Andrew Sobolak v. Scarlett Sobolak

Judgment rendered July 16, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,319-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ANDREW SOBOLAK Plaintiff-Appellant

versus

SCARLETT SOBOLAK Defendant-Appellee

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Appealed from the
Thirty-Ninth Judicial District Court for the
Parish of Red River, Louisiana
Trial Court No. 38,400

Honorable Luke D. Mitchell, Judge

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WEEMS, SCHIMPF, HAINES & MOORE Counsel for Appellant
By: Kenneth P. Haines

HOLLAND J. MICIOTTO LAW OFFICE Counsel for Appellee
By: Holland J. Miciotto

*****

Before STONE, THOMPSON, and MARCOTTE, JJ.

STONE, J.

Andrew Sobolak (“Andrew”) and Scarlett Sobolak (“Scarlett”) are the

parents of a deceased minor child whose remains are interred at Clear

Springs Cemetery (“Clear Springs”) in Red River Parish, Louisiana.

Andrew filed a petition against Scarlett seeking authorization to have the

child’s remains exhumed and relocated to an alternative cemetery. After a

bench trial, the court ruled in favor of Scarlett ― effectively denying

Andrew’s request. This appeal followed.

FACTS

On July 2, 2022, thirteen-year-old Lyla Sobolak (“Lyla”) died as a

result of a four-wheeler accident and was buried in Clear Springs five days

later. Matthew Pickett (“Matt”), Scarlett’s brother, notified Andrew of

Lyla’s death.

Andrew and Scarlett were divorced in 2015 and continued to amicably

co-parent Lyla and shared equal custody. According to Andrew he and

Scarlett remained “friends” who “saw each other every day” and even “went

on vacations” together. He considered Scarlett a member of his family

despite their divorce and further described their relationship as “wonderful

co-parents.”

On July 7, 2022, just as the family limousine (in which he was a

passenger) arrived at the cemetery, Andrew claims he learned — for the first

time from Scarlett — that funeral attendees were congregated by the tree

where Lyla’s accident occurred and not on Matt’s property as he believed.

Andrew testified that he believed Scarlett’s family would provide

plots next to Lyla for him (and his son) in the event of his death if he

consented to Lyla’s burial at Clear Springs. Andrew initially visited Lyla’s

gravesite weekly but expressed that over time, he could not continue due to

his feelings of emotional trauma. On September 12, 2023, Andrew filed a

lawsuit seeking a court order to remove and relocate Lyla’s remains to what

he considers a “more agreeable” resting place in Bossier Parish.

By the day of trial, the relationship between Andrew and Scarlett (and

her family) was strained, and had deteriorated to the point that Andrew

claims he was prevented from visiting Lyla’s grave in peace.

There has been at least one altercation between Andrew and Scarlett’s

current husband, Chris McMellon (“Chris”), at Lyla’s gravesite occurring in

October of 2023. At trial, when asked whether he had ever met Chris,

Andrew answered in the affirmative and began to describe the details of that

altercation. Counsel for Scarlett lodged an objection as to the “relevance” of

Andrew’s testimony, which the trial court sustained. The trial court,

however, acknowledged the evidence and record of a restraining order in

effect that showed the existence of some hostility between Andrew and

Scarlett (and her husband). The trial court also noted the absence of any

evidence of hostility prior to the filing of Andrew’s petition.

In an undated letter, Andrew obtained the consent of a Clear Springs

representative to exhume Lyla’s remains ― which was admitted into

evidence. The trial court ruled in favor of Scarlett, denying Andrew

authorization for the disinterment. Andrew now appeals from that judgment,

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asserting that he did not consent to Lyla’s final resting place and, as her

father, should be allowed to relocate her remains.

DISCUSSION

Interment - Consent vitiated by fraud or error

Andrew asserts that the trial court should have found that his original

consent to Clear Springs for Lyla’s interment was vitiated by Scarlett’s

failure to disclose the location of the accident in relation to the proposed

burial site. Citing La. R.S. 8:655 (A) (5) ― which provides that the right to

control and authorize the interment of their deceased child belongs to the

surviving parents ― Andrew contends that he has the right to consent to the

burial location of his child. He further asserts that since key facts were

omitted from his consideration, his consent was vitiated by error or fraud (by

omission).

Specifically, Andrew maintains that Scarlett’s nondisclosure of the

proximity of the magnolia tree to the actual gravesite is akin to fraud and

further alleges that Scarlett misrepresented information regarding available

plots next to their child’s plot at the cemetery. Andrew insists that had he

known the truth about either of these facts, he would not have agreed to his

daughter’s burial there.

Consent is vitiated by error, fraud, or duress. La. C. C. art. 1948.

Error vitiates consent only when it concerns a cause without which the

obligation would not have been incurred and that cause was known or

should have been known to the other party. La. C. C. art. 1949. Error may

concern a cause when it bears on the nature of the contract or any other

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circumstance that the parties regarded, or should in good faith have

regarded, as a cause of the obligation. La. C. C. art. 1950. Fraud is a

misrepresentation or a suppression of the truth made with the intention either

to obtain an unjust advantage for one party or to cause a loss or

inconvenience to the other. Fraud may also result from silence or inaction.

La. C. C. art. 1953.

Andrew fully consented to Lyla’s burial at Clear Springs and his

assertions that his consent was vitiated by error or fraud (by omission) are

unconvincing. Every witness’ testimony — including Andrew’s — and the

document(s) presented and introduced at trial are consistent with Andrew’s

consent, particularly given his active involvement in the planning of Lyla’s

funeral. The record is clear that Andrew had access to the same resources as

the child’s mother, such as accident reports, general information, and

discussion (where he could have easily ascertained the proximity of the

magnolia tree to the cemetery plot). We deem it unreasonable and

inconsiderate for Andrew to assign to Scarlett the sole responsibility of

informing him of all matters concerning Lyla’s death while in the midst of

her own grief. Moreover, Andrew attended the funeral service and

interment of his daughter without vocalizing any objection or disapproval to

Scarlett or to Clear Springs. The record is devoid of any actions Andrew

took to contest the burial at that time.

We are unaware of any advantage or benefit attributed to Scarlett by

Andrew as she, too, was mourning the devastating loss of their child.

Arguably, Andrew’s grief seems to have exacerbated his anger regarding

ongoing familial issues with Scarlett ― and perhaps, serves as a catalyst in

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seeking to relocate their daughter’s remains. This assignment is without

merit.

Disinterment - Relocation of a body

Believing his consent was vitiated, Andrew argues that Scarlett, alone,

could not have authorized the burial at Clear Springs without a court order.

He therefore maintains that he is entitled to designate another resting place

in Bossier Parish.

La. R.S. 8:659 (A) (4) provides, in pertinent part, that the remains of a

deceased person may be moved from a cemetery space to another cemetery

with the consent of the cemetery authority and the written consent of the

surviving parents of the decedent. If the required consent cannot be

obtained, a final judgment of the district court of the parish where the

cemetery is situated shall be required. La. R.S. 8:659 (B).

A trial court’s decision regarding the disinterment of a deceased

person requires the exercise of discretion and will not be reversed on appeal

in the absence of a showing that this discretion was abused. In determining

whether an abuse of discretion has occurred, we must recognize that

exhumation of a body is not favored in the law and is against public policy,

except in cases of necessity or for laudable purposes. 25 CJS Dead Bodies §

4(1) (1966); Travelers Ins. Co. v. Welch, 82 F. 2d 799 (5th Cir. 1936);

Choppin v. Labranche, 48 La. Ann. 1217, 20 So. 681 (1896); Nolan v.

Nolan, 125 So. 2d 792 (La. App. 4 Cir. 1961). Spiess v. Greenwood Dev. Co.,

Inc., 542 So. 2d 810 (La. App. 3 Cir. 1989).

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Another factor that must be considered is whether the party asserting

the right to disinterment freely consented to the initial placement and with

the understanding that the interment place selected was to be permanent.

Bunol v. Bunol, 12 La. App. 675, 127 So. 70 (La. App. Orl. Cir. 1930);

Bradley v. Burgis, 25 So. 2d 753 (La. App. Orl. Cir. 1946); Nolan v. Nolan,

supra.

In ruling against Andrew, the trial court adopted the three-pronged test

articulated in Nolan, supra. in its determination on whether to disinter Lyla,

which includes: (1) whether the initial selection place was made with

deliberation and without mental reservation that at some future time removal

might be desired; (2) whether there are evidences of such antagonism and

hostility between the surviving parents as would prevent a surviving parent

from visiting the grave freely and without embarrassment or humiliation;

and (3) whether the decedent had evidenced a preference for one location as

opposed to the other.

First, Andrew’s argument that his consent was vitiated falls short, as

the record supports that Andrew agreed and permitted the interment of Lyla

at Clear Springs with an understanding it would be her permanent resting

place and his (and his son’s) permanent resting place as well. Furthermore,

by Andrew’s own testimony, he freely visited Lyla’s gravesite for more than

a year without incident and without any feelings of emotional trauma.

Andrew submits that there is a lack of testimony regarding hostility or

antagonism between the parties; however, there was evidence of some

hostility shown at trial of an existing restraining order against Andrew.

Lastly, it is undisputed that the minor child, Lyla, expressed no burial

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preference to either Andrew or Scarlett during her lifetime; and as such, they

would make that determination.

To unearth the remains of our dearly departed can sometimes become

a sad duty of the living. But, except in cases of necessity, or for laudable

purposes, the sanctity of the grave should be maintained, and the

preventative aid of the courts may be invoked for that object. Choppin v.

Labranche, supra. Ultimately, the trial court found that Andrew failed to

meet his burden in establishing any compelling reason for the removal of his

daughter’s remains. We agree.

CONCLUSION

Based on our review of the record, we cannot say that the trial court’s

findings were manifestly erroneous or that it abused its discretion in denying

Andrew’s request to disinter his daughter’s remains. We do not believe

Andrew has demonstrated where or how his consent was vitiated. The

requirements for disinterment have not been shown. As a result, we affirm

the judgment of the trial court. All costs of this appeal are assessed to

Andrew.

AFFIRMED. COSTS ASSESSED TO APPELLANT.

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