Daisy Wanda Garcia v. Thomas Lee Baumgarten ( 2015 )

ACCEPTED
03-14-00267-CV
5082106
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/29/2015 1:21:26 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00267-CV
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
4/29/2015 1:21:26 PM
Austin, Texas
JEFFREY D. KYLE
Clerk
DAISY WANDA GARCIA, APPELLANT
v.
THOMAS LEE BAUMGARTEN, APPELLEE
APPEAL FROM CAUSE NO. D-1-GN-12-002429
201ST DISTRICT COURT OF TRAVIS COUNTY, TEXAS
HON. CHARLES RAMSEY PRESIDING
APPELLANT’S REPLY RE EMERGENCY MOTION TO ABATE
John L. Foster Stephen Casey
Texas Bar No. 07289000 Texas Bar No. 24065015
FOSTER RAMSEY CASEY LAW OFFICE, P.C.
812 San Antonio Street 595 Round Rock West Drive
Suite 400 Suite 102
Austin, Texas 78701 Round Rock, Texas 78681
512-476-4473 Telephone: 512-257-1324
512-474-1606 (Fax) Fax: 512-853-4098
jfoster@fosterramsey.com info@caseylawoffice.us
Lead Counsel
Counsel for Appellant
Daisy Wanda Garcia
REPLY
1. Respondent holds Movant to a distinction between formal and informal
marriage that is never examined or questioned in any of the referenced items.
2. The decision between formal and informal marriage is a factual matter that
could result in her designation as the community property or separate property
heir in the Harris County will contest. See Hundl v. Nigh, 1996 Tex. App.
LEXIS 600, 9 (Tex. App.—Houston 14th Dist. Feb. 15, 1996) (stating that
“the cohabitation element is determined on a case by case basis” and “the
family code and the common law fail to provide a bright-line test to determine
the length of time a couple must cohabitate” to satisfy an informal marriage.).
Also, that the parties did not reside together is not, as a matter of law, sufficient
to deny this motion. Id. at 9 (that the informal wife, did not reside with the
informal husband, was insufficient to deny the informal marriage existed.);
Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987).
3. In Bolash v. Heid, the parties didn’t even live in the same country, rarely saw
each other, and only cohabitated for a short time. Id. Still, the court found that
the evidence was sufficient to establish an informal marriage in a dispute over
the rights to a house that was allegedly commonly purchased. Id. (the house,
though, was factually determined to have been purchased two months before
the informal marriage existed). The Bolash court acknowledged a factual
determination of the issue. Here, the Harris County court is make that
determination at the trial level, and Appellee is entitled to marshal its evidence
to deny such an informal marriage existed; however, this Court should not
decide this case until such time as the Harris County court has made a factual
determination that would have an effect on the disposition of this case.
4. Both parties expressly made factual averments as to marriage status at multiple
points within this State’s real property records and on contracts. Those
admissions are factual issues to be dealt with in the Harris County will contest.
See Hundl v. Nigh, No. 14-94-01145-CV, 1996 Tex. App. LEXIS 600, at *9
(couple held separate bank accounts and separately filed taxes; yet, factual
inquiry determined that informal marriage existed); but see Small v. McMaster,
352 S.W.3d 280, 286 (Tex. App.—Houston 14th Dist. 2011) (filing taxes
separately, when considered with other factual representations and findings,
weighed against informal marriage). Again, it is a factual inquiry best made in
the Harris County probate court while this case is abated.
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5. Should the Harris County will contest determine the informal marriage
existed, the nature of the attempted settlement is fundamentally changed,
which will have an a priori direct affect on the disposition of this appeal.
6. As the settlement agreement and release are all subsumed within one
agreement, a decision in the Harris County will contest will unquestionably
affect the disposition of this appeal.
7. The presumption addressed by Texas Family Code § 2.401(b) is a rebuttable
presumption. The presumption is not conclusive, and the contest addressing
that presumption is the will contest in Harris County. Should Garcia succeed
in rebutting that presumption (which is an important question given the value
of the house and the factual issues present—that both parties did hold
themselves out as husband and wife), then such decision from the Harris
County will contest will affect the disposition of this appeal. Appellee wants a
jurisdictional standard without any hearing. It is a factual issue that first needs
to be resolved by the Harris County probate court.
8. Garcia never stated the parties did not have an informal marriage. One of her
contentions in the will contest, and to this day, was that he never went through
with a marriage ceremony. Even contradictions in sworn deposition testimony
are not conclusive; rather, a factual trial inquiry is needed, which will happen
through the Harris County will contest. See In re Almanza, 2007 Tex. App.
LEXIS 3386, 6 (Tex. App. Waco May 2, 2007) (factual contradictions within
case and deposition testimony precluded summary judgment on whether an
informal marriage existed because at one point the other party had agreed
to marry). Here, Garcia has held out that he bought her an engagement ring
to show his intent to marry her after his proposal and she fully believed they
would marry—and this is from Appellee’s own response to this motion. See
Resp. Appellee at 13. (engagement ring and her belief they would formally
marry).
9. Garcia (and her counsel on her behalf), based on the highly technical, factual
distinction and nature of the inquiry into the distinction between formal and
informal marriage, has a colorable legal argument and should not be
sanctioned. See In re Almanza, 2007 Tex. App. LEXIS 3386, 6 (Tex. App. Waco
May 2, 2007) (factual inquiry into informal marriage).
Prayer
Page 3 of 4
Appellant prays this Court grant this Motion to Abate.
/s/ Stephen Casey
John L. Foster
Texas Bar No. 07289000
FOSTER RAMSEY
812 San Antonio Street
Suite 400
Austin, Texas 78701
512-476-4473
512-474-1606 (Fax)
jfoster@fosterramsey.com
Stephen Casey
Texas Bar No. 24065015
CASEY LAW OFFICE, P.C.
595 Round Rock West Drive
Suite 102
Round Rock, Texas 78681
Telephone: 512-257-1324
Fax: 512-853-4098
stephen@caseylawoffice.us
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion was
served upon counsel for Appellee on Wednesday, April 29, 2015, via electronic
transmission:
Nicholas Laurent, Counsel for Appellee
nlaurent@mcginnislaw.com
/s/ Stephen Casey
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