in the Matter of the Guardianship of Carlos Benavides Jr. an Incapacitated Person ( 2014 )


Menu:
  •                                Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-13-00197-CV
    IN THE MATTER OF THE GUARDIANSHIP OF Carlos Y. BENAVIDES, Jr.,
    an Incapacitated Person
    From the County Court at Law No. 2, Webb County, Texas
    Trial Court No. 2011PB000081L2
    Honorable Jesus Garza, Judge Presiding
    Opinion by:       Catherine Stone, Chief Justice
    Sitting:          Catherine Stone, Chief Justice
    Karen Angelini, Justice
    Luz Elena D. Chapa, Justice
    Delivered and Filed: February 19, 2014
    AFFIRMED IN PART; DISMISSED IN PART
    On April 23, 2013, the appellees, who are the adult children of Carlos Y. Benavides, Jr.,
    filed a motion to dismiss this appeal for lack of jurisdiction based on the probate court’s order
    granting their motion in limine under Section 642 of the Texas Probate Code, which has been
    recodified without change to Section 1055.001 of the Texas Estates Code. The motion in limine
    was granted based on the probate court’s finding that the appellant, Leticia R. Benavides, who is
    Carlos’s wife, has an interest adverse to Carlos. We affirm the probate court’s order that Leticia
    lacks standing because she has an interest adverse to Carlos and dismiss the remainder of the
    appeal.
    04-13-00197-CV
    STANDING AND STANDARD OF REVIEW
    A person who has an interest adverse to a proposed ward or incapacitated person is not
    entitled to contest the creation of a guardianship or the appointment of a person as the guardian of
    the person or estate of a proposed ward or incapacitated person. TEX. ESTATES CODE ANN.
    § 1055.001(b)(2), (3) (West 2014). The probate court must “determine by motion in limine the
    standing of a person who has an interest that is adverse to a proposed ward or incapacitated
    person.” 
    Id. at §
    1055.001(c). “The issue of whether a party has standing to participate in a
    guardianship proceeding is a question of law,” which we review de novo. In re Guardianship of
    Miller, 
    299 S.W.3d 179
    , 188 (Tex. App.—Dallas 2009, no pet.).
    DISCUSSION
    After the hearing on the motion in limine, the probate court entered express findings of fact
    in its order. The probate court found that: (1) Leticia and Carlos had executed a premarital
    agreement and a separate property agreement; (2) Leticia had taken actions contrary to those
    agreements; and (3) Leticia’s actions were adverse to Carlos. Specifically, the probate court found
    that Leticia now contends that the agreements are invalid and unenforceable, that she does not
    intend to treat Carlos’s separate property as his separate property, and that she does not intend to
    honor either agreement. The probate court further found that, in furtherance of her position, Leticia
    had filed two lawsuits against the temporary guardian of Carlos’s estate and others. In those
    lawsuits, Leticia asserts Carlos’s separate property is community property, an assertion contrary
    to the terms of the agreements. Based on these findings, the probate court found that Leticia has
    an interest that is adverse to Carlos’s interest and thus lacked standing to participate in the
    guardianship proceeding.
    This court has held that a person who is suing a proposed ward or incapacitated person has
    an interest adverse to the proposed ward or incapacitated person. See In re Guardianship of Valdez,
    -2-
    04-13-00197-CV
    No. 04-07-00712-CV, 
    2008 WL 2332006
    , at *2 (Tex. App.—San Antonio June 4, 2008, pet.
    denied) (mem. op.); see generally Ford, Don D., Fundamental Issues to Understand Before
    Accepting a Guardianship Litigation Engagement, 48 THE ADVOC. (TEXAS) 77, 78 (2009) (“it
    seems clear that someone who is involved in a lawsuit directly adverse to the proposed ward …
    lacks standing under Section 642”). Similarly, in this case, we hold the litigation filed by Leticia
    seeking to invalidate the premarital and separate property agreements and to have the assets of
    Carlos’s guardianship estate classified as community property as opposed to separate property
    causes Leticia to have an interest adverse to Carlos. 1 Accordingly, we uphold the probate court’s
    order.
    In her brief, Leticia asserts various issues relating to the probate court’s admission of the
    agreements into evidence at the hearing on the motion in limine. Having reviewed the record,
    however, we hold that only the following objections are preserved for our review: (1) the
    agreements were not properly authenticated; and (2) the agreements are incomplete and not
    enforceable. With regard to the objection relating to the enforceability of the agreements, this
    objection goes to the weight the probate court should give to the agreements, not to their
    admissibility. See All Metals Fabricating, Inc. v. Foster Gen. Contracting, Inc., 
    338 S.W.3d 615
    ,
    622 (Tex. App.—Dallas 2011, no pet.) (issues raised regarding timing, signature, and date of
    assignment relevant to weight but do not preclude admissibility). With regard to the objection
    relating to the authenticity of the agreements, Leticia admitted at the hearing that she signed the
    1
    In one of her pleadings, Leticia acknowledges that the Benavides Family Mineral Trust was created prior to her
    marriage to Carlos; however, she alleges that “all distributions from such trust during the marriage are community
    property.” This allegation is contrary to the terms of the separate property agreement which states, “All income arising
    during marriage from the separate property of [Carlos], as well as all subsequent income arising from the reinvestment
    of that income, is the separate property of [Carlos].” In her brief, Leticia claims Section 883 of the Texas Probate
    Code authorized her to file the lawsuit; however, Section 883 only authorizes Leticia to manage the community estate,
    not Carlos’s separate estate because Leticia was not appointed as guardian of Carlos’s estate. See TEX. ESTATES CODE
    ANN. §§ 1353.001-1353.006 (West 2014) (recodifying Section 883).
    -3-
    04-13-00197-CV
    separate property agreement. In addition, both agreements are notarized, making them self-
    authenticating. See TEX. R. EVID. 902(8). Finally, the paralegal of Carlos’s attorney, who was the
    custodian of record of the attorney’s file, testified regarding the executed copies of the agreements
    that were introduced into evidence. The paralegal testified that the executed agreements were
    located in the attorney’s file along with correspondence sent to Carlos and to the attorney who
    represented Leticia in connection with the agreements enclosing copies of the executed
    agreements. See TEX. R. EVID. 1003 (providing for admissibility of duplicates).
    CONCLUSION
    Because we affirm the probate court’s order granting the motion in limine and finding
    Leticia lacks standing to contest the guardianship proceeding and the appointment of a guardian,
    Leticia similarly has no standing to challenge the probate court’s orders arising from the
    guardianship proceeding in this appeal. See In re Estate of Denman, 
    270 S.W.3d 639
    , 642 (Tex.
    App.—San Antonio 2008, pet. denied) (appealing party does not have standing to complain of
    errors that merely affect the rights of others). Accordingly, we dismiss the remainder of this appeal
    for lack of jurisdiction.
    Catherine Stone, Chief Justice
    -4-