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The recent case of Kulp v. Kulp marks the first time that the Superior Court has been faced with the issue of whether a trial court, in a divorce action, may order the division of the cremated remains between the parents of a deceased child. In Kulp, the parties were involved in a divorce action. During the divorce proceedings, Husband sought, inter alia, injunctive special relief concerning the disposition of the ashes of the parties’ son. The Schuylkill County trial court held a hearing and entered an interim order directing that the son’s ashes remain in the marital residence pending the trial court’s final order and directed the parties to submit memoranda of law on the disposition of the ashes. After reviewing the parties’ memoranda, the trial court directed the parties to reappear before the court for a conference with regard to the trial court’s following alternatives as to the ashes: That the ashes be buried in a memorial park or cemetery of mutual choice within Schuylkill County with a portion remaining in a keepsake for each party; That the ashes be placed in an above ground urn niche in a memorial park or cemetery of mutual choice within Schuylkill County; or That the ashes contained in the present urn be divided and placed in two separate urns with each party placing their individual urn at a site of their choosing. The trial court entered and order in line with the third alternative. After the trial court denied Mr. Kulp’s reconsideration request, he appealed the trial court’s order. On appeal, Mr. Kulp raised the following issues: Did the trial court abuse its discretion by considering the ashes of the parties’ deceased child to be property of the parties and divisible contrary to 20 Pa.C.S.A. Section 301(c); and Did the trial court abuse its discretion by ignoring and foregoing a factual analysis regarding re-interment per Pettigrew v. Pettigrew and other supporting authorities. The Superior Court has held that an order granting special relief under the Divorce Code is not a final and appealable order. “However, such an order may be appealable under the Collateral Order Doctrine.” Pursuant to the Pennsylvania Rules of Civil Procedure, a collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. In the present case, the Superior Court found that all three prongs of the Collateral Order Doctrine were present and allowed the appeal to continue. Under Mr. Kulp’s first issue on appeal, the Pennsylvania Superior Court noted that under 23 Pa.C.S.A. Section 3323(f), the trial court in divorce cases has full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interest of the parties and may grant such other relief or remedy as equity and justice require. In relying on Section 305(c) of the Probate, Estates and Fiduciary Code (PEF Code), Mr. Kulp asserted that there is no property right in a decedent’s remains. The Superior Court held that control of the decedent’s remains is governed by Section 305 of the Probate, Estates and Fiduciary Code. “Thus, according to the PEF Code, where a deceased person does not have a surviving spouse, the next of kin have the sole authority in matters concerning disposition of the decedent’s remains ‘absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement.’” It is important to note that “under the intestate statutes, if a decedent has no surviving spouse, then his estate goes to his issue, and if no issue, to his parents.” The central case in Pennsylvania regarding burial rights is the case of Pettigrew, in which the Pennsylvania Supreme Court held that “the paramount right to control the body of a deceased person for interment is in the surviving spouse, and if there is no spouse, in the next of kin.” Pettigrew requires “in determining the disposition of a decedent’s remains, that each case be considered on its own merits, the wishes of the decedent and the interest of the public be considered, the rights and feelings of the surviving spouse or next of kin are paramount, and a party seeking re-interment must demonstrate reasonable cause for such re-interment.” The Pennsylvania Superior Court case of Novelli v. Carroll expanded the factors that must be considered by a court in deciding a request for re-interment as follows: The degree of the relationship that the parties seeking re-interment bears to the decedent and the strength of that relationship; The degree of the relationship that the parties seeking to prevent re-interment bears to the decedent; The desire of the decedent, including “the general assumption that the decedent would not wish his remains to be disturbed or a specific statement of desire by the decedent;” The conduct of the parties seeking re-interment especially as it may relate to the circumstances of the original interment; The conduct of the person seeking to prevent re-interment; “The length of time that has elapsed since the original interment;” and The strength of the reasons offered in favor of and in opposition of re-interment. It is important to note that, in the present case, “the son’s cremated remains have not been ‘interred’ in the earth, but rather placed in the marital home since cremation. On the other hand, husband is seeking to relocate son’s remains from their original location. On this basis we find it helpful to take guidance from case law regarding the interment.” In Kulp, the Superior Court held that the language of Section 305 of the PEF Code supports Mr. Kulp’s position that the right to depose of the decedent’s remains is not a property right but rather an “authority” to dispose of the remains. The Superior Court further held that though the remains are not considered property, the question of whether the court has the power to divide the remains is still not determined by the case law and statutes in Pennsylvania. Therefore, the court looked to other states for guidance. After doing so, the Superior Court stated: “In our view, the law does not prohibit a trial court from ordering the division of created remains where a dispute over the remains arises. Nonetheless, the issue is an extremely sensitive one. While the division of cremated remains may be common in the funeral industry it may be acceptable in many instances to the next of kin, in other cases, as in the case of husband herein, the next of kin may believe that the division of cremated remains is offensive. The question thus presented is whether the trial court in the instant case abused its discretion in ordering the division of son’s remains.” The Superior Court stressed that the Supreme Court in Pettigrew stated that the rights and feelings of the next of kin are paramount, and that in the instant case, the parties stand on equal footing as son’s next of kin. The Superior Court concluded that, because of the extremely sensitive nature of the issue and Mr. Kulp’s opposition to the division of the remains of the parties’ son, the trial court abused its discretion in using its equitable powers under the Divorce Code to override the desires of one of the next of kin as to the division of the parties’ son’s remains. The Superior Court then remanded the case to the trial court for reconsideration as to the issue of the placement of the son’s cremated remains considering and applying the factors set forth in Pettigrew and Novelli. This case is important because it reminds family law practitioners that though 23 Pa.C.S.A. Section 3323(f) is a useful tool in the family courts when a divorce is pending, it does not give the trial court unlimited powers to enter orders and injunctions. Further, this case reiterates that the area of family law is a melting pot of the many other areas of the law and in some instances, the divorce trial court’s equitable powers must take a back seat to other areas of the law when the other areas of the law intersect with family law. Interestingly, since the ashes do not constitute “property,” the remains certainly cannot constitute “marital property” subject to equitable distribution under the Divorce Code. Thus, the question remains, does this case more appropriately belong in Orphan’s Court to be decided under the PEF Code? This issue was not raised or decided in this case. MICHAEL E. BERTIN is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is a member of council of the family law section of the Pennsylvania Bar Association and is co-chairman of the custody committee and a member of the executive committee of the family law section of the Philadelphia Bar Association.

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