In re Estate of Loveless, 64 S.W.3d 564 (Tex. App.—Texarkana 2001, no pet.).
Although neither party raised the issue of the finality of the lower
court’s judgment, the appellate court provided a detailed analysis of
whether it had the ability to consider the appeal. The court reviewed
the case under the test set forth in Crowson v. Wakeham, 897 S.W.2d 779,
780 (Tex. 1995), which provides that an order in a probate case is final
for appellate purposes when (1) a statute declares that a specified
phase of the probate proceedings are final and appealable, (2) the order
disposes of all issues in the phase of the proceeding for which it was
brought, or (3) a particular order is made final by a severance order
meeting the usual severance criteria.
Although Probate Code § 55(a) provides that a determination of heirship
is a final and appealable judgment, the heirship determination in this
case was not final because it did not contain all of the elements
required by Probate Code § 54. Although the trial court order appears
interlocutory because the pleadings raise issues not disposed of in the
order, the court held that the action meets the requirements for
severance and accordingly severed the action in the interest of judicial
efficiency. Accordingly, the appellate court had jurisdiction to hear
the appeal.
Moral: A party appealing a judgment should clearly indicate to the
appellate court the reason why the party believes the court has
jurisdiction to hear the appeal. As a matter of course, this issue
should be addressed in the appellate brief.
In re Estate of Loveless, 64 S.W.3d 564 (Tex. App.—Texarkana 2001, no pet.).
After Intestate’s death, two women claimed to be Intestate’s spouse.
Rosa claimed to be married to Intestate while Wanda asserted that
Intestate had divorced Rosa and married her. Wanda moved for summary
judgment that she was Intestate’s spouse and presented evidence such a
divorce decree, marriage certificate, pleadings in which Intestate
referred to Rosa as his ex-spouse, and income tax returns. To counter
this evidence, Rosa produced a Honduran marriage certificate showing
that Intestate remarried Rosa four months after they were originally
divorced. The court granted Wanda’s motion and Rosa appealed.
The appellate court reversed because Rosa presented evidence sufficient
to raise a genuine issue of material fact as to whether she had
remarried Intestate which would have made Wanda’s marriage invalid. Rosa
had a marriage certificate dated after their divorce and there was no
evidence showing that Rosa and Intestate were subsequently re-divorced.
Wanda did not produce evidence to show as a matter of law that Rosa’s
remarriage was invalid or that they were divorced prior to Wanda and
Intestate’s marriage. In addition, the court determined that Rosa was
not equitably or judicial estopped from claiming to have remarried
Intestate even though Rosa had sued to enforce the divorce decree after
allegedly remarrying Intestate and did not object when her attorney
referred to Intestate has her ex-husband.
Moral: Summary judgment on the status of a marriage will be difficult to
obtain if there is some evidence that the decedent was married to
another individual.