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This Week in Probate and Guardianship Appeals

April 9, 2010

Doherty v. JPMorgan Chase Bank, First Court of Appeals Houston

This week’s entry comes to us from the 1st District Court of Appeals in Houston. Lois Doherty appealed the order of Mike Wood, Judge of Harris County Probate Court Number Two, who granted JPMorgan’s motion for summary judgment.

Background

Mrs. Doherty is the beneficiary of the Lois Doherty Trust, created by her late husband Wilfred T. Doherty in his Will. JPMorgan is the trustee of this Trust. Paragraph 3.3 of the Trust states that the Trustee must distribute such amounts of Trust principal as Mrs. Doherty may request to provide for her comfort, health, support or maintenance. In 2005, Mrs. Doherty suffered a stroke that left her physically impaired and she moved into her daughter’s home. This house lacked a handicap-accessible bathroom and therefore Mrs. Doherty requested funds to modify the bathroom in her daughter’s home. Mrs. Doherty requested that all of the funds in the trust be released and placed into another account that she owned.

The bank decided that they did not agree with this request and instead asked her to send them quotes for the repairs to the bathroom and they would review such quotes and make the distribution. Obviously this did not sit well with Mrs. Doherty. She therefore hired an attorney and requested that JPMorgan resign as trustee. JPMorgan refused to resign and instead requested a full judicial release. They then denied the request for funds to install a handicap accessible bathroom and continued to hold the funds.

Mrs. Doherty filed a petition for declaratory judgment seeking a declaration that in light of JPMorgan’s refusal to act, the Will allowed her to appoint a successor trustee. Both Parties then filed motions for summary judgment. Mrs. Doherty’s motion sought summary judgment on the issue that JPMorgan had refused to act under the mandatory terms of the trust and such an act entitled Mrs. Doherty to appoint a successor. JPMorgan’s motion sought summary judgment on the issue that it had not failed to act under the terms of the trust and that all of Doherty’s claims were invalid. Even though JPMorgan expressly denied Mrs. Doherty’s request for funds under a mandatory provision of the Trust, Judge Wood found in favor of the bank and granted its request for summary judgment.

The Court of Appeals reviewed the terms of the trust, acknowledged that the provisions under Paragraph 3.3 required mandatory distribution when requested for maintenance, and therefore ruled that JPMorgan had in fact refused to act under the terms of the trust. This meant that Mrs. Doherty was well within her rights to appoint a successor trustee and JPMorgan was not entitled to summary judgment. The Court reversed Judge Wood’s ruling and rendered judgment in favor of Mrs. Doherty on her declaratory judgment claim.

What does all of this mean for you? First of all, if you have a trust, make sure it says exactly what you want it to say. Secondly, if you are a beneficiary of a trust and have concerns regarding the Trustee, call us today and schedule an appointment to discuss your matter. Even where a Judge has ruled against you there may still be options available, but the timelines are short so do not put off calling an attorney that is qualified in probate matters.

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This Week in Probate and Guardianship Appeals

January 26, 2010

Johnny Carroll, Individually and as Trustee of the Johnny Carroll Trust, v. Letha Frances Carroll and Donald Carroll, Supreme Court of Texas
This week’s entry comes to us from on high, the Texas Supreme Court. Johnny Carroll appealed the Appellate court’s ruling on a default judgment which was awarded in favor of Letha and Donald Carroll. Johnny raised the issue of jurisdiction for the first time in the Supreme Court cliaming that the County Court, to which this case had been transferred, lacked the requisit jurisdiction to hear the matter. The Supreme Court agreed.

Jurisdiction in regard to Trust Proceedings

The Texas Property Code provides that a district court has original and exclusive jurisdiction over all proceedings concerining trusts, including proceedings to appoint or remove a trustee, determine the liablity of a trustee, or to require an accounting by a trustee.

Letha and Donald’s original suit sought exactly such accounting and removal. Despite this, the 66th District Court of Hill County transferred this suit to to County Court at Law.

The Supreme Court noted that the district courts may only assign cases to the county courts at law that are within the county court at law’s jurisdiction. Because nothing in the Texas Government Code confers jurisdiction on county courts at law over trust proceedings, the transfer to the Hill County Court at Law was improper. In light of the fact that the Hill County Court at Law had no jurisdiction over the proceeding, its judgment was void.

What does all of this mean for you? Perhaps a lot. Void judgments are no judgments at all. They are good nowhere and can be attacked at any time. Therefore, even if you have been out of court for years and you now read this and realize your trust case was handled in a court that lacked jurisdiction, you may still be able to attack such a judgment on the basis of voidness. To make sure, call us today and schedule an appointment to discuss your options.

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I Do?

October 5, 2009

Recently on a local news broadcast, I overheard the anchor comment on Houston’s own Chuck Knoblauch and his current legal troubles. What bothered me was not Chuck’s run-ins with the law, but the apparent lack of understanding demonstrated by the anchor. While commenting on Chuck’s on-going divorce, the Anchor noted that while Mr. And Mrs. Knoblauch were only common-law married, they were “still” going through divorce proceedings. This provided me a perfect chance to address a commonly misunderstood issue, Common-law marriage.

Right off the bat I think it’s important for us to define the term “common-law marriage.” Common-law Marriage is a marriage arrangement between a man and a woman without the formalities of the issuance of a license nor an official or ministerial ceremony. The courts of Texas have recognized common-law marriage as valid marriages for decades. Couples entering into common-law marriages are legally entitled to all the same property rights that attach to formal marriages.

Now that we know what Common-law Marriage is, we can focus on what it isn’t. I cannot tell you how many times I have had friends or acquaintances say to me that so-and-so has lived with his girlfriend for a couple of years now so “technically they are common-law married I guess.” I would say if there is one common misconception regarding common-law marriage, it’s that there is a time element involved. However, there is actually no time element involved at all. That’s right, you can live with your significant other for as little as one day and be considered common-law married.

 By now most of the single guys out there reading this are probably freaking out, however it is equally important to note that while living together is a requirement for establishment of common-law marriage, it is by no means exclusive. Equally important are the elements of an agreement to become husband and wife; and holding out to the public as husband and wife. Simply stated, the three elements of a common-law marriage are: (1) you have an agreement to be married; (2) after the agreement, you live together in Texas as husband and wife; and (3) you represent to others in Texas that you are married. The agreement to be married and the public and open holding out that you are husband and wife are as essential to a valid common-law marriage as the living together. Without these elements, there is no common-law marriage. Therefore, despite most single guys fears, you will never find yourself unknowingly common-law married since secrecy is inconsistent with the requirement that a couple hold themselves out to be living together as husband and wife.

So, as you can see, even living together for a single day will sustain a finding of common-law marriage as long as it was done under an agreement to be married and you made that fact known to the general public. All three elements must exist at the same time for a common-law marriage, and it does not exist until the concurrence of all three elements. Thus, merely living together is not enough to establish a common-law marriage. Similarly, just agreeing to be husband and wife, without living together, does not constitute a valid marriage.

Now then, the question becomes, and the part that apparently confused our local newscaster, does one have to go through a formal divorce to get out of an informal marriage? The answer is a resounding yes. There is no such thing as common-law divorce. Just as you share all the rights of a formal marriage, so must you share all the burdens regarding dissolving such a marriage.

Common-law marriage arises out of a state of facts, but once common-law status exists, it, like any other marriage, may be terminated only by death or court decree, and the spouses’ subsequent denials of the marriage, if disbelieved do not undo the marriage. Thus, common-law marriage can be terminated only by death, formal divorce, or a formal annulment.

So, as you can see, while common-law marriage is fairly simple to enter into, it is not so simple that you would find yourself married without your knowledge. Likewise, it is not so simple that it doesn’t require a formal divorce proceeding, such as the one in which Chuck Knoblauch currently find himself. Unlike how the newscaster couched it, such a proceeding is not just an overly cautious move by the Knoblauchs, it is a legal requirement for the dissolution of such a marriage.

Hopefully this will serve to clear up some of the confusion regarding common-law marriage. This might also be a good time to point out that bigamy is a crime in Texas, so if upon reading this you realize that you were at one time common-law married to someone that is not your current spouse, you might want to place a call to a friendly divorce attorney. Or just give us a call, we’ll point you in the right direction.

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