Opinion
No. C14-91-273-CV.
May 9, 1991.
Patricia Hair, Houston, for relator.
Sharon Brand Gardner, Houston, Van E. Wittner, Houston, for respondent.
Before ROBERTSON, SEARS and DRAUGHN, JJ.
OPINION
After we granted leave to file the petition for writ of mandamus, respondent filed his response. The response, along with numerous exhibits, reveals that Judge Scanlan has scheduled trial for June 10, 1991, to determine the underlying factual issues on various matters, including relator's contest to the appointment of the guardian of her husband and the character of a substantial estate of the parties.
Since these issues of fact must be determined, it is inappropriate for us to exercise mandamus jurisdiction. Leave to file was improvidently granted.
The order of this court of March 21, 1991, granting motion for leave to file petition for writ of mandamus is withdrawn, as the motion for leave was improvidently granted. The motion for leave to file petition for writ of mandamus is overruled.
Because of opinions and results such as this, the legal profession has fallen in the eyes of the general profession has fallen in the eyes of the general public from one of high respect and integrity to one of distrust and disgust. Without any legal authority or precedent, the trial court has deprived relator of her right to control her own $6,000,000 estate. The majority of this panel, without citing any authority or legal precedent, has condoned a clear abuse of discretion and has refused to issue a writ of mandamus. I respectfully dissent.
John Williams was diagnosed in January 1989 with "a very advanced dementia of the Alzheimer's type." Relator and John W. Williams have been married for 35 years, they have no children, and Mr. Williams has no brothers or sisters. During their 35 year marriage, the couple has accumulated an estate of approximately $6,000,000.
In October, 1989, Thomas Mionor had a private investigator check into the whereabouts of relator and the condition of Mr. Williams. Mr. Minor was the William's former accountant who had been terminated by relator for theft and attempting to obtain control over the person of John Williams in order to convert the William's assets to Minor's own use and benefit. In June 1990, Mr. Minor contacted Jacquelyn Friedrich, an attorney, who was the daughter of his private investigator, and requested that she file an application for appointment of a temporary guardian of John Williams. On June 25, 1990, Ms. Friedrich filed the application. Mr. Minor did not attempt to contact relator, although relator testified that she had returned to her home on June 20, 1990, some five days before application was filed.
On the unsworn petition and allegations of the fired accountant, the trial court turned over the estate of the parties to the attorney picked by Mr. Minor. On her return, relator immediately started fighting this action and demanded of the parties, the guardian, the attorney ad litem and the trial court, that her estate be restored to her immediately prusuant to Section 157 of the Texas Probate Code. Incredibly, the Texas courts have denied this relator her rights under the law, have allowed strangers to take over the estate, and have appointed lawyers to drain its assets.
Section 157 of the Texas Probate Code which specifically provides:
Whenever a husband or wife is judicially declared to be incompetent, the other spouse, in the capacity of surviving partner of the marital partnership, thereupon acquires full power to manage, control, and dispose of the entire community estate, including the part which the incompetent spouse would legally have power to manage in the absence of such incompetency, and no administration, community or otherwise, shall be necessary. Guardianship of the estate of the incompetent spouse shall not be necessary when the other spouse is competent unless the incompetent spouse owns separate property, and then as to such separate property only. The qualification of a guardian of the estate of an incompetent spouse does not deprive the competent spouse of the right to manage, control, and dispose of the entire community estate as provided in this Code.
(emphasis supplied).
Pursuant to the code, the trial court can only give the guardian power to manage and control the separate property of the ward. The code could not be more specific, nor could the language be more clear. Therefore, relator is entitled to manage, control, and dispose of entire community estate without regard to whether she may squander the estate. There is no provision in the probate code upon which the trial court or this court could rely as authority to deny relator the right to control her own community estate.
The record shows that the relator has further made demands upon the permanent guardian, as well as the trial court, to deliver all of the community property to her pursuant to Section 158 of the Probate Code. That provision of Section 158 is equally clear and unambiguous when it states as follows:
A guardian of the estate of an incompetent married person who, as guardian, is administering community property as part of the estate of such ward shall forthwith deliver such community property to the sane spouse upon demand.
(emphasis added)
The refusal to deliver the community property estate forthwith was clearly an abuse of discretion and was not based upon any legal authority.
As a further example of the evil that has been done, the attorney ad litem approved payment of attorney's fees to the guardian in excess of $64,000 through December 12,, 1990, and denied relator's request for $50,000 in order to pay her own attorney's fees. The abuse could not be clearer.
Although there are a lot of claims and allegations from both sides as to acts committed by the other, and although the trial court and the majority of this court are acting with the purest intent to protect the interest of the ward, they cannot put on blindfolds and ignore the law. The majority opinion takes the position that this deprivation of the rights of the relator is okay because Judge Scanlan has scheduled a trial for June 10, 1991, to determine the underlying factual issues on various matters. The majority concludes that the court is going to hold a hearing on the character of the estate of the parties. However, there is nothing in the record to support such a conclusion. The order entered by the trial court which caused relator to file this writ of mandamus is that order denying her motion that the guardian deliver to her forthwith the community property estate. A hand written notation on the bottom of that order reads: "The motion is denied until underlying fact questions are resolved." Not only is it pure conjecture to believe the trial court is going to hold a hearing to determine the character of the estate, it is also unrealistic to make that assumption based upon the face of the record. In the nine months that relator has been denied her estate, those in control have yet to identify one single piece of property as being the separate property of the ward. Although relator has filed a sworn affidavit in which she identified the community property and the separate property of herself and her spouse, she has still been denied the right to control, manage and dispose of the community property estate in violation of § 158 of the Texas Probate Code. This is simply another case where the assets of an estate will be severely eroded by unnecessary legal fees paid to attorneys appointed by the trial court. I am appalled that it has happened, and I am disappointed that the court of appeals has not corrected this abomination of the law.
There can be no clearer abuse of discretion than that of a trial court that will take away the estate that the parties spent 35 years accumulating. Further, the court does so without being able to cite any authority or legal justification for its action.
It does not matter that the trial court is having a hearing on June 10, 1991, and it does not matter that the hearing may be for the purpose of determining the character of the estate of the parties. The only matter before the trial court, or this court, is who has the right to manage and control the estate pending a determination of its character. Whether we deprive relator of her lawful rights for one day or one month, it is contrary to the law and is an abuse of discretion. It is a sad comment indeed on the state of our legal system that this abuse had continued unabated, and that it has been condoned by this court.
The only case cited by either party dealing with an interpretation of Section 157 of the Probate Code is Houston Bank Trust Co. v. Lee, 345 S.W.2d 320 (Tex.Civ.App. — Houston 1961, writ dism'd). That opinion goes into great detail discussing the legislative history and intent, and it arrives at the inescapable conclusion that upon demand by the same spouse, it is the duty of the guardian to hand over the property demanded forthwith. In the Lee case, as in this case, the guardian has failed to admit that the property in question is community property. However, until such a determination of the character of the property is made, the Probate Code provides that the sane spouse, and no other person, is entitled to manage and control the entire community estate.
Relator and the ward have been married for 35 years and the presumption remains that all the estate is community. TEX.FAM.CODE ANN. § 5.02 (Vernon Supp. 1991); Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947). The burden is on the party asserting otherwise to overcome the presumption by clear and satisfactory evidence. Estate of Bridges v. Mosebrook, 662 S.W.2d 116, 122 (Tex.App. — Fort Worth 1983, writ ref'd n.r.e.); Gonzalez v. Guajardo de Gonzalez, 541 S.W.2d 865, 868 (Tex.Civ.App. — Waco 1976, no writ). The fact that the guardian and/or the attorney ad litem have not been able to identify any specific piece of property as being the separate property of the ward cannot deprive relator of her rights under the law. There is simply no provision in the probate code providing for a guardian to keep control against the wishes of the sane spouse while the guardian drains the assets in an attempt to identify them.
I would grant the writ of mandamus and deliver the entire estate to the relator forthwith pursuant to Sections 157 and 158 of the Texas Probate Code.