EMMA JEAN JEANNIE MCCOY APPELLANT v. SETH MCCOY APPELLEE (2026)

These cases are before the Court to resolve a split in authority between two Court of Appeals decisions. In the McCoy case, from Pike County, the circuit court permanently enjoined the reinterment of buried remains, concluding the widow did not have unilateral authority to disinter and reinter her late husband without due consideration from his surviving family. A three-judge panel of the Court of Appeals unanimously affirmed, concluding the applicable statute did not alter the common law rule. In the Daniels case, from McCracken County, the widow had already reinterred her late husband after obtaining approval from the McCracken County Health Department. The circuit court granted her motion to dismiss for failure to state a claim, and a three-judge panel of the Court of Appeals unanimously affirmed; concluding the widow had the right to control reinterment according to the applicable statute and regulation.

The chief statute at issue here is KRS ¹ 367.93117(1)(b), which gives priority to the surviving spouse “to control the disposition of a decedent's body, make arrangements for funeral services, make arrangements for burial or cremation, and to make other ceremonial arrangements after an individual's death ․” We, therefore, must resolve what, if any, conflict there is between the common law on reinternments and the statutory law. After review of the briefs, the Court of Appeals’ decisions, and applicable law, we conclude the common law rule remains in effect and has not been overruled by, nor does its operation conflict with, any statute. There is, however, considerable misunderstanding of the common law rule as evidenced by the Court of Appeals’ decisions in these cases, and the paucity of case law in the Commonwealth's history on the subject. The high court of Kentucky has not rendered an opinion on the subject since 1933. We, therefore, take this opportunity to clarify several points on what the common law is regarding the reinterment of the remains of the dead. After nigh a century of silence, we can be forgiven for dwelling upon ancillary points that will prove useful to bench and bar alike in adjudicating future cases.²

I. Facts

A. Facts and Procedural Posture of the McCoy Case

Jack Donald McCoy ³ married Emma Jean Howard in 2012. After a life in Pike County, he moved to Floyd County with his bride, and there the two remained for the next nine years until he died at the age of sixty-seven on February 24, 2021. After his death, Emma Jean agreed to have him buried in the McCoy Family cemetery in Zebulon, Pike County.

Unfortunately, some kind of trouble occurred between her and one of Jack's children, Seth, from a prior marriage. Emma Jean sought and obtained a permit from the Department of Health (Cabinet for Health and Family Services) to disinter her late husband and reinter him in the Howard McCoy Cemetery, located in Floyd County. The permit was issued on July 13, 2021. For some reason Emma Jean tarried in her purpose. Seth found out about the planned reinterment and filed suit on December 17, 2021, seeking also a temporary injunction. The trial court issued a temporary restraining order on December 20, 2021.

A bench trial was conducted on April 25, 2022. There is no video of the trial in the record.⁴ The trial court's findings of facts include that Jack McCoy's sister testified he had expressed his desire to be buried in the McCoy Family cemetery that included “his parents, his grandparents, and several generations of his family.” The trial court also made a finding of fact that Seth McCoy testified his father had told him he wanted to be buried in the McCoy Family cemetery, and this was further supported by the testimony of a family friend. The trial court also made a finding of fact that Emma Jean had consented to bury Jack in the McCoy Family cemetery. There was no finding of fact regarding any alleged dispute between Emma Jean and Seth, and there was no motion for additional findings of fact pursuant to CR ⁵ 52.02 and 52.04.

The trial court's conclusions of law cited the two leading cases on this issue in Kentucky—Neighbors v. Neighbors, 65 S.W. 607 (Ky. 1901) and Brake v. Mother of God's Cemetery, 65 S.W.2d 739 (Ky. 1933)—as well as Haney v. Stamper, 125 S.W.2d 761 (Ky. 1939). These cases will be discussed more in-depth below. Suffice it to say, the trial court ruled there was a difference in the law between initial burial and reinterment. The trial court held that while Emma Jean had a “paramount right” when it came to the decision to initially bury Jack, that was not true when it came to a decision to reinter him in a new resting place. The trial court concluded that it must consider the wishes of the family in that situation. It then ruled the family testimony was Jack had desired to be buried where he was in fact buried, and that Emma Jean knew of that desire and consented to the burial. The trial court converted the temporary restraining order into a permanent injunction, and quashed the permit issued by the Department of Health authorizing reinterment. Emma Jean appealed.

The Court of Appeals affirmed. Emma Jean did not challenge any findings of fact before the Court of Appeals, nor does she do so before us. Instead, she argues the trial court should have followed the provisions of KRS 367.93117(1)(b) and KRS 213.076(11). Emma Jean argues she has the sole and paramount right to determine where her husband will be buried, including reinterment, pursuant to these statutes. The Court of Appeals disagreed.

The panel held that KRS 367.93117 does not apply to reinterment but by its plain terms only pertains to the initial burial. “The Act regulates who has the right to bury a decedent's body. It does not regulate who has a right to disinter and reinter those buried remains. That is still governed by the common law. The circuit court here recognized this distinction.” Accordingly, the Court of Appeals stated, the “applicability of the Act ends when the initial interment is completed. This is not the first time we have so held, albeit in an unpublished opinion.”⁶ Finally, the Court of Appeals also noted that Emma Jean was wrong in arguing for a supreme or paramount right in her to control her late husband's body. Citing language from the applicable cases, the Court of Appeals held the common law never acknowledged such an absolute power in the widow over her husband's body.

This decision was rendered in March 2025. Emma Jean sought discretionary review, and we granted. Contemporaneously with her case, a similar case was on-going in McCracken County and winding its way through the courts.

B. Facts and Procedural Posture of the Daniels Case

Donald Edward Daniels and his wife, Melissa, were married for twenty years when he unexpectedly died on May 12, 2022. Her father-in-law, Harold Daniels, offered a grave in the family plot at Woodlawn Memorial Gardens which Melissa accepted. Melissa alleges almost immediately afterward Donald's family began to estrange and exclude her. She alleges her brother-in-law told Woodlawn Memorial that Donald had not been married and attempted to make funeral arrangements. Melissa apparently found out about this from employees at Woodlawn Memorial when she went to make the funeral arrangements. She also alleges her in-laws informed her she did not and would not have a burial plot next to her husband; contrary, she claims, to both her and Donald's wishes as they discussed prior to his death. Harold's Complaint confirms he purchased only three plots at Woodlawn Memorial for himself, his son, and his wife who had pre-deceased Donald. Finally, she alleges Harold threatened to evict her from the land upon which sat her trailer, which she and Donald had owned and lived in, unless she accepted his offer to buy the trailer. She alleges she accepted the offer rather than be evicted.

Melissa spoke with employees at Woodlawn Memorial, who told her she had the authority to reinter Donald's body. They also informed her there was a mausoleum available on the other side of the cemetery that would have room for both Donald and her, when her time comes to rest. Melissa purchased the mausoleum spaces. Melissa filed for a permit to reinter Donald's body on November 3, 2022. The permit was approved on November 17, 2022. Donald's body was reinterred on November 25, 2022.

On June 28, 2023, Harold filed suit against Melissa, and Woodlawn Memorial, with claims of tortious interference with a grave against Melissa; wrongfully interred body by a cemetery against Woodlawn Memorial; and trespass against both. Melissa filed a motion to dismiss in lieu of an answer. The trial court granted the motion in a one-page order. Citing KRS 367.93117, the trial court held the statute codifies Melissa's “sole right” to control the body of her husband. Harold appealed.

The Court of Appeals affirmed. This panel held, “[u]nder KRS 367.93117, Melissa clearly had the right to control the original disposition of Donald's remains.” It then further stated,

the General Assembly enacted KRS 213.076(11), which provides that: “Authorization for disinterment, transportation, and reinterment or other disposition shall be required prior to disinterment of any human remains. The authorization shall be issued by the state registrar upon proper application.” Having been given the authority “to regulate the disposal, and disinterment of dead bodies,” the Cabinet for Human Resources promulgated 901 KAR 5:090. “The purpose of this administrative regulation is to establish uniform requirements for the interment, disinterment and reburial of dead bodies in Kentucky.” Id. Section 2(2)(g) of 901 KAR 5:090 provides that an application for disinterment must include “[a] statement by the applicant that [s]he has obtained written permission from all members of the same class of the next-of-kin or an order from a court of competent jurisdiction for the removal of the remains[.]” (Emphasis added.)

Holding Melissa to be in a class unto herself, the Court of Appeals reasoned she did not have to get any agreement with any other person prior to reinterment. Based upon these statutes and regulations, the Court of Appeals affirmed. This created a split in authority and, when Harold sought discretionary review, it was granted.

We now address the merits.

II. Standards of Review

Trial courts have authority to issue injunctions to prevent the violation of a clearly established legal right. In so doing, the trial court is

vested with a sound discretion, not only as affects the granting of the relief at all, but also as to when the injunction that may be granted shall take effect, and which also includes the right to impose terms and conditions looking to the protection of the rights of all parties connected with the litigation.

Gregory v. Crain, 163 S.W.2d 289, 291 (Ky. 1942). A trial court abuses its discretion in the issuance of a permanent injunction when it relies upon clearly erroneous factual conclusions; relies upon erroneous conclusions of law; or its application of the law to the facts is otherwise “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 162 (Ky. 2009).

As for a trial court's granting of a motion to dismiss,

[a] motion to dismiss for failure to state a claim upon which relief can be granted is reviewed de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). It presents only a question of law. Id. The pleadings of the plaintiff must be taken as true. Id. Indeed, by filing a motion to dismiss for failure to state a claim upon which relief can be granted, the party in favor of dismissal necessarily “admits as true the material facts of the complaint.” Upchurch v. Clinton Cnty., 330 S.W.2d 428, 429-30 (Ky. 1959).

RAZ, Inc. v. Mercer Cnty. Fiscal Ct., 706 S.W.3d 17, 21 (Ky. 2024).

III. Analysis

A. The Common Law

There is a paltry amount of case law on this issue within Kentucky. As noted, Neighbors and Brake are the only published decisions addressing the issue. There have been four unpublished Court of Appeals opinions on the topic, but four unpublished decisions are not the best evidence of what the law is. In this instance, they are nonetheless the only evidence available in Kentucky. All have interpreted Neighbors and Brake consistently.⁷ Between 1933 and 2013, there were no appellate decisions on the topic whatsoever. This is strong evidence that Neighbors and Brake gave a clear and readily workable rule to guide the trial courts which have followed them with equity and justice.

As will be shown, a survey of decisions from other states confirms the understanding of these two cases that has prevailed for the last ninety-three years is consistent with the vast majority of states. It is only in the last two decades that this issue is rearing its head again, and we may speculate that it is due to changing social circumstances. Add in the statutory law which did not exist when Neighbors and Brake were rendered, and the conclusion is irresistible that clarity is needed. A new era demands a new statement of what the law is, and we would be remiss in failing to give it.

The first case addressing the issue of reinterring a dead body is Neighbors, 65 S.W. at 608. In this case, the wife and her children favored removal of her late husband's body nearer to her home, whilst the late husband's siblings resisted and preferred his original resting place remain undisturbed. Id. The wife desired reinterment from a cemetery in Elizabethtown to a new grave site in Glendale. Id. The reason for this was the prohibitive amount of travel she had to engage in to visit her husband's grave and tend to it with the care she desired. Id. The distance she had to travel from her home to the original grave site was nine miles in a time when horse and buggy was still the common mode of travel. Id. The Court would ultimately affirm to allow reinterment. Id.

In a one-page opinion, the Court held,

[t]he current of authority in this country is to the effect that there is not a property right to a dead body in a commercial sense, but there is a right to bury it which the courts of law will recognize and protect. This right embraces the right to select the place of burial and to change it at pleasure. This right, in the absence of testamentary disposition of the body, belongs to the next of kin.

Id. The Court then quoted the case of Larson v. Chase, 50 N.W. 238, 239 (Minn. 1891) in support, only to conclude “[t]he claim of right by the brothers and sisters to prevent the removal of the remains has no foundation in law.” Id. This is an odd statement as it is contradicted by the Minnesota Supreme Court decision cited. Larson stated in full:

The general, if not universal, doctrine is that this right belongs to the surviving husband or wife or to the next of kin; and, while there are few direct authorities upon the subject, yet we think the general tendency of the courts is to hold that, in the absence of any testamentary disposition, the right of the surviving wife (if living with her husband at the time of his death) is paramount to that of the next of kin. This is in accordance, not only with common custom and general sentiment, but also, as we think, with reason. The wife is certainly nearer in point of relationship and affection than any other person. She is the constant companion of her husband during life, bound to him by the closest ties of love, and should have the paramount right to render the last sacred services to his remains after death. But this right is in the nature of a sacred trust, in the performance of which all are interested who were allied to the deceased by the ties of family or friendship, and, if she should neglect or misuse it, of course the courts would have the power to regulate and control its exercise. We have no doubt, therefore, that the plaintiff had the legal right to the custody of the body of her husband for the purposes of preservation, preparation, and burial, and can maintain this action if maintainable at all.

Larson, 50 N.W. at 239 (emphasis added). In another case also cited by Neighbors for support, the Supreme Court of Rhode Island held,

In no case is it an absolute right, but, as this court has already said, “a sacred trust for the benefit of all who may, from family or friendship, have an interest in it,” which should be properly administered; and, as we now say, primarily administered by the wife, due regard being had to the circumstances of the case.

․

[W]e are of opinion that, as a general rule, the primary right to control the burial of a husband should be with the widow, in preference to the next of kin, dependent, however, upon the peculiar circumstances of the case, or the waiver of such right by consent or otherwise.

Hackett v. Hackett, 26 A. 42, 43 (R.I. 1893).

This issue would come up again in Brake v. Mother of God's Cemetery, 65 S.W.2d 739 (Ky. 1933). In that case, a widow, after burying her husband, “went to live with her people who reside in Columbia Park, Ohio, some distance from Cincinnati[,]” and experienced a great deal of inconvenience in visiting her husband's grave. Id. at 739. She testified she usually had to spend the night in town to make one trip a month to the grave. Id. She also testified to “some friction between her and the appellees regarding the upkeep of the lot upon which her husband is buried, and considerable friction arising out of her request to remove the remains, which friction, of course, will not be obviated no matter how this case may be decided.” Id. The widow, therefore, sought to have her late husband reinterred in a new grave more convenient to her in another city. Id.

After quoting the Neighbors decision, the Court took up the argument that

while the Neighbors Case was decided correctly on its facts, the language of the opinion is too broad, and that, whatever may be the paramount rights of a surviving spouse to inter the remains of a deceased consort, yet, where the question is one of disinterment for the purposes of reinterment, the modern rule is not as broad as the rule is stated in the Neighbors Case, and that the proper rule is as laid down in the case of Yome v. Gorman, 242 N. Y. 395, 152 N. E. 126, 128, 47 A. L. R. 1165, wherein Judge Cardozo, speaking from the New York court, said that the wishes of the surviving spouse are not supreme and final when the body has been laid at rest and the aid of equity is invoked to disturb the quiet of the grave; that in such state of case there will then be “due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association.”

Id. at 740. The Brake court then stated, “whether this case be considered under the rule as broadly stated in the Neighbors Case or under the rule contended for by the appellees and as expressed in the Yome Case, the result must be the same.” Id. at 740. While this is not an explicit adoption of Yome, the unpublished decisions of the Court of Appeals in this Commonwealth, including the two presently under review, have universally understood Brake as endorsing the rule. Hall v. Mullins, 2013 WL 5603585, at *1; Strader, 2023 WL 2335906, at *3; McCoy v. McCoy, No. 2023-CA-1089-MR, 2025 WL 807445, at *2 (Ky. App. Mar. 14, 2025), review granted (Oct. 15, 2025), not to be published; Daniels v. Daniels, No. 2023-CA-1027-MR, 2025 WL 1141918, at *3 (Ky. App. Apr. 18, 2025), review granted (Oct. 15, 2025), not to be published.

Yome relied chiefly upon the case of Pettigrew v. Pettigrew, 56 A. 878 (Pa. 1904). Pettigrew has been cited in numerous state courts over the decades as an accurate statement of the common law and the substance of its decision is followed by the same. See e.g., Sacred Heart of Jesus Polish Nat'l Cath. Church v. Soklowski, 199 N.W. 81, 82 (Minn. 1924); Goldman v. Mollen, 191 S.E. 627, 632-34 (Va. 1937); Rivers v. Greenwood Cemetery, 22 S.E.2d 134, 135 (Ga. 1942); Mallen v. Mallen, 520 S.W.2d 736, 738 (Tenn. Ct. App. 1974); Spanich v. Reichelderfer, 628 N.E.2d 102, 106 (Ohio 1993); In re Spiers, 992 So. 2d 1125, 1128 (Miss. 2008).

Pettigrew summarized the whole law:

The result of a full examination of the subject is that there is no universal rule applicable alike to all cases, but each must be considered in equity on its own merits, having due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association. Subject to this general result, it may be laid down: First. That the paramount right is in the surviving husband or widow, and, if the parties were living in the normal relations of marriage, it will require a very strong case to justify a court in interfering with the wish of the survivor. Secondly. If there is no surviving husband or wife, the right is in the next of kin in the order of their relation to the decedent, as children of proper age, parents, brothers and sisters, or more distant kin, modified, it may be, by circumstances of special intimacy or association with the decedent. Thirdly, How far the desires of the decedent should prevail against those of a surviving husband or wife is an open question, but as against remoter connections, such wishes especially if strongly and recently expressed, should usually prevail. Fourthly. With regard to a reinterment in a different place, the same rules should apply, but with a presumption against removal growing stronger with the remoteness of connection with the decedent, and reserving always the right of the court to require reasonable cause to be shown for it.

Id. at 880 (emphasis added). Based upon the numerous decisions of state courts throughout the country and over the last hundred years, of which we have only cited a sampling, we are convinced this is a true statement of the law. This rule is consonant as well with modern restatements and jurisprudence summaries. See 22A Am. Jur. 2d Dead Bodies § 49;⁸ 25A C.J.S. Dead Bodies § 19.⁹

Whatever the paramount or superior right a widow has to control the original burial of her husband's remains absent some declaration by him, there is no right in her person to reinter the remains whenever or for whatever reason she so pleases. “The right of a surviving spouse to the custody of the dead body for purposes of burial is not an absolute right, but one which, while normally observed, is nonetheless subject to judicial control.” Spanich, 628 N.E.2d at 104. Indeed, as the Spanich court further noted, the proposition that a widow has an absolute right in the corpse of her husband which no other family member, not even his own son or daughter, have a right to interfere with, taken to its logical conclusion, would mean the widow could reinter the husband's body yearly upon the vigil to a new cemetery anywhere in Kentucky. Id. at 106-07. The position is reduced to absurdity; therefore, the law must admit the widow's right is not absolute if it is not to make a mockery of final resting places, and the other family members are entitled to bring an action so that a court can adjudicate the issue upon its own particular facts whenever the issue should arise.

Thus, the rule as quoted in Haney v. Stamper—that

[t]he right of the surviving spouse to prescribe the time and manner of burial necessarily excludes the rights of others even though they be the next of kin. The two rights cannot occupy the same space at the same time; and, unless the right of the surviving spouse is to be deemed wholly illusory, it must be exclusive[,]

—must be understood in context. 125 S.W.2d 761, 762 (Ky. 1939). First, it has nothing to say about reinterment as that was not the issue. Id. The issue was the widow “would not defer the burial of her husband a sufficient length of time” to allow her husband's brother to travel from Oklahoma to Kentucky to attend the funeral. Id. Stamper, therefore, has no applicability in these cases. Stamper remains good law—family members have no legally enforceable right to be present at a funeral, and control of the timing of a funeral, under the common law, is reposed to the widow. Id. Stamper does not hold that a widow has an absolute authority to reinter the body of her husband whenever she pleases.

After review, we believe the law thoroughly contradictory to the language in Neighbors that “[t]he claim of right by the brothers and sisters to prevent the removal of the remains has no foundation in law[,]” and that the widow has a right “to change it [i.e., the burial place] at pleasure.” 65 S.W. at 608. These rules have no basis in the authorities the Neighbors court cited; they have little support in other contemporary cases; and as a modern rule it has no support at all. We believe the courts of Kentucky have consistently read Neighbors in tandem with Brake, so that Kentucky law has consistently followed the majority rule that family members can bring claims regarding burials and reinterment even against a widow, and that reinterment is not a right but subject to judicial approval when challenged. Nonetheless, we abrogate Neighbors insofar as it endorses these erroneous rules.

Under the common law, the widow's right to control the initial burial of her husband is not a right for her own enjoyment but is rather a trust reposed in her by operation of American law which, having no ecclesiastical courts, naturally devolved the right upon the spouse or surviving next-of-kin. In so doing, the right is also accompanied by a duty to dispose of the body respectfully and on behalf of the family, not merely herself. Absent a declaration by the deceased, the widow's decision as to the initial burial is paramount, and “it will require a very strong case to justify a court in interfering with the wish of the survivor.” Pettigrew, 56 A. at 319.

Reinterment is a distinct issue, however, and under the common law is not favored. Courts, indeed, have authority to intervene to prevent reinterment in a manner the decedent would not have consented to.¹⁰ There must be good cause shown to allow the reinterment of a body once laid to rest.

A few [good causes] which might be mentioned are: the fulfillment of the surviving spouse's expectation, where it was understood that the original interment was to be only temporary; the attainment of side-by-side burial plots; reinterment in a location more accessible to the spouse; [and] reinterment in a location removed from family hostility.

Mallen, 520 S.W.2d at 738; see also Spanich, 628 N.E.2d at 104-06 (listing several factors courts typically consider in reinterment cases).

But what of all this ink upon the common law if the statutes have overruled it?

The common law is operative in the Commonwealth until a particular rule is repealed by statute or determined repugnant to the constitution itself. Ky. Const. § 233. When the General Assembly undertakes to abolish the common law, “the intention to abrogate the common law is not presumed. The intention to repeal must be clearly apparent.” Ruby Lumber Co. v. K.V. Johnson Co., 299 Ky. 811, 187 S.W.2d 449, 453 (1945). Moreover, “[a] statute does not impliedly repeal the common law where they are not inconsistent and both can stand.” Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874, 878 (1922) (internal quotation and citation omitted). “It is a maxim of the common law that a statute made in the affirmative, without any negative, express or implied, does not take away the common law.” Id. at 877 (internal quotation and citation omitted).

Simpson v. Wethington, 641 S.W.3d 124, 129 (Ky. 2022). As for regulations issued by executive agencies, there is no authority for the executive to overrule the common law. Such authority is expressly confided to the General Assembly or the people, via constitutional amendment. Ky. Const. § 233. This Court also has authority to overrule, modify, or expand the common law as it is “the child of the courts. We are responsible for its direction.” Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984). For an executive agency to issue a regulation overruling the common law, the authority to do so must be found in the enabling legislation itself.

In situations when Congress grants an agency the authority to enact regulations that overrule common law, the question of whether the agency exercised that power through the adoption of a particular regulatory scheme should be evaluated under the same approach that the Court used in [United States v.] Texas[, 507 U.S. 529 (1993)] for evaluating whether a congressional statute modified the common law.

ABN Amro Bank N.V. v. United States, 34 Fed. Cl. 126, 132-33 (1995). If the common law has not been overruled either by the constitution, a statute, or this Court then it “has equal authority with statutory law.” Wilson v. Commonwealth, 160 S.W.2d 649, 651 (Ky. 1942).

B. The Statutory Law

We interpret statutes according to their plain meaning. Samons v. Ky. Farm Bureau Mut. Ins. Co., 399 S.W.3d 425, 429 (Ky. 2013). “[W]e give the words of the statute their literal meaning and effectuate the intent of the legislature. We have repeatedly stated that we ‘must not be guided by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy.’ ” Id. (quoting Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004)). It is also elementary that the executive branch has no authority to overrule, ignore, or exceed statutory law. “[A]n agency may not assume any power not expressly granted to it by the general assembly. An administrative body's powers are defined and limited by the agency's enabling statute.” Fam. Tr. Found. of Ky., Inc. v. Ky. Horse Racing Comm'n, 620 S.W.3d 595, 601 (Ky. 2020) (internal citations omitted). An agency that acts in excess of granted powers acts arbitrarily in violation of Ky. Const. § 2. Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty. Plan. & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964).

In 1990, the General Assembly passed KRS Chapter 213 to create “a vital statistics program which shall maintain and operate the only official system of vital statistics in the Commonwealth.” KRS 213.016. These vital records pertain to births, deaths, adoptions, marriages, and annulments. KRS 213.156. As part of this comprehensive statute, the General Assembly passed KRS 213.076 which generally pertains to death certificates. KRS 213.076(1) and (2) requires a death certificate be submitted, who is responsible for filing it, and the process for obtaining corrections or additional information. KRS 213.067(3)-(5) regulates medical certifications of death. KRS 213.067(7), (9), and (10) prohibits any burial, cremation, or disposal of a body absent the filing of a provisional certificate of death and what is to be done if a body must be buried prior to the filing of such certificate. KRS 213.076(8) requires burial transit permits for bodies received from out-of-state. Finally, KRS 213.076(11) states,

Authorization for disinterment, transportation, and reinterment or other disposition shall be required prior to disinterment of any human remains. The authorization shall be issued by the state registrar upon proper application. The provisions of this subsection shall apply to all manners of disposition except cremation and without regard for the time and place of death. The provisions of KRS 381.765 shall not apply to remains removed for scientific study and the advancement of knowledge.

This statute is part of a comprehensive scheme establishing health regulations and record-keeping. It says nothing explicitly against the common law. It makes no mention of widows, next-of-kin, nor does it provide any kind of rule of decision-making to guide courts in disputes over reinterments. We fail to see a “clearly apparent” intent to overrule the common law. Wethington, 641 S.W.3d at 129. Nor do we perceive how the operation of the common law conflicts with the statute. Laws pertaining to the burial of the dead have long been understood to be within the authority of “the state in the exercise of its police powers.” Brunton v. Roberts, 97 S.W.2d 413, 415 (Ky. 1936). It is an obvious issue of health and safety. KRS 213.076(11) does nothing more than ensure the Commonwealth has properly exercised its police power in the event of reinterment. It says nothing about who shall have the authority within the family of the decedent to decide if, when, where, why, and how reinterment shall be conducted. Moreover, agencies and officials “can only act within the limits of the authority expressly or by necessary implication conferred upon them by law.” Dade Park Jockey Club v. Commonwealth, by Auditor of Pub. Accts., 69 S.W.2d 363, 365 (Ky. 1933). Thus, the question becomes does the operation of KRS 213.076(11) necessarily require by implication the authority to overrule the common law? Absolutely not. KRS 213.076(11) establishes a supervening authority over reinterments, but is wholly indifferent as to who, within the family of the decedent, exercises the authority over if, when, where, why, and how reinterment shall be conducted. Its operation does not require by necessary implication authority to overrule the common law.

Because we find no intention, express or implied, in the statute to overrule the common law, reliance upon 901 K.A.R. 5:090(2)(2)(g) is misplaced. The General Assembly did not give the Cabinet for Health and Family Services authority to overrule the common law via KRS 213.076(11), thus, the regulation must be interpreted in a manner consistent with the common law.

Next, in 2016, the General Assembly passed a bill regulating funeral planning within KRS Chapter 367. There are eleven separate provisions, not all of which need be mentioned. Generally speaking, statutory law now requires “a funeral planning declaration setting forth the declarant's preferences regarding the manner of disposition of the declarant's remains that is executed under KRS 367.93101 to 367.93121 and in a form prescribed by administrative regulation promulgated by the Office of the Attorney General[.]” KRS 367.93101(3). “A declaration shall designate an individual to serve as the designee, or if no designee is designated shall provide instruction concerning funeral services, ceremonies, and the disposition of remains after death.” KRS 367.93103(3). There are eight general topics upon which a declarant may give instructions, including disinterment. KRS 367.93105. A declaration is “binding as if the declarant were alive and competent.” KRS 367.93109(3).

If there is no person designated by the declarant, or if there is no declaration by the decedent in existence, then the statute regulates who shall assume “the right to control the disposition of a decedent's body, make arrangements for funeral services, make arrangements for burial or cremation, and to make other ceremonial arrangements after an individual's death[.]” KRS 367.93117(1). The first person on this list is the surviving spouse. Id. at (1)(b). The list then proceeds to a surviving adult child of the decedent, or a majority of adult children if multiple; surviving parents; adult grandchildren; adult siblings; and then to the next applicable degree of kinship the same as intestacy. Id. at (1)(c)-(g). What a funeral means under this statute is “the ceremonies or services related to the final disposition and interment of a human body or body parts[.]” KRS 316.010(6); KRS 367.93101(5). We agree with the Court of Appeals in the McCoy panel that this statute regulates the authority of one to govern the disposition of the decedent, in the absence of a valid declaration by him or her, but only as to the initial burial or cremation. It does not govern reinterment.

We conclude the statute does not overrule the common law but codifies it. The common law held the widow's authority to control the burial of the spouse was paramount “in the absence of testamentary disposition of the body[.]” Neighbors, 65 S.W. at 608. KRS 367.93109 requires a funeral declaration rather than a testamentary statement, but the outcome is the same: the decedent's wishes are “binding as if the declarant were alive and competent.” KRS 367.93109(3). In the absence of a designee or funeral declaration, KRS 367. 93117(1) gives a list of who shall have priority to make decisions regarding the disposition of the decedent's body and other funeral and ceremonial arrangements. The surviving widow takes precedence. This, too, is consistent with the common law. Pettigrew, 56 A. at 319.

But “[w]e do not believe the statutory right is an absolute one or that a court is powerless to use its equitable powers to prevent the abuse of the disinterment statute by a surviving spouse.” Spanich, 628 N.E.2d at 106. Since the decedent's funeral declaration is binding upon the widow, it is possible that a widow may ignore or attempt to modify the funeral declaration. The dead cannot file suit in a court of law. In such an event, the next-of-kin, particularly children, would be the obvious ones to bring an action to compel the widow to adhere to the funeral declaration. We, therefore, conclude the common law as to initial burials has been codified rather than overruled. The common law as to reinterments, however, remains alive and well and has not been codified because, as the McCoy panel noted, the “applicability of the Act ends when the initial interment is completed.”

To the argument that the statute governs reinterment under the broad wording of funeral and burial, we disagree. “Statutes are to be construed with reference to the principles of the common law in force at the time of their enactment, and are not to be understood as affecting any change therein beyond that which is expressed, or which follows by necessary implication therefrom.” Cincinnati, N.O. & T.P. Ry. Co. v. Wilson's Adm'r, 171 S.W. 430, 432 (Ky. 1914). “[I]t is not to be presumed that the Legislature intended to amend the common law in any respect other than those clearly indicated by the statute[.]” Alfrey v. Shouse, 163 Ky. 333, 173 S.W. 792, 793 (1915).

The General Assembly is presumed to be aware of the common law and must have known a distinction exists between initial burials and reinterments, yet it is silent on the latter. If the General Assembly intended that funeral and burial services cover reinterments then why did it single out for separate mention “disinterment” in KRS 367.93105(8) despite already mentioning “disposition of the declarant's remains” and “funeral service” in the preceding subsections of that provision? Id. at (1)-(4). The statute itself demonstrates the presumption—the General Assembly knew the distinctions in the common law and legislated accordingly. The statute treats disinterment/reinterment as distinct from initial burials but is silent on who shall have authority over reinterments, as well as when, where, why, and how. Thus, the common law regarding reinterments remains in full effect.

C. Application as to the McCoy Case

The trial court held a bench trial, heard testimony, issued findings of facts, conclusions of law, and permanently enjoined the reinterment of Jack McCoy from his original resting place in Pike County. Emma Jean has not challenged any of those factual findings as clearly erroneous nor cited anywhere in the record that would demonstrate clear error. The trial court's conclusions of law were correct in that it recognized a distinction between initial burials and reinterments and properly considered evidence from other next-of-kin as to their desires, as well as the desire of Jack McCoy that he expressed to them regarding his burial place.

The decision to issue a permanent injunction is reviewed for abuse of discretion. Crain, 163 S.W.2d at 291. Emma Jean's entire argument is that she had authority to control reinterment pursuant to the statutes discussed above, and we have disagreed with her argument as a matter of law. We cannot say the trial court abused its discretion. The trial court concluded the evidence established Jack McCoy wanted to be buried where he was in fact buried. Emma Jean concurred with that initial decision. The trial court did not find any good cause to allow the reinterment of Jack McCoy from Pike County to Floyd County. It made no mention of any alleged conflict between Emma Jean and Seth. “This court may not reverse the trial court because of its failure to make a specific finding of fact on this issue since [Emma Jean] made no request for such a finding.” O'Neal v. O'Neal, 122 S.W.3d 588, 590 (Ky. App. 2002) (citing CR 52.02). The Court of Appeals is affirmed.

D. Application as to the Daniels Case

The gist of Harold Daniels’ Complaint against his daughter-in-law is that his son expressed his desire to be buried in the family plot at Woodlawn Memorial beside his mother (already deceased) and his father, when the latter was also laid to rest. The Complaint then states that Melissa “orchestrated” the removal of Donald from his original burial plot to a mausoleum on the opposite side of the same cemetery, which now prevents he and other family members of the “ability to stand over or to touch Donnie's burial plot in remembrance of him.”

Remembering that this case is before us upon a motion to dismiss, which presents only a question of law, we are here to review issues, not arguments. Gasaway v. Commonwealth, 671 S.W.3d 298, 313 (Ky. 2023). “Indeed, ‘appellate review ․ is to be conducted in light of all relevant precedents, not simply those cited to, or discovered by’ the trial court. Id. at 314 (quoting Elder v. Holloway, 510 U.S. 510, 512 (1994)).

We have surveyed the cases from across the country and find the overwhelming outcome to be that where the widow seeks to reinter the husband in a different plot within the same cemetery to facilitate burial together, then that is a valid exercise of her authority which does not unduly infringe upon the claims of other family members. In re Schechter, 261 A.D. 926 (N.Y. App. Div. 1941); Rivers v. Greenwood Cemetery, 22 S.E.2d 134 (Ga. 1942); In re. Keck, 171 P.2d 933, 936 (Cal. Ct. App. 1946); Leschey v. Leschey, 97 A.2d 784, 785 (Pa. 1953). Only in extraordinary circumstances will courts intervene to prohibit such reinterment. Davis v. True, 963 So.2d 1271, 1272 (Miss. Ct. App. 2007). Melissa argues she was informed she did not have a place beside her husband to be laid to rest when her time comes to repose and that was the purpose of reinterment. Harold's Complaint confirms this as it states Harold only purchased three plots: one for his wife, one for his son, and one for him.

We take two opinions from Ohio to be sufficient to summarize this issue.

The courts have on many occasions intervened to prevent the removal of a dead body from one cemetery to a distant cemetery where the removal has occasioned great inconvenience to the next of kin resulting in depriving them of availability of the sepulchre for them to pay their proper tribute of respect to the dead. Likewise, the courts have refused to restrain the removal of a body from one grave to another in the same cemetery over the objection of next of kin where the grave to which the removal was sought to be made was for some reason or another better located, or possessed of advantages over the place of original interment.

Tripp v. Sexauer, 1941 WL 543, at *3 (Ohio Com. Pl. Sept. 3, 1941), aff'd, 39 N.E.2d 161 (Ohio Ct. App. 1941). The appellate court reviewing this decision opined in similar circumstances here,

[w]hile the defendants are charged with breach of faith and sharp practice, the conspiracy charged and the acts charged, do not seem to us to have produced any unlawful act or any excess of delegated authority. There is nothing pleaded that indicates any injustice or harm done either to the body or to the next of kin.

Tripp v. Sexauer, 39 N.E.2d 161, 162 (Ohio Ct. App. 1941). The same can readily be said here. Melissa is charged by her father-in-law with conspiring to maliciously remove her late husband's remains to a different part of the same cemetery. Even accepting that as true, it has not “produced any unlawful act or any excess of delegated authority[,]” on her part. Id.

There is, however, the wrinkle that Woodlawn Memorial is also a defendant in the Daniels case. The trial court's order of dismissal only mentioned Melissa. The Court of Appeals concluded “the substance of the order effectively terminated Harold's related claim against” Woodlawn Memorial. We disagree. Woodlawn Memorial and Harold Daniels have intertwining property rights between the cemetery and Donald's original burial plot, owned by his father. “Ordinarily, the purchaser of a lot in a cemetery acquires only an easement or license to make interments therein exclusive of others.” Brunton, 97 S.W.2d at 415. The duty of Melissa, to the extent there is one, to her father-in-law is distinct from the duty of Woodlawn Memorial. Owners and operators of cemeteries have a “duty to protect and look after the graves in the cemetery, and further, the law imposes upon them the duty of notifying the next of kin of the disinterment of any body buried in the cemetery[.]” Resthaven Mem'l Cemetery v. Volk, 150 S.W.2d 908, 911 (Ky. 1941). Harold's Complaint alleges Woodlawn Memorial failed to notify him of the disinterment and we must accept that allegation, at this stage in the litigation, as true. Even though Melissa properly exercised her authority, that does not as a matter of law absolve Woodlawn Memorial of its duty toward Harold, as both a known next-of-kin and as easement holder in Donald's grave.

Woodlawn Memorial has not filed any brief before this Court. Melissa's motion to dismiss at trial was filed in lieu of an answer and only claims to be filed on her behalf. Indeed, it appears from Harold's Notice of Appeal that Woodlawn Memorial had separate counsel from Melissa although we can find no entry of appearance in the trial record. We cannot even find where Woodlawn Memorial answered the Complaint or joined in Melissa's motion to dismiss. It appears to us the Court of Appeals was concerned about its jurisdiction, as the case at trial concerned multiple claims against multiple parties and only the claims against Melissa were dismissed though Woodlawn Memorial was joined in the appeal. That only the claims against Melissa were resolved does not, in and of itself, prevent an appellate court from taking jurisdiction of an appeal by the non-prevailing party. CR 54.02.

There was also a lack of finality language in the trial court's order of dismissal. There is plenty of case law holding such finality language is required but we have also resisted the formalistic tendency to treat finality language as talismanic, the failure to properly recite it barring the door of the Court. Sec. Fed. Sav. & Loan Ass'n of Mayfield v. Nesler, 697 S.W.2d 136, 138-39 (Ky. 1985). “It is true that the mere recitation of the ‘final and appealable’ provision of CR 54.02 is not determinative of the matter.” Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469, 470 (Ky. 1994). If the order being appealed leaves nothing else to adjudicate regarding the rights of a party, then it is final. Nesler, 697 S.W.2d at 138-39. Here, the trial court's statement at the end of its order granting the motion to dismiss was: “Therefore, there being no legal grounds by which the plaintiff may prevail, defendant's Motion to Dismiss is GRANTED.” We think this language falls within the rule as understood by the above-cited authorities.

Therefore, we disagree with the Court of Appeals. It understood KRS 367. 93117 and KRS 213.076(11) as overruling the common law regarding reinterments, but they do not. They do so neither explicitly nor implicitly. Although the Court of Appeals erred in its understanding of the statutory law, it reached the correct result in affirming dismissal of the claims against Melissa. The common law does not generally regard the reinterment of the decedent by the widow in a different plot within the same cemetery as raising sufficient concern to justify the intervention of the courts, absent some extraordinary circumstance. In our view, Harold's Complaint, taken as true, does not identify any extraordinary circumstances as a matter of law. The Court of Appeals also erroneously held the trial court finally adjudicated Woodlawn Memorial's rights and duties. That is incorrect. Therefore, remand is necessary to the trial court insofar as Harold's claims against Woodlawn Memorial were not and have not been finally adjudicated by the trial court.

IV. Conclusion

For the aforementioned reasons, we affirm the Court of Appeals in the McCoy case, No. 2023-CA-1089. We affirm in part as to result only the Court of Appeals in the Daniels case, No. 2023-CA-1027, insofar as its result in affirming the dismissal of the claims against Melissa Daniels was correct. We remand the Daniels case to McCracken Circuit Court for further proceedings consistent with this opinion against Woodlawn Memorial Gardens.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   The facts of the cases justify the Court's usage of the gendered term “widow,” but it should be noted the rules are equally applicable to all. The common law recognizes no distinction in authority based on gender.

3.   Jack apparently went by “Don” in life and the record is replete with references to him as such. In the companion case, however, the decedent was also named Donald and went by Donnie. To avoid confusion, we refer to Jack by his first name.

4.   “It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

5.   Kentucky Civil Rules of Procedure.

6.   The unpublished decision is Strader v. Strader, No. 2021-CA-1069-MR, 2023 WL 2335906 (Ky. App. Mar. 3, 2023).

7.   The cases, besides the two presently under review, are Hall v. Mullins, No. 2012-CA-001595-MR, 2013 WL 5603585, at *1 (Ky. App. Oct. 11, 2013) and Strader, No. 2021-CA-1069-MR, 2023 WL 2335906 (Ky. App. Mar. 3, 2023).

8.   “The disinterment or disturbance of the body after burial is subject to statute or the authority and control of the courts and is not a right.” (internal footnotes removed).

9.   “There is no right to disinterment of a dead body ․ Courts have jurisdiction to resolve disputes regarding disinterment; once a body has been buried, it is subject to the control of a court of equity.” (internal footnotes removed).

10.   See e.g., Goldman v. Mollen, 191 S.E. 627, 631-33 (Va. 1937) (decedent was a rabbi of the Orthodox Jewish faith and buried in an Orthodox Jewish cemetery. The widow, after his death, converted to Reform Judaism and was buried in a Reform Jewish cemetery. Children sought to reinter father in the cemetery beside their mother. The court affirmed the trial court's decision to refuse reinterment on the grounds that the father was beyond doubt a faithful adherent to Orthodox Judaism and would not have consented to be buried in a Reform Jewish cemetery); cf. Sacred Heart of Jesus Polish Nat'l Cath. Church v. Soklowski, 199 N.W. 81, 83 (Minn. 1924) (decedent lived last two years of his life as a member of a schismatic Catholic congregation. His wife and children were adherents to the regular Roman Catholic Church. He was originally buried in the schismatic cemetery. His family sought to reinter him in the Roman Catholic parish and provided proof that upon his deathbed, decedent had called for the Roman Catholic priest of his former parish to administer Last Rites which were duly performed. The court held this was good evidence the decedent died in the Roman Catholic faith and would not object to burial in its cemetery. Reinterment was approved). It is important to note that “[i]n determining such controversies the courts do not permit the civil law to be circumscribed or superseded by the canon law of a religious faith. However, the tenets of the faith may have an indirect efficacy in determining whether a body may be disinterred or removed.” Mallen, 520 S.W.2d at 737.

OPINION OF THE COURT BY JUSTICE CONLEY AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

All sitting. All concur.