Briefs

By Tom Noble ¹
8080 N. Central Expressway
Suite 930
Dallas, Texas 75206
214-692-1888
fax: 692-8577
tnoble28@hotmail.com
http://www.tnoble.com/

2.12.04

Gay Marriages

All of a sudden the headlines are filled with stories about gay marriages.  Gays are queuing up for their trip to Massachusetts.  But, please don't misunderstand.  It's hard to even talk about this issue without risking offense to someone (unless you are on the extreme right, in which case you really don't give a flip.  And, that's OK, too).  But, I will level with you.  My personal philosophy on the gay/lesbian movement is akin to that of the great American philosopher, Jerry Seinfeld, who, when explaining that he wasn't gay added, "not that there is anything wrong with that".  We have enough problems enforcing violent crimes.  I don't think that we, as a society, should worry with people who do what they want in the privacy of their own bedrooms - even if it offends us.  On the other hand, MARRIAGE?  On this issue I agree with Ms. Still Spunky, Dolly Parton.  When appearing on Oprah recently with well-known fugitive from the Island of Lesbos, Melissa Ethridge ² , Dolly said, "I think the notion of gay marriage is great.  There is no reason why those people should not be just as miserable as the rest of us".  Hitting even closer to home, I firmly believe that all divorce lawyers should lobby hard for gay marriages in Texas.  They owe it to their profession.  It will be a bonanza in fees.

The Risks of Cohabitation

Speaking of creative relationships, Henry and Ann started cohabiting when they were both in their 70s (why  not?). They filed separate tax returns and referred to each other as "friends" on hospital forms and estate planning documents.  They carried on like that for nine years, and he finally made her an honest woman ³ .  Poor girl passed over a couple of years into the marriage, and Henry followed a few months after.  Ann's kids, who probably never even came to visit on Sundays after church, sued Henry's estate, claiming that Henry and Ann were actually married by common law back in 1986, when they started cohabiting ⁴ .  Now, of course, we all know that it takes more than that.  In order to be married by common law ⁵ , you not only have to cohabit, you have to agree to be married and hold yourselves out in Texas as hubby and spouse.  The problem is what constitutes "holding out"? ⁶

The kids fought over this all the way through a jury trial.  Now, here's the kicker: the jury found that a common law marriage did occur because "friends and neighbors testified that they considered the two to be married because they lived together and held hands, showed affection, and 'did everything together ... and took care of each other during sicknesses". ⁷

The trial judge then through out the jury verdict and rendered a judgment n.o.v. that there was not enough evidence of common law marriage.

Then, the losers appealed.  Interesting procedural point here: the appellate court said that what the trial judge should have done when he found that there was not enough evidence to sustain the jury verdict is grant a new trial, not render judgment; meaning, obviously, that the parties could have spent a lot more money trying the case again.  But, apparently, Ann's estate screwed up and didn't raise this issue. ⁸

What a mess!  Henry and Ann are rocking and rolling in their crypts!  They could have avoided all of that hassle for their children with a simple cohabitation agreement.  So, if you start to succumb to the temptations of the flesh, remember, even the most loving people can inadvertently leave their heirs a messy situation.

Book Recommendation

"There is an unwritten law in the medical profession: Inept doctors do not get reported.  Just get them out of town". ⁹   Speaking of crypts, Blind Eye, by James B. Stewart, is a page-turning non-fiction account of Dr. Michael Swango, who went from hospital to hospital around the United States and later in Africa poisoning everyone around him, including God knows how many of his patients.  The FBI estimates that he killed 60 people and poisoned a number of others who did not die.  Yet, he has never been charged with murder.  But, the book is not only about Swango.  It exposes the system of hospitals and medical schools that protected Swango, allowing him to move from one medical facility to another with no checks or balances.  The comparison to recent events within the Catholic Church is hard to ignore.

"From the point of view of a determined serial killer, a hospital is almost the ideal setting, since murder can so easily be camouflaged as natural death". ¹⁰  

The moral: Think before you get sick!

¹ Not Certified by the Texas Board of Legal Specialization

² I'm sorry Melissa.  That was a little tacky.  I really like your music.  Really I do.

³ Am I dating myself with that expression?

⁴ Obviously, Henry had some good years and was an accumulator of enough goodies to justify full-tilt litigation.

⁵ Actually, the Texas Family Code refers to such arrangements as "informal marriages".  The descriptions: FORMAL marriage and INFORMAL marriage are amusing when you think about it.  Yes?  How about REALLY REALLY FORMAL or BARELY INFORMAL? 

⁶ This problem is compounded by the fact that the law allows proof of these elements by circumstantial evidence.

⁷ Ah!  Isn't that sweet? C'mon, admit it!

⁸   Mills v. Mest, 94 S.W.3d 72 (Tex. App. - Houston [14th Dist.] 2002).

⁹ p. 300.

¹⁰ p. 295.