it wished to hear her testimony, even though she "doesn't have any standing under [Health and Safety Code section] 7100, because I am concerned with the minor children and because she may have other information that she can provide . . ." including information about "what [the decedent's] wishes may have been, and . . . his relationship with his child that was also lost in the accident." Sylvia Yothers explained that she and the decedent had legally divorced, but had continued to live together as a family. She testified that in October 2012 there was an incident of domestic violence between her and the decedent; Child Protective Services had become involved, and decedent had been ordered to stay away from the children. They violated that order by spending Christmas together, and as a result the children were removed in January 2013. She testified that to get the children back, "they were requiring that we divorce. So we got a divorce." The children were returned in July 2013, and then they "continued living the same way that [they] had . . . since 2006." She remembered the decedent as a very involved father, who had a good relationship with all of the children.
Further undesignated statutory references are to the Health and Safety Code.
Sylvia Yothers further testified that she and decedent had, at the beginning of 2015, at the prompting of a door-to-door salesman, investigated cemeteries, and chosen "a certain place at Montecito" as their "final resting place." They had "started making payments," and she represented that she had with her "documentation . . . that states that [they] had already discussed this and this is where [they] wanted to be."
The documentation mentioned does not appear in our record.
The trial court ordered that decedent's father be given the right to control the disposition of decedent's remains. The court found that an order allowing the decedent's remains to be interred with the remains of his son at Montecito—as the decedent's father intended to do, deferring to the wishes of Sylvia Yothers—would be "exactly what [the decedent] would wish."
III. DISCUSSION
The decedent's mother contends that the trial court erred in several respects. First, she asserts that the decedent's father is not a "competent parent" within the meaning of section 7100, subdivision (a)(4). Additionally, she argues that the trial court should have given dispositive weight to the evidence of her relationship with the decedent, as compared to the recently-formed relationship between the decedent and his father; that the trial court should have given no weight to Sylvia Yothers's testimony, or the circumstances of decedent's surviving minor children; and that the trial court erred by referring to the deceased child as decedent's son, and her grandson. We find no abuse of the trial court's discretion.
Section 7100 "establishes . . . an orderly process by which to ensure that proper disposition is made of human remains." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 896-897, fn. omitted.) In the absence of any holder of a power of attorney for health care, or any competent surviving spouse or adult child, the statute authorizes the "surviving competent parent or parents of the decedent" to control the disposition of the remains. (§ 7100, subd. (a)(4).) If persons who otherwise would have equal rights to control the disposition of the remains under section 7100 fail to agree on how to do so, they may file a petition in the superior court "seeking an order of the court determining, as appropriate, who among those parties will have the control of disposition and to direct that person to make interment of the remains." (§ 7105, subd. (c).)
Because of the equitable nature of the proceeding, we review a trial court's order pursuant to section 7105 for abuse of discretion. (See Maffei v. Woodlawn Memorial Park (2005) 130 Cal.App.4th 119, 123 [applying abuse of discretion review in analogous context of order regarding disinterment under section 7526].) Under that standard, "'[d]iscretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.'" (Id. at p. 124, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Decedent's mother suggests we should apply the substantial evidence standard of review, citing to authority from an unrelated context. We disagree. Nevertheless, our conclusions here do not depend on the standard of review; the result would be the same under any plausibly applicable standard. --------
The trial court's order granting decedent's father the right to control the disposition of the remains did not exceed the bounds of reason. The decedent had not left written instructions sufficient to have binding effect (see § 7100.1) or granted anyone power of attorney for healthcare (see § 7100, subd. (a)(1)). Nevertheless, there was evidence that he wished his final resting place to be at Montecito, pursuant to the arrangements he and Sylvia Yothers had made or begun to make together. It was also reasonable for the trial court to infer that decedent would wish to be buried with the child who died in the same accident, who shared his name, and whom he had raised as his own even if they did not share a biological connection. There is no miscarriage of justice in the trial court taking the decedent's wishes into account, so far as they can be discerned in the circumstances, and making the order most likely to effectuate those wishes.
Decedent's mother argues that father should not have been considered a "competent" parent within the meaning of section 7100, subdivision (a)(4), pointing to what she contends was deceitful behavior in seeking the ex parte order on February 29, 2016. She ignores that section 7100 explicitly defines the term "competent" to mean "an individual who has not been declared incompetent by a court of law or who has been declared competent by a court of law following a declaration of incompetence." (§ 7100, subd. (g).) There is no evidence in the record suggesting that defendant's father falls outside the statutory definition of "competent."
No party has disputed decedent's mother's characterization of her relationship with the decedent as longstanding and close, and it is undisputed that the decedent's relationship with his father was a recent phenomenon. Nevertheless, she cites no authority for the proposition that the trial court's decision pursuant to section 7105 should turn on the relative closeness of the parties' relationship to the decedent during his lifetime; there is no such authority. Rather, the trial court is required to consider all the circumstances, weigh the equities, and make a decision "as appropriate." (§ 7105.) The circumstances to be considered include, in this case, evidence of the decedent's own wishes, and those of his former spouse and the mother of his children. The trial court, in making its decision, took into account all of the evidence presented, including the testimony of decedent's mother. For the reasons discussed above, we do not find the weight the trial court chose to assign to the various pieces of evidence, and the competing interests of the parties, to exceed the bounds of reason.
Decedent's mother is incorrect that the trial court erred by considering the testimony of Sylvia Yothers, or considering the interests of the surviving children. Because of the divorce, Sylvia Yothers did not have the statutory rights regarding the disposition of the decedent's remains that she would otherwise have had as his spouse. (§ 7100, subd. (a)(2).) Nevertheless, her testimony regarding the decedent's wishes, and his relationship with his children, was relevant evidence of the circumstances, which the trial court properly took into account.
Decedent's mother asserts that the trial judge's reference to the deceased child as decedent's son or stepson was incorrect, since there was no biological connection between them, and the decedent was divorced from Sylvia Yothers. She also rejects the trial court's characterization of the deceased child as her grandson. Nothing in the record, however, supports her contention that the trial court's comments "created an improper ruling." The trial court was well aware of the details of the legal and biological relationships among the parties; nothing in the record suggests that its decision was based on any misunderstanding. And the record demonstrates that the decedent considered the deceased child to be his son, regardless of their biological connection or lack thereof, and regardless of the dissolution of his marriage to the child's mother. The trial court did not err by using what would most likely have been the decedent's own characterizations of his familial relationships.
IV. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.