Legal Terminology
Ad Litem
Means for the suit, a person appointed such a role is responsible for a ward’s affairs in a particular aspect of litigation.
Texas Probate Code, Section 608
[Now Texas Estates Code] Allows a probate court to transfer a matter from a district, county, or statutory court to itself when the matter is appertaining or incident to a pending guardianship estate.
Probate Case
In re Graham, 971 S.W.2d 56 (Tex. 1998)
Facts & Procedural History: Guardianship
Gitta and Richard Milton married in July 1991 and had one child. In April 1995, Mr. Milton attempted suicide. After his incapacitation, he began residing in an Austin nursing home. The Probate Court originally appointed Mrs. Milton as the guardian for both her husband’s person and his estate, but after discovering that Mrs. Milton had transferred some property ownership from the estate to herself, the Court appointed Nancy Scherer as Mr. Milton’s attorney ad litem. Scherer then filed a motion to provide evidence for why Mrs. Milton should not be removed as guardian of her husband’s estate, and the Probate Court instructed Mrs. Milton to take corrective measures. After this hearing, Mrs. Milton filed for divorce in a Travis County District Court and resigned as Mr. Milton’s guardian. The Probate Court then appointed Scherer as guardian of Mr. Milton’s estate, and on Scherer’s motion, the Probate Court transferred the divorce proceeding to itself under Probate Code section 608.
Mrs. Milton appealed to the Court of Appeals and filed a petition for writ of mandamus, arguing that the transfer was improper. After some back and forth between the Court of Appeals and the Probate Court, the Court of Appeals ordered that the District Court vacate its transfer order. The Probate Court also informed the parties that: (1) some specific property (formerly categorized as community property by Mrs. Milton) was actually Mr. Milton’s separate property; and (2) this separate property possessed reimbursement claims against the community property estate. The probate court also awarded Scherer attorney’s fees. Mrs. Milton then filed an application for writ of prohibition and injunction in the court of appeals, requesting for the Court to instruct the Probate Court to vacate the previous orders. Scherer resigned as the successor guardian of Mr. Milton’s estate, and the Probate Court appointed Samuel Graham. The parties then settled the divorce issues regarding property division and child support, signing a written agreement. The District Court finalized the divorce, but Graham filed a motion for a new trial in the District Court (arguing that the order did not meet the agreement/amendments from the Probate Court).
Graham later filed an original proceeding to: (1) seek relief from the Court of Appeals’ mandamus order; and (2) argue that the Probate Court’s transfer of the Miltons’ divorce was proper. The Supreme Court declared that the Probate Court had acted within its authority when it transferred the divorce proceedings to itself. The Supreme Court conditionally granted the writ of mandamus (determining that the Court of Appeals had exceeded its mandamus power when it altered the Probate Court’s judgment when an abuse of discretion was not present). The Court held that: (1) the outcome of divorce proceeding did involve the husband’s estate and was within the jurisdiction of the probate court; and (2) the involvement of child support issues did not prevent the probate court from possessing the authority to transfer the divorce proceedings from district court to probate court.
Main Considerations
When is a cause of action at trial appertaining or incident to an estate?
A cause of action is appertaining or incident to an estate when either: (1) section 607 of the Probate Code specifically defines it as such; or (2) the controlling issue in the suit is the settlement, partition, or distribution of an estate. Section 607 defines the term appertaining to or incident to an estate to include all actions for trial of the right of property incident to a guardianship estate, and generally all matters relating to the settlement, partition, and distribution of a guardianship estate.
When is a divorce proceeding or order itself appertaining to or incident to a guardianship estate?
When the outcome of the divorce proceeding (such as the allocation of child support) directly impacts the assimilation, distribution, and settlement of his estate.
What authority is granted to a probate court regarding child support (legal guardian and family custody law)?
The Probate Code affirmatively grants probate courts the authority to order child support payments after balancing the child’s interests with the ward’s interests. The Probate Code also charges the probate court with monitoring payments from the child’s guardianship estate.
The Takeaway
In re Graham shows that a probate court does have the authority to transfer divorce proceedings to itself when the divorce proceedings affect the estate in question. This ability is not hindered by the presence of child support concerns.
Do you need an Experienced Probate Attorney to help with a Guardian matter?
If you are wondering what a probate court can do about child support, then you may be in need of an experienced probate attorney. A probate attorney can help you with a guardian matter, and they may also be able to help you with child support. Call us today for a FREE attorney consultation. (469) 895-4333.
Related Information
What is guardianship?
A guardianship is a legal relationship between a person who is appointed by a court to care for another person, called a ward. The legal guardian has the legal authority to make decisions about the ward’s life, including decisions about education, medical care, and other important matters.
What is legal guardianship?
There are many different types of guardianship, but in general, a legal guardian is someone who has been appointed by a court to care for another person, usually a minor. The duties of a guardian can vary depending on the type of guardianship and the needs of the person being cared for, but in general, guardians are responsible for making decisions about the person’s welfare, including decisions about their education, medical care, and living arrangements. Guardianship can be temporary or permanent, and it can be revoked by the court at any time.
What does guardianship mean?
Guardianship is a legal relationship between a person and a minor child. The legal guardian has the authority and responsibility to make decisions about the child’s care and welfare, including decisions about education, medical care, and religious upbringing.
Who is considered a legal guardian?
There are many different types of guardianship, but in general, a legal guardian is someone who has been appointed by a court to make decisions on behalf of another person. This includes decisions about finances, healthcare, and education. A legal guardian can be a family member, friend, or even a professional.
The probate court is responsible for appointing a legal guardian for a minor child if the child’s parents are deceased or if the child’s best interests would be served by having someone else make decisions on his or her behalf. The court will consider the wishes of the child, the Child’s relationship with potential guardians, and whether or not the potential guardian is able and willing to take on this important responsibility.
If you have been appointed as a legal guardian for a minor child, it is important to understand your rights and responsibilities. You should also be aware that the Child’s other biological parent may still have certain rights and responsibilities, even if he or she is not actively involved in the Child’s life. If you have any questions about your rights and responsibilities as a legal guardian, you should consult with an experienced attorney.
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