Submitted: February 15, 2017
from the Circuit Court of Mason County The Honorable David W.
Nibert, Judge Civil Action No. 15-P-18
M. Bastress, Jr. Morgantown, West Virginia Counsel for the
R. Teare, Jr. Spilman, Thomas & Battle, PLLC Charleston,
West Virginia Counsel for the Respondent
"This Court reviews the circuit court's final order
and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a
clearly erroneous standard; conclusions of law are reviewed
de novo." Syllabus Point 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
cases of disinterment of human remains, an abuse of
discretion standard governs our review of the circuit
court's final order and ultimate disposition in the
exercise of its powers in equity.
"West Virginia Code § 29–1–8a (1993)
preempts common law with respect to the matters specifically
addressed in the statute. The statute preempts all common law
claims involving 'historic or prehistoric ruins, burial
grounds, archaeological site, or human skeletal remains,
unmarked grave, grave artifact or grave marker of historical
significance.' W. Va. Code § 29-1-8a(c)(1)."
Syllabus Point 2, Hairston v. General Pipeline
Construction, Inc., 226 W.Va. 663, 704 S.E.2d 663
appeal arises from a petition filed in the Circuit Court of
Mason County seeking authorization to disinter the remains of
Chester Howard West, a World War I Medal of Honor recipient,
and bury him with full military honors at the Gold Star
Family Memorial Monument located within the Donel C. Kinnard
Memorial State Veterans Cemetery in Institute, West Virginia
("Veterans Cemetery"). Hershel Woodrow Williams, a
Medal of Honor recipient, filed the petition for Mr. West to
be recognized as a recipient of the highest award a citizen
can receive for bravery and valor. In an order dated March
23, 2016, the Circuit Court of Mason County granted Mr.
Roger VanSickle urges this Court to reverse the order below
on the grounds that the circuit court lacks the authority to
rule on the question of disinterment of Mr. West's
remains. Alternatively, Mr. VanSickle argues that the circuit
court abused its discretion in concluding that the equities
favor disinterment over the wishes of the surviving spouse at
the time of Mr. West's death and the living VanSickle
Williams argues that the circuit court properly exercised its
equitable jurisdiction and carefully balanced the equities in
favor of disinterment of Mr. West's remains. He contends
that Mr. West's remains should be moved to the Veterans
Cemetery so that he is honored for his heroic service and his
grave is properly maintained.
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, we affirm the
March 23, 2016 order of the Circuit Court of Mason County.
FACTUAL AND PROCEDURAL BACKGROUND
West received the Medal of Honor for his heroic service in
World War I. According to facts in the hearing record below
and undisputed by the parties, he was a 20-year-old first
sergeant in an automatic rifle section of the
363rd Infantry Regiment, United States Army's
91st "Wild West" Division. On September
26, 1918, the opening day of the Allies' Meuse-Argonne
Offensive, Mr. West ...