IN THE
TENTH COURT OF APPEALS
No. 10-19-00016-CV
TINA L. HAIGHT,
Appellant
v.
MARK FANKHAUSER, ADMINISTRATOR
WITH WILL ANNEXED OF ESTATE OF
GRADY MARTIN HAIGHT, DECEASED,
Appellees
From the County Court at Law
Ellis County, Texas
Trial Court No. 14-E-2094-18CV3
MEMORANDUM OPINION
Tina Haight filed suit against Mark Fankhauser, Administrator with Will Annexed
of the Estate of Grady Martin Haight, alleging multiple causes of action, and the trial
court granted partial summary judgment in favor of Fankhauser. In three issues on
appeal, Tina argues that 1) the trial court erred in denying her motion to recuse, 2) the
trial court erred in overruling her plea in abatement, and 3) the trial court erred in
granting summary judgment in favor of Fankhauser. We affirm.
BACKGROUND FACTS
Tina Haight and Grady Martin Haight (Marty) married in December 1998, and
Tina filed for divorce in May 2009, in trial court Cause No. 78568D. On December 5, 2011,
Tina and Marty entered into an agreement for temporary orders. Agreed Temporary
Orders were signed and entered in the divorce proceedings on March 27, 2012. The
Agreed Temporary Orders required Marty to pay $28,000 a month as combined spousal
support and child support.1 Marty died on March 27, 2014, while the divorce proceeding
was still pending.
Marty’s will was admitted to probate, and Tina was appointed as Independent
Executrix of the estate. Tina resigned on November 17, 2015, and Mark Fankhauser was
appointed to serve as administrator.
On July 12, 2018, Tina filed, in the divorce proceeding, a Motion for Enforcement
of Contract pursuant to TEX. R. CIV. P. 11 seeking to enforce the parties’ agreement of
December 5, 2011 which was later incorporated in the Agreed Temporary Orders dated
March 27, 2012. In that motion, Tina requested the trial court to enforce the December 5,
2011 agreement concerning child and spousal support. On July 19, 2018, Fankhauser, as
Administrator for the Estate of Grady Martin Haight, filed a suggestion of death for
1 The Haights were the parents of three children who are now all over the age of eighteen.
Haight v. Fankhauser Page 2
Marty. Fankhauser then filed a motion to dismiss trial court Cause No. 78568D, the suit
for the dissolution of marriage and suit affecting the parent-child relationship, and the
trial court granted the motion on July 30, 2018. Tina appealed from the trial court’s order
dismissing the suit for the dissolution of marriage and suit affecting the parent-child
relationship, and that cause is currently pending before this Court in Docket No. 10-18-
00324-CV.
On March 29, 2018, Tina filed trial court Cause No. 16-C-3206, the underlying
cause of this appeal, against Mark Fankhauser as administrator of the estate of Marty
Haight alleging various causes of action including her claim that the temporary spousal
and child support obligations created by the agreed temporary orders remained binding
on Marty’s estate. Tina filed an amended petition to include breach of contract claims for
the unpaid support payments pursuant to the agreed temporary orders in trial court
Cause No. 78568D. On June 11, 2018, Fankhauser filed a partial motion for summary
judgment as to claims for breach of contract for the support child and spousal support.
After the dismissal of the divorce proceedings, Fankhauser amended the partial motion
for summary judgment, and the trial court granted the motion on December 14, 2018. In
the appeal, Tina appeals from the trial court’s order granting Fankhauser’s partial motion
for summary judgment.
Haight v. Fankhauser Page 3
MOTION TO RECUSE
In the first issue, Tina argues that the trial court erred in denying her motion to
recuse. Judge Jim Chapman is the presiding judge of Ellis County Court at Law 1. Judge
Chapman disclosed that he had ties to Citizens National Bank at a hearing in the probate
proceeding. After that disclosure, Tina added Citizen National Bank as a defendant to
this cause of action and filed a motion to recuse Judge Chapman. The motion was heard
by the Honorable Rayburn Nall, and he denied the motion.
Rule 18b (b) of the Texas Rules of Civil Procedure provides that a judge must
recuse in any proceeding in which:
(1) the judge's impartiality might reasonably be questioned;
(2) the judge has a personal bias or prejudice concerning the subject
matter or a party;
(3) the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
…
(7) the judge or the judge's spouse, or a person within the third
degree of relationship to either of them, or the spouse of such a
person:
(A) is a party to the proceeding or an officer, director, or trustee of a
party;
(B) is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding; or
(C) is to the judge's knowledge likely to be a material witness in the
proceeding.
Haight v. Fankhauser Page 4
TEX. R. CIV. P 18b (b). We review an order denying a motion to recuse for an abuse of
discretion. TEX. R. CIV. P 18a (j)(1). The test for recusal is "whether a reasonable member
of the public at large, knowing all the facts in the public domain concerning the judge's
conduct, would have a reasonable doubt that the judge is actually impartial." Hansen v.
JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 776 (Tex. App. —Dallas 2011, no pet.).
In the probate proceeding, there were hearings held concerning the Haight Ranch
Property. The Haight Ranch Property was purchased with a loan by Citizens National
Bank. Judge Chapman disclosed his ties to Citizens National Bank on July 11, 2018. He
informed the parties that he formerly owned stock in the bank, that he has a loan from
the bank, and that his father serves on the board of directors on the bank. Tina joined
Citizens National Bank as a party on August 23, 2018, and Judge Chapman again
disclosed his ties to the bank. Judge Chapman proposed severing everything related to
the bank into a separate cause of action to be heard by another judge, and the parties
discussed preparing an order to that effect. Counsel for Fankhauser prepared a proposed
order severing and consolidating the claims related to the bank; however, on September
6, 2018, Tina filed a motion to recuse Judge Chapman. After Judge Nall denied the motion
to recuse, Judge Chapman severed the causes of action related to Citizens National Bank.
Rule 18a provides that a motion to recuse:
(A) must be filed as soon as practicable after the movant knows of the
ground stated in the motion; and
Haight v. Fankhauser Page 5
(B) must not be filed after the tenth day before the date set for trial or other
hearing unless, before that day, the movant neither knew nor reasonably
should have known:
(i) that the judge whose recusal is sought would preside at the trial or
hearing; or
(ii) that the ground stated in the motion existed.
TEX. R. CIV. P. 18a (b) (1). In her motion, Tina seeks to recuse Judge Chapman based upon
his ties to Citizens National Bank. Judge Chapman disclosed those ties on July 11, 2018,
and Tina did not file the motion to recuse until September 6, 2018. A motion to recuse
should be filed at the earliest practicable time after the grounds for recusal become known
to the parties. See Burnett Ranches, Ltd. v. Cano Petroleum, Inc., 289 S.W.3d 862, 872 (Tex.
App. —Amarillo 2009, pet. den’d). Moreover, Tina acknowledges in her motion to recuse
that Judge Chapman “on his own motion determined to recuse himself” from the
proceedings involving the bank. The parties agreed to sever the claims involving the
bank, and Judge Chapman later did sever those claims. We find that the Judge Nall did
not abuse his discretion in denying the motion to recuse. We overrule the first issue.
PLEA IN ABATEMENT
In the second issue, Tina argues that the trial court erred in denying her plea in
abatement. On July 11, 2018, Tina filed a plea in abatement and motion to transfer. In
her plea, Tina argued that because the divorce proceedings were filed in the 378th District
Court, that court had dominant jurisdiction over the child support issues. The child
support issues were also part of the proceedings Tina brought in this suit against the
administrator of the estate. Tina contends that because the divorce proceeding was filed
Haight v. Fankhauser Page 6
first, the suit against Fankhauser should have been abated in favor of the first-filed action.
Tina requested that the trial court abate those matters and transfer them to the 378 th
District Court.
The proper procedural disposition of a divorce action when one of the parties dies
is dismissal. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (orig. proceeding). Because
the cause of action for divorce terminated on Marty’s death, the trial court did not err in
denying the plea in abatement. We overrule the second issue.
SUMMARY JUDGMENT
In the third issue, Tina argues that the trial court erred in granting Fankhauser’s
motion for summary judgment. We review a grant of a motion for summary judgment
de novo. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Nichols v. McKinney,
553 S.W.3d 523, 527 (Tex. App. —Waco 2018, pet. den’d). In the order granting
Fankhauser’s motion for summary judgment, the trial court ordered that Tina’s:
claims for Breach of Contract and Child Support are dismissed with
prejudice to the extent they are based upon claims … which encompass her
claims based upon (a) the Rule 11 agreement executed in the Divorce
Proceeding on or about December 5, 2011, (b) the Agreed Temporary
Orders entered on March 27, 2012 in the Divorce Proceeding, and/or (c) an
alleged “implied contract” as set forth in paragraph 71 of her Fourth
Amended Petition
As previously stated, the cause of action for a divorce terminates on the death of
either spouse prior to the rendition of a judgment granting a divorce. Whatley v. Bacon,
649 S.W.2d at 299. The death of either party to the divorce action prior to entry of the
Haight v. Fankhauser Page 7
divorce decree withdraws the court's subject matter jurisdiction over the divorce action.
Pollard v. Pollard, 316 S.W.3d at 251. The Temporary Orders in the divorce proceeding
were properly dismissed after Marty’s death.
Tina argues that the child support obligation was accelerated pursuant to Section
154.015 of the Family Code. Section 154.015 provides:
(b) If the child support obligor dies before the child support
obligation terminates, the remaining unpaid balance of the child
support obligation becomes payable on the date the obligor dies.
(c) For purposes of this section, the court of continuing jurisdiction
shall determine the amount of the unpaid child support obligation
for each child of the deceased obligor. In determining the amount of
the unpaid child support obligation, the court shall consider all
relevant factors, including: …
TEX. FAM. CODE ANN. § 154.015 (b) (c) (West Supp. 2019). However, Tina did not seek to
have the trial court determine the amount of the unpaid child support obligation as
provided in Section 154.015.
Tina also alleges a breach of the Rule 11 Agreement signed by the parties on
December 5, 2011. That agreement was incorporated into the Temporary Orders and was
fulfilled when the Temporary Orders were entered. We find that the trial did not err in
granting Fankhauser’s motion for partial summary judgment. We overrule the third
issue.
CONCLUSION
We affirm the trial court’s judgment.
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JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
(Chief Justice Gray dissenting with a note)*
Affirmed
Opinion delivered and filed December 16, 2020
[CV06]
*(Chief Justice Gray dissents. A separate opinion will not issue. However, Chief Justice
Gray provides this more extensive than usual note to explain where his opinion diverges
from the Court's.
A "divorce" proceeding is a tricky thing. It is the formal proceeding leading to a judicial
decree that changes the legal status of an individual from being "married" to that of being
"single." Contrary to urban legend, there is no legal status as "divorced." A person is
either married or single. But in the process of that change in legal status from being
married to being single again, a lot of other things are also resolved. The two most
common additional big category of issues by their generic labels are property and
children. The legal issues that flow from these two categories can be mind boggling. I
will come back to those issues in a moment.
Because you cannot change the legal status of a person after they have died, it is well
established that a "divorce" proceeding becomes moot upon the death of one of the parties
to the marriage. At the moment of death, death has done what it sometimes takes the
judicial system years to accomplish; the living party is no longer married, but rather, is a
single person. That is the instantaneous result of the death; and thus, a proceeding to
divorce the other person is moot.
Now we return to the property and children. Frequently, the issues regarding property
and children result in protracted litigation of factual disputes between married persons
that are of necessity litigated at the time of the divorce proceeding. This is made possible
because the trial court's jurisdiction includes the ability to deal with these collateral issues
that arise beyond the change in status of the parties. But when one of the parties dies,
these issues, particularly those regarding property, do not necessarily go away; they go
somewhere else. See Ledbetter v. Ledbetter, 229 S.W. 576 (Tex. Civ. App. 1921). See also Parr
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v. White 543 S.W.2d 445 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.). They go
to probate court; and sometimes, as is the case here, they are severed from the probate
proceeding.
In this regard, Tina initially brought her claim in the district court divorce proceeding.
The facts underlying these disputes predated Marty's death. As the Court notes, the
parties to the divorce proceeding reached an agreement regarding temporary support
and child support. That agreement was incorporated into an order. The order does not
necessarily displace the agreement of the parties.
The question thus framed is, can the agreement of the parties survive the death of one of
the parties, like any other contract? The Court seems to conclude that the mootness of
the divorce proceeding automatically negates the agreement. I disagree. It is important
at this juncture to understand that the reason for the unusually high payment of $28,000
per month is alleged to be, in part, to resolve claims of fraud on the community estate
committed by Marty. Resolution of Tina's claim for that fraud was thus part of the
agreement and her claim, whether it is for breach of the agreement to pay $28,000 a month
or for fraud on the community, did not become moot upon Marty's death. I do not believe
there is a legitimate question of whether the claim could survive Marty's death; and the
answer to that question is a resounding, Yes.
The next question to be resolved is whether the claims did in fact survive Marty's death.
The only basis for resolving this issue by the Court is that the divorce proceeding was
dismissed because of Marty's death; so, the issues about the breach of the contract which
was the basis for the court-ordered payment for temporary spousal support and
temporary child support were moot. I disagree. In the Estate's motion for summary
judgment, not only did Fankhauser fail to show that the claim could not survive Marty's
death, he also did not conclusively show that it did not survive. And while Fankhauser
takes a swipe at the one month's accrued and unpaid claim at the time of Marty's death,
that claim was an obligation of Marty's estate owed to Tina that was matured at the time
of Marty's death; and the place to collect it, since we are not going to let it be collected in
the proceeding where the divorce was pending, is in this proceeding which has been
severed from the probate proceeding.
In summary, to the extent that the judgment in this proceeding, which is ancillary to a
probate proceeding, purports to dismiss breach of contract and other claims against a
spouse, some of the terms of which had been incorporated into a temporary order in a
divorce proceeding, because one of the parties died, is error. The dismissal of the claim
for any other reason would also be error because there was no other basis for dismissal
in the motion for summary judgment. Moreover, the breach of contract claim is
Haight v. Fankhauser Page 10
dependent on the intent of the parties that made the agreement, and that issue has not
been litigated.
With these comments, I respectfully note my dissent to the judgment of the Court which
affirms the trial court's judgment of dismissal.)
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