In re Guardianship of Winn
2012 Tex. App. LEXIS 5207
| Tex. App. | 2012Background
- Father challenges guardianship orders appointing Mother as Ward's permanent guardian; Ward is an adult with intermittent incapacity due to bipolar disorder; Mother sought guardianship of Ward's person with no limitation on powers; Ward's treating physician opined guardianship would benefit Ward; probate court appointed Mother July 7, 2009; Father did not answer or appear and later challenged via bill of review and motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Submission of guardianship application under §644(a)(2) | Father argues guardianship was decided by submission without a record | Mother asserts submission allows decision without oral argument when not contested | Issue held: submission interpreted as without oral argument, not without a reporter's record; no reversible error found |
| Sufficiency of pleadings to support guardianship | Father says order exceeded pleadings, seeking total incapacity not supported | Mother's application alleged intermittent incapacity and no limitation on powers; pleadings sufficient | Issue held: pleadings supported guardianship with interim incapacity finding |
| Order of hearing and burden regarding restoration of capacity | Father contends restoration of capacity heard before bill of review altered burden | Record not properly before court; no reversible error given absence of record on appeal | Issue held: procedural sequence not reversible given record limitations and presumption of regularity |
| Sufficiency of evidence for incapacity and guardianship | Father asserts no substantial evidence of total incapacity; relies on lack of record | Court had evidence from Mech letter and Ward's statements; presumes record supports order | Issue held: record supports incapacity finding under guardianship framework; presumption of regularity applies |
| Nunc pro tunc order removing 'total' from incapacity finding | Removal of 'total' is an impermissible substantive change | Removal of 'total' was clerical correction; powers and rights unchanged; 694H inapplicable | Issue held: nunc pro tunc correction clerical; not a modification of guardianship rights |
Key Cases Cited
- Hamilton v. Jones, 521 S.W.2d 350 (Tex.Civ.App.-Houston [1st Dist.] 1975) (submission issues and records issues in guardianship context)
- Ex parte Fleming, 532 S.W.2d 122 (Tex.Civ.App.-Dallas 1975) (standard for pleadings and jurisdiction in guardianship matters)
- Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979) (judgment must conform to pleadings absent trial by consent)
- McDonald v. Carroll, 783 S.W.2d 286 (Tex.App.-Dallas 1989) (substantial error standard in bill of review)
- Sandoval v. Comm’n for Lawyer Discipline, 25 S.W.3d 720 (Tex.App.-Houston [14th Dist.] 2000) (presumption of regularity; omitted record portions supported judgment)
- Jackson v. Reardon, 14 S.W.3d 816 (Tex.App.-Houston [1st Dist.] 2000) (record/notice issues in guardianship context)
- Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (nunc pro tunc corrections; clerical vs judicial error)
- SLT Dealer Grp., Ltd. v. AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822 (Tex. App.-Houston [1st Dist.] 2011) (clerical corrections and judgment integrity)