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In re Graham6/5/1998
On Petition for Writ of Mandamus
Argued on January 7, 1998
Justice Hankinson delivered the opinion for a unanimous Court.
In this original proceeding, we decide whether a statutory probate court has the authority to transfer to itself from district court a divorce action when one spouse is a ward of the probate court. Section 608 of the Texas Probate Code authorizes a statutory probate court to transfer to itself a matter appertaining or incident to a guardianship estate. The court of appeals conditionally issued a writ of mandamus compelling the probate court to vacate its order transferring Gitta and Richard Milton's divorce, filed in a Travis County district court, to Travis County Probate Court Number One, where a guardianship of Mr. Milton's estate and person is pending. 947 S.W.2d 737. Because we conclude that the Miltons' divorce proceeding is a matter appertaining and incident to Mr. Milton's guardianship estate, we conditionally grant Relator's petition for writ of mandamus and direct the court of appeals to vacate its order.
Gitta and Richard Milton married in July 1991 and had one child. In April 1995, Mr. Milton attempted suicide; he is now incapacitated and resides in an Austin nursing home.
Following Mr. Milton's attempted suicide, the probate court appointed Mrs. Milton guardian of her husband's person and estate. But after discovering a deed in which Mrs. Milton had transferred title to the community homestead to herself, the probate court appointed Nancy Scherer as Mr. Milton's attorney ad litem. Scherer then filed a motion to show cause why Mrs. Milton should not be removed as guardian of her husband's estate. During a hearing on the motion, the probate court instructed Mrs. Milton on her duties as guardian and directed her to take corrective actions. After the hearing, however, Mrs. Milton filed for divorce in a Travis County district court; she resigned as guardian the next day. The probate court then appointed Scherer guardian of Mr. Milton's estate,itself under Probate Code section 608.
Mrs. Milton responded by filing a petition for writ of mandamus in the court of appeals, alleging that the transfer was improper. The court of appeals conditionally granted the writ, ordering the probate court to withdraw its transfer order, and the probate court complied. Scherer moved for rehearing at the court of appeals. After being informed of the rehearing motion, the probate court reinstated its transfer order and resumed the show cause proceeding. The court of appeals issued a substitute opinion, overruling Scherer's motion for rehearing and again directing the probate court to vacate its transfer order. 947 S.W.2d at 742. The same day, the probate court informed the parties by letter of its Conclusion that certain property characterized as community property in probate pleadings by Mrs. Milton was Mr. Milton's separate property and that his separate estate owned certain reimbursement claims against the community property estate. In addition, the probate court awarded Scherer attorney's fees.
Mrs. Milton then filed an application for writ of prohibition and injunction in the court of appeals, requesting the court to "direct the probate court to vacate its orders [awarding Scherer attorney's fees and characterizing property in the marital estate] . . . and enjoin from further attempts to interfere with . . . the jurisdiction of . . . the istrict court." The application is still pending in the court of appeals.
Following the mandamus proceeding and the filing of the application for writ of prohibition and injunction in the court of appeals, Scherer resigned as successor guardian of Mr. Milton's
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