WPCG5 2~ ZBVXXN\  PXPa1DocumentDocument StyleF *  ׃  a2DocumentDocument Style*    a3DocumentDocument Style0     2Zpe epa4DocumentDocument Style . a5DocumentDocument Style   a6DocumentDocument Style   a7DocumentDocument Style ` ` ` 2p   Ha8DocumentDocument Style` ` ` a1TechnicalTechnical Document Style 4!     a2TechnicalTechnical Document Style *    a3TechnicalTechnical Document Style '    2/  'a4TechnicalTechnical Document Style &    a5TechnicalTechnical Document Style &  . a6TechnicalTechnical Document Style&  . a7TechnicalTechnical Document Style&  . 2 a  w  a8TechnicalTechnical Document Style&   . a1Right ParRight-Aligned Paragraph Numbers8!"@   a2Right ParRight-Aligned Paragraph NumbersA#$@` `  ` ` ` a3Right ParRight-Aligned Paragraph NumbersJ%&@  ` `  2  K  a4Right ParRight-Aligned Paragraph NumbersS'(@  a5Right ParRight-Aligned Paragraph Numbers\)*@hh# hhh a6Right ParRight-Aligned Paragraph Numberse+,@( hh# a7Right ParRight-Aligned Paragraph Numbersn-.@- ( 2T>a8Right ParRight-Aligned Paragraph Numbersw/0@pp2 -ppp     X0Í Í X0Í Í Roman 12ptRoman Courier 12pt'12#d6X@@#Op. DraftOpinion -- Draft34  (c#j\  P6;XPH#   3 1, 4 @&D R A F T` APage  _______________________________________________________ 2njItalic 12ptItalics Courier 12pt type'56'#x6NhH##x6NhH#BibliogrphyBibliography78 Doc InitInitialize Document Style9:    I. 1. A. a.(1)(a) i) a)DocumentҲTech InitInitialize Technical Style;< 1 .1 .1 .1 .1 .1 .1 .1 Technical2H 3!"_PleadingHeader for numbered pleading paper=>   ,#j\  P6;XPH# X  y*dddyy*dddy H\1 H\2 H\3 H\4 H\5 H\6 H\7 H\8 H\9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   Home PtrSets codes for printing opinions on Sperry Laser Q?@ X #Xx6X@X@#  EnvelopeEnvelope!AB '3 II    Xp,  p,p, Letter 2Personal stationery with standard margins"bCD#XN\  PXP#   p,  3 1, 4 2#K$%p&pLetter 3Personal stationery with narrow margins#bEF#&R2P&P#     3 1, 4 Letter 1Court stationery$PGH#XZ2P XP# * 3 1, 4 ؃ Single Space% I J1Document Style&KL` ` ` 2!'q(e0 )e * 2Document Style'M N . 3Document Style( OP 4Document Style) QR 5Document Style**ST   2#+p!,/"-".\#6Document Style+UV` ` ` 7Right-Aligned Paragraph Numbers,8WX@   8Right-Aligned Paragraph Numbers-AYZ@` `  ` ` ` 9Document Style.0[ \    2&/#$0$1t%2*&10Right-Aligned Paragraph Numbers/J]^@  ` `  11Right-Aligned Paragraph Numbers0S_`@  12Right-Aligned Paragraph Numbers1\ab@hh# hhh 13Right-Aligned Paragraph Numbers2ecd@( hh# 2)3'4'5(6n)14Right-Aligned Paragraph Numbers3nef@- ( 15Right-Aligned Paragraph Numbers4wgh@pp2 -ppp 16Document Style5Fij *  ׃  17Technical Document Style6&kl  . 2o,7%*8*9F+:+18Technical Document Style7&mn  . 19Technical Document Style8*op    20Technical Document Style9'qr   21Technical Document Style:&st   2 5;,<Q-=-0[.22Technical Document Style;4u$v     23Technical Document Style<&wx  . 24Technical Document Style=&yz  . īXN\  PXPx9 Z6Times New Roman RegularXd6X@@<6X9`("Courier NewTTj\  P6;XPH%\  `$Times New RomanXx6NhHH  9`(.Courier NewItalicTTx6NhHH  9`(.Courier NewItalicTTj\  P6;XPH%\  `$Times New RomanXXx6X@X@<6X9`("Courier NewTTXXN\  PXP% [  `*Times New RomanTTX&R2P&P7|A`$ArialTT&XZ2P XP& A`ArialTTX2=5E53|x  IN THE SUPREME COURT OF TEXAS ă & &No. 970684ă & In Re Samuel R. Graham, successor guardian of The Estate of Richard M. Milton, an incapacitated person, Relator   On Petition for Writ of Mandamus   e Argued on January 7, 1998 ă  Justice Hankinson delivered the opinion for a unanimous Court. In this original proceeding, we decide whether a statutory probate court has the authority to transfer to itself from district court a divorce action when one spouse is a ward of the probate court. Section 608 of the Texas Probate Code authorizes a statutory probate court to transfer to itself a matter appertaining or incident to a guardianship estate. The court of appeals conditionally issued a writ of mandamus compelling the probate court to vacate its order transferring Gitta and Richard Miltons divorce, filed in a Travis County district court, to Travis County Probate Court Number One, where a guardianship of Mr. Miltons estate and person is pending. 947 S.W.2d 737. Because we conclude that the Miltons divorce proceeding is a matter appertaining and incident to Mr. Miltons guardianship estate, we conditionally grant Relators petition for writ of mandamus and direct the court of appeals to vacate its order. Gitta and Richard Milton married in July 1991 and had one child. In April 1995, Mr. Milton attempted suicide; he is now incapacitated and resides in an Austin nursing home. Following Mr. Miltons attempted suicide, the probate court appointed Mrs. Milton guardian of her husbands person and estate. But after discovering a deed in which Mrs. Milton had transferred title to the community homestead to herself, the probate court appointed Nancy Scherer as Mr. Miltons attorney ad litem. Scherer then filed a motion to show cause why Mrs. Milton should not be removed as guardian of her husbands estate. During a hearing on the motion, the probate court instructed Mrs. Milton on her duties as guardian and directed her to take corrective actions. After the hearing, however, Mrs. Milton filed for divorce in a Travis County district court; she resigned as guardian the next day. The probate court then appointed Scherer guardian of Mr. Miltons estate,itself under Probate Code section 608.  Mrs. Milton responded by filing a petition for writ of mandamus in the court of appeals, alleging that the transfer was improper. The court of appeals conditionally granted the writ, ordering the probate court to withdraw its transfer order, and the probate court complied. Scherer moved for rehearing at the court of appeals. After being informed of the rehearing motion, the probate court reinstated its transfer order and resumed the show cause proceeding. The court of appeals issued a substitute opinion, overruling Scherers motion for rehearing and again directing the probate court to vacate its transfer order. 947 S.W.2d at 742. The same day, the probate court informed the parties by letter of its conclusion that certain property characterized as community property in probate pleadings by Mrs. Milton was Mr. Miltons separate property and that his separate estate owned certain reimbursement claims against the community property estate. In addition, the probate court awarded Scherer attorneys fees. Mrs. Milton then filed an application for writ of prohibition and injunction in the court of appeals, requesting the court to direct the probate court to vacate its orders [awarding Scherer attorneys fees and characterizing property in the marital estate] . . . and enjoin [it] from further attempts to interfere with . . . the jurisdiction of . . . the [d]istrict [c]ourt. The application is still pending in the court of appeals. Following the mandamus proceeding and the filing of the application for writ of prohibition and injunction in the court of appeals, Scherer resigned as successor guardian of Mr. Miltons estate, and the probate court appointed Samuel Graham, Relator before this Court, successor guardian. Thereafter, the parties began mediated settlement negotiations of the divorce proceedings. As a result, they signed a written agreement, pursuant to Texas Rule of Civil Procedure 11, settling the property division and support issues. Because the guardianship remained pending in the probate court, Graham moved to approve the settlement with that court. The probate court issued an order approving the settlement, conditioned on the inclusion of certain amendments. The district court rendered a final decree of divorce, but Graham filed a motion for new trial in the district court, asserting that the decree did not comport with the rule 11 agreement or the probate courts amendments. Graham also filed this original proceeding, seeking relief from the court of appeals mandamus order and arguing that the probate courts transfer of the Miltons divorce was proper. The question presented for our review is whether the probate court acted without authority in transferring the divorce. Section 608 of the Probate Code authorizes a statutory probate court to transf estate: A judge of a statutory probate court on the motion of a party to the action or of a person interested in a guardianship, may transfer to the judges court from a district, county, or statutory court a cause of action appertaining to or incident to a guardianship estate that is pending in the statutory probate court and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to the guardianship estate. Tex. Prob. Code  608. A cause of action is appertaining or incident to an estate if section 607 of the Probate Court explicitly defines it as such or if the controlling issue in the suit is the settlement, partition, or distribution of an estate. See Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 182 (Tex. 1992). Section 607 defines the term appertaining to or incident to an estate to include, among other things, all actions for trial of the right of property incident to a guardianship estate, and generally all matters relating to the settlement, partition, and distribution of a guardianship estate. Tex. Prob. Code  607(b). Relying on English v. Gregory, 714 S.W.2d 443 (Tex. App. " Houston [14th Dist.] 1986, orig. proceeding), and Williams v. Scanlan, 714 S.W.2d 38 (Tex. App. " Houston [14th Dist.] 1986, orig. proceeding), and notwithstanding the language of sections 607 and 608, Mrs. Milton argues that the probate court does not have authority to transfer to itself a divorce proceeding because only district courts have the power to grant all requested relief in family matters. We disagree. Although Williams and English imply that district court jurisdiction over divorces is exclusive, both cases were decided before the Legislature narrowed the exclusive jurisdiction of district courts in 1987. See Act of May 21, 1987, 70th Leg., R.S., ch. 148,  1.36, 1987 Tex. Gen. Laws 538. Before 1987, the Government Code specified that district courts had exclusive jurisdiction over divorces.  Id. The revised section states that [t]he district court has the jurisdiction provided by Article V, Section 8, of the Texas Constitution. Tex. Govt Code  24.007. In turn, article V, section 8 bridles the exclusive jurisdiction of district courts when jurisdiction is conferred on another court: District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court . . . . Tex. Const. art. V,  8 (emphasis added). The Probate Code confers jurisdiction on statutory probate courts to hear matters appertaining to or incident to a guardianship estate. See Tex. Prob. Code  607(b) ( In a situation in which the jurisdiction of a statutory probate court is concurrent with that of a district court, a cause of action appertaining to or incident to a guardianship estate shall be brought in a statutory probate court rather than in the district court.); Tex. Prob. Code  606(c) ( In those counties in which there is a statutory probate court . . . all applications, petitions and motions regarding guardianships . . . or other matters addressed by this chapter shall be filed and heard in those courts . . . .); Tex. Prob. Code  606(e) ( A court that exercises original probate jurisdiction has the power to hear all matters incident to an estate.). Thus, current Texas law does not impede a probate court from providing all necessary relief in a divorce action when it properly transfers to itself a cause of action appertaining or incident to a guardianship estate. We must next determine whether the divorce proceeding itself is appertaining to or incident to the guardianship estate. Courts have determined that a variety of matters are appertaining or incident to an estate. See Lucik v. Taylor, 596 S.W.2d 514, 516 (Tex. 1980) (holding that suits incident to an estate include determining whether property was part of marital estate); Potter v. Potter, 545 S.W.2d 43, 44 (Tex. Civ. App. " Houston [1st Dist.] 1976, writ refd n.r.e.) (concluding that probate court has jurisdiction to determine whether shares of stock were part of community estate or separate property); see also Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 582 (Tex. 1993) (recovery of delinquent ad valorem taxes); English v. Cobb, 593 S.W.2d 674, 674 (Tex. 1979) (conversion of esta (probate court determines who has the right to control, transfer, and vote the stock of decedent). To determine whether this is such a proceeding, we review Mrs. Miltons pleadings. In her original divorce petition, she requested (1) a disproportionate share of the parties estate, (2) reimbursement to the community estate for funds used to benefit Mr. Miltons separate estate, (3) reimbursement to her separate estate for funds used to benefit Mr. Miltons separate estate, and (4) reimbursement to her separate estate for funds used to benefit the community estate. Mrs. Milton also sought temporary orders (1) awarding her exclusive control of all community property, (2) enjoining Mr. Miltons guardian from entering, operating, or exercising control over the community property, (3) ordering the guardianship estate to pay child support, and (4) ordering Mr. Miltons separate estate to pay interim attorneys fees. Thus, the outcome of this divorce proceeding, which involves child support but not child custody or visitation, necessarily appertains to Mr. Miltons estate because it directly impacts the assimilation, distribution, and settlement of his estate. See Tex. prob. Code  607; Palmer, 851 S.W.2d at 182; see also Tex. Fam. Code  3.63 ( In a decree of divorce . . . the court shall order a division of the estate of the parties . . . .); In re Johnson, 595 S.W.2d 900, 903 (Tex. Civ. App. " Amarillo 1980, writ dismd w.o.j.) (explaining that without a property division, a divorce is not final).XXThe Probate Code provides that these claims may be resolved in the same court by the same judge. See Tex. Prob. Code  607 608. This interpretation comports with legislative intent as evidenced by the Legislatures persistent expansion of statutory probate court jurisdiction over the years. See Palmer, 851 S.W.2d at 181 ( In 1985, the legislature responded to Seay by amending the Texas Probate Code to broaden statutory probate court jurisdiction.); Seay v. Hall, 677 S.W.2d 19, 21, 25 (Tex. 1984) (noting that the Legislature recognizes probate court expertise in handling estate matters but concluding that statutory probate courts do not have jurisdiction to hear wrongful death and survival claims). That this case involves child support issues does not alter our conclusion. The Probate Code affirmatively grants probate courts the authority to order child support payments after balancing the childs interests with the wards interests. See Tex. Prob. Code  776A(a)(b) (granting probate courts broad authority to order expenditure of funds from wards estate for the education and maintenance of wards spouse or dependents after considering, among other things, the circumstances of ward, wards spouse, and wards dependents). The Probate Code also charges the probate court with monitoring payments from the guardianship estate. See, e.g., Tex. Prob. Code  671(a) (requiring courts to determine whether guardian is performing all duties that pertain to ward and wards estate); Tex. Prob. Code  741 (requiring the probate court to review guardians accounting of wards estate at least annually); Tex. Prob. Code  742 (describing when court may authorize payments of claims made against the guardianship estate after reviewing guardians accounting); Tex. Prob. Code  743 (requiring probate court to review guardians annual report of disbursements for the support and maintenance of the ward and . . . the wards dependents). Because Mr. Miltons child support obligations will be paid from his guardianship estate, the probate court can effectively and efficiently supervise the payments to ensure that the interests of both Mr. Milton and his child are protected. Accordingly, we hold that a statutory probate court has authority under Probate Code section 608 to transfer to itself from district court a divorce proceeding when one party to the divorce is a ward of the probate court. Because the court of appeals exceeded its mandamus power when it disturbed the probate courts judgment absent an abuse of discretion, exercise of our mandamus authority is proper. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985, orig. proceeding). We therefore conditionally grant the writ of mandamus, which will issue only if the court of appeals does not vacate its mandamus judgment.  ` ` ` hhh_______________________________________ ` ` ` hhhDEBORAH G. HANKINSON ` ` ` hhhJUSTICE OPINION DELIVERED: June 5, 1998