Preliminary Injunction – Disposition of Remains – Voluntary Cessation

Bethel v. Franklin, et al., [Ms. SC-2022-0787, Feb. 24, 2023] __ So. 3d __ (Ala. 2023). The Court (Sellers, J.; Wise, Mendheim, Stewart, Mitchell, and Cook, JJ., concur; Parker, C.J., concurs in part and concurs in the result; Shaw and Bryan, JJ., concur in the result) reverses the Baldwin Circuit Court’s order denying Orlando Bethel’s motion for a preliminary injunction.

Bethel sought a preliminary injunction pending the circuit court’s resolution of his appeal of a probate court order denying his request to control the disposition of the ashes of his deceased daughter. Under subsection (a) of § 34-13-11, Ala. Code 1975, “a decedent’s ‘surviving spouse’ has priority status over a ‘surviving parent’ of a decedent with regard to the right of disposition.” Ms. *12. One of the provisions of subsection (b) of § 34-13-11 provides: “(4) If the judge of probate court determines, pursuant to subsection (c), that the person entitled to the right of disposition and the decedent were estranged at the time of death. For the purposes of this subdivision, estranged means a physical and emotional separation that has existed for such a period of time that an absence of affection, trust, and regard for the decedent is clearly demonstrated.”

The Court concludes the Probate Court erred in “determine[ing] that cremation of the remains rendered the father’s requested relief moot, it never engaged in a fact-finding analysis regarding whether the decedent and the spouse were estranged at the time of the decedent’s death,” Ms. *14, and that “the plain language of § 34-13-11(b)(4), coupled with the evidence presented at the preliminary-injunction hearing, demonstrated that the father has a reasonable chance of success on the ultimate merits of the probate appeal.” Ms. *18.

The Court rejects the spouse’s mootness argument and holds “the spouse’s relinquishing possession of the ashes [to a third party] creates a presumption of his intent to evade not only the circuit court’s injunctive power over the defendants or the ashes, but also this Court’s appellate review. Accordingly, the defendants have not demonstrated that the father’s request for injunctive relief was moot under the voluntary-cessation doctrine.” Ms. *21.

Chief Justice Parker’s concurrence posits that the voluntary-cessation doctrine is inapplicable but “the father’s requested relief is not moot because that relief is still within the circuit court’s power. When an injunction request concerns the disposition of property or objects, the court’s power is not limited to prohibiting parties to the case from altering or transferring the property or objects. The injunction power extends well beyond that: The court may command parties to regain possession.” Ms. *25.

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