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In Estate of Navarro

Court of Appeals of Texas, Fourth District, San Antonio

June 7, 2017


         From the Probate Court No. 2, Bexar County, Texas Trial Court No. 2015-PC-1902 Honorable Tom Rickhoff, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice


          Karen Angelini, Justice

         Following the death of Jesus N. Navarro, III, Navarro's son filed an application to probate his father's will and for issuance of letters testamentary. The probate court ordered the will probated and appointed Navarro's son as independent executor. Navarro's widow, appellee Diane Marie Navarro, filed an application to set aside certain personal property and the couple's homestead as exempt property for her use and benefit. The probate court granted the application, and this appeal by the independent executor ensued. On appeal, appellant asserts the probate court violated his right to due process by denying him the right to cross-examine appellee and he challenges the sufficiency of the evidence to support a finding on whether appellee abandoned the homestead.[1] We affirm.


         Jesus N. Navarro, III, died on March 18, 2015. Prior to his death, Navarro inherited from his father a home located in San Antonio, Texas. Navarro and appellee lived in the house and claimed it as their homestead.[2] However, sometime in 2013, appellee left the homestead and lived apart from her husband until he died. After the probate of Navarro's will, appellee filed an application to set aside as exempt certain personal property that remained in the house and the couple's homestead. On January 29, 2016, the probate court conducted a hearing on the application, at which appellant and appellee testified.

         At the start of the hearing, appellant's attorney stated the only issue was whether "there was an effective abandonment of the homestead." Appellee's attorney argued that because appellant had not filed any response to appellee's application, any reason appellant asserted as to why appellee was not entitled to stay in the homestead should not be heard by the court. Without commenting or ruling on either argument, the probate court heard testimony from the witnesses.

         Appellee testified she and Navarro had been married for twenty-one years and they had no children.[3] She said she and Navarro paid rent on the house to her father-in-law from 1998 to 2005, and were in the process of buying the house from her father-in-law when he died in 2005. Navarro then inherited his father's house. Appellee said she moved out of the marital home about eighteen months before Navarro died, and at the time of his death, they were "sort of" separated. Appellee said she left because Navarro "ran [her] out the house [and he] was a very abusive husband." After her husband's death, appellee tried to move back into the house, but another member of Navarro's family had already moved into the house.

         Appellee said Navarro was abusive and would run her out of the house throughout their marriage, and she often went to stay with her father or her sons. When she left the house before Navarro died, she left behind all her belongings, taking only the clothes she wore. However, she said she always planned to return to the home. When asked when she planned to return, appellee responded: "Soon as things would work out between me and my husband because he was very abusive like I said and as soon as he would behave." She said that, during their separation, they would talk, meet for meals, and help each other with errands. When asked if she abandoned her husband, she replied, "No . . . never." According to appellee, she gave notice of her intent to live in the homestead by leaving her sisters a "note" to that effect, she still had her house keys, she applied for a life estate in the house, and she obtained a writ of reentry.

         Appellant admitted appellee and his father were still married when his father died. He also admitted the couple argued, but he said they argued because appellee's adult sons were jobless and living in the house. Appellant testified appellee moved out of the house she shared with his father in 2013, got her own apartment, and "moved on with her life." Appellant said his father "was sad" and wanted her to come back to him, but she refused. Appellant said appellee was living on her own and had "been seen with other people." According to appellant, appellee told his father, "I will never come back to this life, " "meaning that she's not used to being poor because at the time they were running a business." Appellant testified his father was finally happy just before he died, and his father no longer thought about appellee coming back because she had moved on with her life. Appellant said his father characterized himself and his wife as "good friends" who could not afford to get divorced. Appellant did not believe his father was abusive.

         At some point, in the midst of appellant's testimony, the probate court asked if either attorney had any case law on abandonment, and appellant's counsel replied that he did not but he could brief the court. The probate judge replied he could look the cases up himself, and appellant's testimony resumed. It appears from the record that after appellant finished his testimony, appellee's counsel presented the court with case law on abandonment. Appellant's counsel said he had also identified two cases, but the court said it had read those cases and "[i]f you [appellant's attorney] want to put one in, I'm going to give you a little time to put one in." The probate court said it would then review the law, it believed it had enough evidence, and it would rule. On March 7, 2016, the probate court granted appellee's application.


         In his first issue, appellant asserts the probate court erred by denying his attorney the right to cross-examine appellee. Nothing in the record supports this contention, and appellant cites to no place in the record where counsel requested, but was denied, the right to cross-examine appellee. Because appellant did not ask to cross-examine appellee or raise any complaint to the probate court regarding his perceived inability to cross-examine her, appellant did not preserve any error on the issue. See Tex. R. App. P. 33.1 (to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion calling the trial court's attention to the complaint); see also Matter of D.T.M., 932 S.W.2d 647, 652 (Tex. App.- Fort Worth 1996, no writ) (even constitutional arguments are waived at appellate level if issues were not before the trial court).

         ABANDONMENT ...

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