                                                                                         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.



                                   Page 2 of 4
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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