AFFIRMED and Opinion Filed November 15, 2018




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-16-01026-CV

                         IN RE ESTATE OF GARY WAYNE LUNA

                           On Appeal from the Probate Court No. 1
                                    Dallas County, Texas
                            Trial Court Cause No. PR-15-02365-1

                             MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Francis
       Alison Luna appeals the probate court’s Judgment Declaring Heirship in which the court

held Gary Wayne Luna was not married at the time of his death and his sole heirs are his two

daughters. In a single issue, Alison contends the court erred in determining she was not an heir to

Gary’s estate. We affirm the probate court’s judgment.

       Alison and Gary married on December 16, 2006. In 2014, Gary filed a petition for divorce

in the 303rd Judicial District Court. On April 29, 2015, both Alison and Gary appeared at a hearing

before the court and announced they had reached a settlement agreement and wished to prove-up

the divorce. The terms of the agreement were read into the record, and each party stated they

understood and agreed to the terms. Alison further agreed she was asking the court to grant the

divorce.

       At the conclusion of the hearing, the trial judge stated “based on the testimony presented

and the pleadings on file, I approve the agreement of the parties and render judgment according to
the agreement and I’ve granted the divorce.” The judge then asked who was going to prepare the

decree. After Gary’s attorney volunteered to draft the order, the judge stated that, pursuant to local

rule 8.02, the case would be set on the dismissal docket for May 29, 2015 and would be dismissed

unless an order or motion for entry was filed before that date. No order or motion for entry of

judgment was filed on or before May 29, but the case was not dismissed. Gary passed away on

June 10. Two days later, the district court signed a written divorce decree.

           Alison filed motions for new trial and for dismissal contending the district court had no

jurisdiction to render a judgment of divorce after Gary’s death. Alison argued the court’s oral

pronouncement of divorce was not final because it was made contingent upon the filing of a written

order by May 29, which was not done, and the court had no power to grant the divorce after Gary

died. The district court denied both motions on September 22, 2015, stating its oral rendition of

judgment on April 29 was final and the local rule and admonishments of dismissal were intended

“as an administrative aid to the court to insure timely disposition of cases after oral judgment is

pronounced.”

           On November 4, Alison recorded a deed of trust in Dallas County placing a lien on Gary’s

residence for attorney’s fees in the amount of $13,957.50. Ellen Bennett, the court appointed

temporary administrator of Gary’s estate, filed an application to determine heirship and an

emergency motion for authority to bring an action to establish Alison’s interest, if any, in Gary’s

residence.1 In the motion, Bennett stated “Alison Luna appears to contend that she is the surviving

spouse of the Decedent . . . and uses that belief as a basis for her apparent position that she has

some interest in the Residence.”




     1
       Bennett subsequently filed a declaratory judgment action against Alison which is the subject of a companion appeal in this Court (No. 05-
16-00878-CV).

                                                                     –2–
       On August 10, 2016, the probate court held a hearing to determine heirship. Without

objection, the court took judicial notice of Gary and Alison’s agreed final decree of divorce, the

transcript of the April 29, 2015 prove-up proceeding, and the local rules of 303rd Judicial District

Court. Based on the evidence and testimony introduced, the court determined Gary was not

married at the time of his death and his two daughters were his only heirs. Alison brings this

appeal challenging that determination.

         In a single issue, Alison contends the court erred in concluding she was not an heir to

Gary’s estate because the district court’s oral pronouncement of divorce was insufficient to be a

final judgment and the court had no jurisdiction to render a judgment of divorce after Gary’s death.

First, we note that Alison did not appeal either the divorce decree or the district court’s orders

denying her post-judgment motions raising these same arguments. Second, this issue has been

addressed by this Court in the companion appeal, Luna v. Bennett, and determined to be without

merit. See Luna v. Bennett, No. 05-16-00878-CV, slip op. at 6 (Tex. App.—Dallas November 15,

2018, no pet. h.). For the reasons set forth in our opinion in the companion appeal, we likewise

resolve Alison’s sole issue in this case against her.

       We affirm the probate court’s Judgment Declaring Heirship.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE



161026F.P05




                                                 –3–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN RE ESTATE OF                                     On Appeal from the Probate Court No. 1,
 GARY WAYNE LUNA                                     Dallas County, Texas
                                                     Trial Court Cause No. PR-15-02365-1.
 No. 05-16-01026-CV                                  Opinion delivered by Justice Francis.
                                                     Justices Bridges and Lang-Miers
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee J. ELLEN BENNETT, TEMPORARY
ADMINISTRATOR OF THE ESTATE OF GARY WAYNE LUNA, recover her costs of this
appeal from appellant ALISON LUNA.


Judgment entered November 15, 2018.




                                               –4–
