Littleton Filings
Texas 4th Court of Appeals
(from records of Maloney & Maloney originally representing Christie Lee Littleton, Plaintiff)


No. 04-99-00010-CV

IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
_______________________________________

CHRISTIE LEE LITTLETON, Individually and a Next Heir of JONATHON MARK LITTLETON, Deceased,

Appellant

v.

DR. MARK A. PRANGE

Appellee
_______________________________________

BRIEF OF APPELLANT
_______________________________________

Dale Hicks
State Bar No. 09575430
Jon Hyde
State Bar No. 10370520
LAW OFFICES OF MALONEY & MALONEY
A Professional Corporation
200 Milam Building
115 East Travis
San Antonio, Texas 78205
Telephone (210) 227-7000
Telefax (210) 227-5714

Attorneys for the Petitioner

___________________________________

[names of all parties and Table of Contents omitted; all previous motions, 
stipulations, rulings, and evidence of the lower court were attached]
___________________________________

INDEX OF AUTHORITIES

Cases

Black v. Shell Oil Co., 397W.W. 2d 877 (Tex. Civ. App. Texarkana 1965, writ ref'd n.r.e.)

Brown V. Edwards Transfer Co., 764 S.W. 2d 220 (Tex. 1988)

Corbett v. Corbett, 2 W.L.R. 1306, 2All E.R. 33 (P.D.A. 1970)

Dean v. Goldwire, 480 S.W. 2d 494 (Tex. Civ. App Waco 1972, writ ref'd n.r.e.)

Drummon v. Benson, 133 S.W. 2d 154 (Tex. Civ. App. San Antonio 1939, writ ref'd)

Fuentes v. TransAmerican Natural Gas Corp., 933 S.W. 2d 624 (Tex. App. San Antonio 1996) rev'd, 962 S.W. 2d 28 (Tex. 1989)

Garza v. Maverick Mkt., Inc., 768 S.W. 2d 273 (Tex. 1989)

Gonzalez v. City of Harlingen, 814 S.W. 2d 109 (Tex. App. Corpus Christi 1991, writ denied)

Jasso v. Robertson, 771 S.W. 2d 231 (Tex. App. Houston [1st Dist.] 1989, orig. proceeding)

In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E. 2d 828 (1987)

M.T. v. J.T., 140 N.J. Super. 77, 355 A. 2d 204 (App. Div.), cert. denied, 71 N.J. 345, 364 A. 2d 1076 (N.J. 1976)

Murdock v. Murdock, 811 S.W. 2d 557 (Tex. 1991)

Murphy v. State, 653 S.W. 2d 567 (Tex. App. San Antonio 1983, pet. ref'd)

Nixon v. Mr. Property Management Co., 690 S.W. 2d 546 (Tex. 1985)

Rose v. Doctors Hosp., 801 S.W. 2d 841 (Tex. 1990)

Rosell v. State Industrial Accident Commission, 164 Or. 173, 95 P. 2d 726 (1939)

Rutgers Council of AAUP Chapters v. Rutgers, The State University, 298 N.J. Super. 442, 456-689 A. 2d 828, 834 (1997)

Schacht v. Schacht, 435 S.W. 2d 197 (Tex. Civ. App. Dallas 1968, no writ)

Sheperd v. Ledford, 962 S.W. 2d 28 (Tex. 1998)

Slayton v. State, 633 S.W. 2d 934 (Tex App. Fort Worth 1982, no pet.)

Speer v. Presybyterian Children's Home and Serv. Agency, 847 S.W. 2d 227 (Tex. 1993)

Speir v. National Maritime Union Pension and Welfare Plan, 449 S.W. 2d 350 (Tex. Civ. App. Houston [1st Dist.] 1969, error ref. n.r.e.)

Texas Employers' Insurance Association v. Elder, 282 S.W. 2d 371 (Tex. 1955)

Villegas v. Griffin Indus., 975 S.W. 2d 745 (Tex. App. corpus Christi 1998, writ denied)

Walter v. Walter, 433 S.W. 2d 183 (Tex. Civ. App. Houston [1st Dist.] 1968, writ ref'd n.r.e.)

Woods v. Hardware Mut. Casualty Co., 141 S.W. 2d 972 (Tex. Civ. App. Austin 1940, writ ref'd)

Statutes

Tex. Civ. Prac.& Rem Code 71.004(a)

Tex. Civ. Prac.& Rem Code 71.021(b)

Tex. Fam. Code 1.101

Tex. Fam. Code 1.103

Tex. Fam. Code 2.001

Tex. Fam. Code 2.301

Tex. Fam. Code 6.201

Tex. Fam. Code 6.202

Tex. Fam. Code 6.307

Tex. Health & Safety Code 191.028

Tex. Health & Safety Code 192.011

Tex. Penal Code 22.011(2)

Tex. Prob. Code 38(b)

Tex. Prob. Code 3(o)

Tex. Rev. Civ. Stat. Art. 6243n-1(28)

38 U.S.C.A. 101(31)

Other Authorities

Op. Atty. Gen 1972, No. M-1277

Swartz, L. H., M.L.L., N.R. (1997) Updated Look at Legal Responses to Transsexualism: Especially Three Marriage Cases in U.K., U.S. and New Zealand, IJT 1,2.

___________________________________

BRIEF OF APPELLANT
___________________________________

STATEMENT OF THE CASE

Nature of the case:

The underlying proceed is a medical negligence actionbrought under the Wrongful Death Act and the Survival Statute for money damages.

Course of proceedings:

This appeal originated in Cause No. 97-CI-15491, which included as Plaintiffs, Appellant, the decedent's mother, and his ex-wife as the next friend of the decedent's two minor children. Defendants filed Motions for Partial Summary Judgment with respect to all claims asserted by Appellant. [Other grounds for Summary Judgment by the Hospital against the other Plaintiffs which are not at issue here; in any event, they have been rendered moot by virtue of non-suit.] The trial court granted partial summary judgment against Appellant and simultaneously ordered her cause of action severed and docketed under Cause No. 98-CI-15220. Subsequently, Appellant took a non-suit against Hospital and now appeals the summary judgment only as to Appellee, Dr. Mark A. Prange.

Trial Court's disposition of the case:

The Partial Summary Judgment entered on October 14, 1998 [APP. Ex. "A"] [1] recited that Appellant's claims as a wrongful death beneficiary and that she take nothing of and from Appellee. On November 5, 1998, Appellant filed a Motion to Modify or Reform Judgment to clarify the extent of the take nothing judgment against Appellant. The trial court granted the motion and entered a Modified Final Partial Summary Judgment and Order [APP. Ex. "B"] on December 22, 1998, making it clear that Appellant's standing to bring a survival claim was also disposed of in the Partial Summary Judgment entered on October 14, 1998.

ISSUE PRESENTED

DID THE TRIAL COURT ERR IN GRANTING 
THE MOTION FOR SUMMARY JUDGMENT.

SUB ISSUE ONE

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT'S MARRIAGE WAS BETWEEN PERSONS OF THE SAME SEX; THERE IS NO SUMMARY JUDGMENT EVIDENCE THAT APPELLANT WAS MALE AT THE TIME OF HER CEREMONIAL MARRIAGE TO THE DECEASED.

SUB ISSUE TWO

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT WAS MALE AT THE TIME OF HERE CEREMONIAL MARRIAGE TO THE DECEASED; SEX AT BIRTH IS NOT THE TEST FOR DETERMINING THE SEX OF A TRUE POST-OPERATIVE TRANSSEXUAL FOR PURPOSES OF MARRIAGE.

SUB ISSUE THREE

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT'S MARRIAGE IS VOID; THERE IS NO SUMMARY JUDGMENT EVIDENCE THAT REBUTS THE PRESUMPTION OF VALIDITY OF MARRIAGE.

SUB ISSUE FOUR

THE SUMMARY JUDGMENT SHOULD BE REVERSED BECAUSE, AT THE VERY LEAST, APPELLANT PRODUCED SUMMARY JUDGMENT EVIDENCE RAISING A GENUINE ISSUE OF MATERIAL FACT THAT PRECLUDES SUMMARY JUDGMENT.

STATEMENT OF FACTS

The parties in this case entered into a Stipulation [APP. Ex. "C"] regarding the facts of this case as follows:

The facts stipulated to solely for the purpose of the Motions for Partial Summary Judgment filed on behalf of the Defendants, and to avoid challenges to the summary judgment evidence on appeal. For purposes of the Motions for Partial Summary Judgment, Plaintiff and Defendants stipulate the following facts and agree that the Court considered these stipulated facts along with the summary judgment evidence, in determining whether to grant Defendant's Motion for Partial Summary Judgment.

The parties stipulate that Dr. Greer and Dr. Mohl will testify that the definition of a transsexual is someone whose physical anatomy does not correspond to their sense of being or their sense of gender, and that medical science has not been able to identify the exact cause of this condition, but it is in medical probability a combination of neuro-biological, genetic and neonatal environmental factors.

Dr. Greer and Dr. Mohl will also testify that in arriving at a diagnosis of transsexualism in Plaintiff, the program at the University of Texas Health Science Center was guided by the guidelines established by the Johns Hopkins Group and that, based on those guidelines, Plaintiff was diagnosed psychologically and psychiatrically as a genuine male to female transsexual. Dr. Greer and Dr. Mohl will testify that true male to female transsexuals are, in their opinion, psychologically and psychiatrically female before and after the sex reassignment surgery, and that the Plaintiff is a true male to female transsexual.

On or about November 5, 1979, Dr. Donald Greer served as a principal member of the surgical team who performed the sex reassignment surgery on Plaintiff. In Dr. Greer's opinion, the anatomical and genital features of Plaintiff, following that surgery, are such that she has the capacity to function sexually as a female. Both Dr. Greer and Dr. Mohl will testify that, in their opinions, following the successful completion of Plaintiff's participation in the University of Texas gender dysphoria program, Plaintiff is medically a woman.

On December 27, 1989, Christie Lee Cavazos and Jonathon Mark Littleton were issued a marriage license by the Commonwealth of Kentucky, County of Fayette. Christie Lee Littleton and Jonathon Mark Littleton were ceremonially married on December 31, 1989 by Richard Newsome, a minister of the Christian Faith Center.

On July 29, 1996, Jonathon Mark Littleton passed away. Christie Lee Littleton seeks to recover damages from Defendants for his death under the Texas Wrongful Death and Survival Statute. Defendants challenged Christie Lee Littleton's status as a wrongful death beneficiary by filing Motions for Partial Summary Judgment on July 23, 1998. On August 7, 1998, Plaintiff filed an Original Petition to Amend Birth Certificate and an Order was entered requiring Plaintiff's birth certificate to be changed to reflect the name "Christie Lee Cavazos" and the sex to be changed from male to female. An amended Certificate of Vital Records was issued accordingly on August 14, 1998.

SUMMARY OF THE ARGUMENT

The trial court erred in granting partial summary judgment of Appellant's causes of action under the Wrongful Death and Survival Statutes because Appellee did not meet his burden of proving that the marriage of Appellant to Jonathon Mark Littleton was a marriage between persons of the same sex and, thereby, void as a matter of law. Rather, the unrebutted summary judgment evidence clearly establishes that Appellant was psychologically, emotionally, socially, anatomically, sexually, and medically a woman when she married Jonathon Mark Littleton.

ARGUMENT

APPLICABLE LAW

A. Wrongful Death Act

An action to recover damages for wrongful death is for the exclusive benefit of the deceased's surviving spouse, children, and parents.  Sheperd v. Ledford, 962 S.W. 2d 28, 31 (Tex. 1998) citing Tex. Civ. Prac. & Rem. Code 71.004(a); Rose v. Doctors Hosp., 801 S.W. 2d 841, 846 (Tex 1990); Garza v. Maverick Mkt., Inc., 768 S.W. 2d 273, 276 (Tex. 1989); Brown v. Edwards Transfer Co., 764 S.W. 2d 220, 222 (Tex. 1988). Furthermore, to bring suit under the Wrongful Death Act, a party is required to prove that he or she was the deceased's spouse, child, or parent. Id. citing Tex. Civ. Prac. & Rem. Code 71.004(a); Garza, 768 S.W. 2d at 275-76; Brown, 764 S.W. 2d at 220.

B. Survival Statute

The Survival Statute provides that only a personal representative, administrator, or heir may sue on behalf of an estate. See Tex. Civ. Prac. & Rem. Code 71.021(b). If the decedent dies intestate, under the probate code his surviving spouse would be an heir and qualified to bring a survival action. Villegas v. Griffin Indus., 975 S.W. 2d 745, 749 (Tex. App. Corpus Christi 1998, writ denied), citing Tex. Prob. Code 38(b). See also Tex. Prob. Code 3(o) ("Heirs" denote those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution of the estate of a decedent who dies intestate).

C. Surviving Spouse

Surviving "spouse" is not defined in the Wrongful Death Act or the Probate Code. However, other statutes and cases from other areas provide the accepted definition. See, Tex. Penal Code 22.011(2) ("Spouse" means a person who is legally married to another); Tex. Rev. Civ. Stat. art. 6243n-1(28) ("Spouse means a spouse as recognized under the laws of this state) 38 U.S.C.A. 101(31) (The term "spouse" means a person of the oppostite sex who is a wife or husband); Speir v. National Maritime Union Pension and Welfare Plan, 449 S.W. 2d 350, 352 (Tex. Civ. App. Houston [1st Dist.] 1969, error ref. n.r.e.), citing Rosell v. State Industrial Accident Commission, 164 Or. 173, 95 P. 2d 726 (1939) (Spouse means one's wife or husband; Woods v. Hardware Mut. Casualty Co., 141 S.W. 2d 972, 977 (Tex. Civ. App. Austin 1940, writ ref'd) ("Wife" means a lawful wife, and a putative wife cannot qualify as a beneficiary).

D. Marriage

Even though the Appellant and decedent were ceremonially married in the state of Kentucky, Texas law will apply. See Tex. Fam. Code 1.103 (the law of this state applies to persons married elsewhere who are domiciled in this state). Additionally, the trial court has the jurisdiction to declare a marriage void if at lease one party is domiciled in Texas. See Tex. Fam. Code 6.307.

The Texas Family Code requires that a marriage license be obtained before entering into a ceremonial marriage, and a license may not be issued for the marriage of persons of the same sex. Tex. Fam. Code 2.001. This statute provides the legal basis for the proposition that it is not possible for a marriage to exist between persons of the same sex in Texas. Slayton v. State, 633 S.W. 2d 934, 937 (Tex, App. Fort Worth 1982, no pet.). See also, Op. Atty. Gen. 1972, No. M-1277 (It is impossible for persons of the same sex to acquire the status of a marriage in Texas).

SUB ISSUE ONE

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT'S MARRIAGE WAS BETWEEN PERSONS OF THE SAME SEX; THERE IS NO SUMMARY JUDGMENT EVIDENCE THAT APPELLANT WAS MALE AT THE TIME OF HER CEREMONIAL MARRIAGE TO THE DECEASED.

The Appellee's summary judgment evidence establishes one fact; Christie Lee Littleton was born anatomically male. From this one fact, the trial court leaped to the legal conclusions that: (1) Christie Lee Littleton and decedent entered into a same-sex marriage; (2) as such their marriage was void from the inception; (3) consequently Christie Lee Littleton could not be a surviving "spouse"; (4) as a result, she did not belong to the class of persons entitled to bring an action under the Wrongful Death Act; and (5) likewise she lacked standing as an heir to bring a claim under the Survival Statute. This argument must fail because to carry his burden, Appellee must prove, as a matter of law, that Christie Lee Littleton was a man at the time she married her husband. This he has not done.

The only summary judgment evidence submitted by Appellee is a Birth Certificate and a deposition excerpt. [APP. Ex. "D" & "E"] The fact that Christie Lee Littleton was born a male does not, in and of itself, establish as a matter of law that the marriage at issue was between persons of the same sex. While a birth certificate is some evidence of the facts recited therein, it is not conclusive. For example, in paternity cases, a birth certificate is some evidence, but not conclusive evidence of fatherhood. See Murdock v. Murdock, 811 S.W. 2d 557, 558 (Tex. 1991). It is merely one piece of evidence to be weighed with all the rest in a fact finder's evaluation. See Jasso v. Robertson, 771 S.W. 2d 231, 233-34 (Tex. App. Houston [1st Dist.] 1989, orig. proceeding).

Furthermore, a birth certificate can be changed as established by Appellant's summary judgment evidence. [APP. Ex. "F" & "G"] The fact that Texas has a process by which a person's sex can be changed on a birth certificate to reflect the person's correct sex undermines the evidentiary value of Appellee's summary judgment proof. [2] See, Tex. Health & Safety Code 191.028, 192.011.

Appellant has presented conclusive summary judgment evidence that she was a woman at the time that her marriage took place. In her Affidavit, she establishes that shee has no male sexual organs; that she has functional female sexual organs; and that she was legally married in Kentucky, to Jonathon Mark Littleton after her sex reassignment surgery. [APP. Ex. "H"]

Moreover, Affidavits of two medical experts -- a Board Certified Plastic Surgeon and a Board Certified Psychiatrist -- establish that approximately ten (10) years prior to the date of marriage, Christie Lee Littleton underwent successful sex reassignment surgery that, in their medical opinion, resulted in her being classified as a member of the female sex. [APP. Ex. "I" & "J"]

Christie Lee Littleton admits being born male, but for Appellee to prevail on summary judgment, he must establish beyond cavil that she was a man at the time of her marriage. Nixon v. Mr. Property Management Co., 690 S.W. 2d 546, 548-49 (Tex. 1985).

SUB ISSUE TWO

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT WAS MALE AT THE TIME OF HERE CEREMONIAL MARRIAGE TO THE DECEASED; SEX AT BIRTH IS NOT THE TEST FOR DETERMINING THE SEX OF A TRUE POST-OPERATIVE TRANSSEXUAL FOR PURPOSES OF MARRIAGE.

Out of the numerous cases and legal commentaries dealing with various aspects of transsexualism, Appellant is aware of just three reported decisions (only one from the United States) involving the validity of a marriage between a true post-operative transsexual and a male person. See Swartz, L. H., M.L.L., N.R. (1997) Updated Look at Legal Responses to Transsexualism: Especially Three Marriage Cases in U.K., U.S. and New Zealand, IJT 1,2 [APP. Ex. "K"]

In M.T. v. J. T., 140 N.J. Super. 77, 35 A. 2d 204 (App. Div.), cert. denied, 71 N.J. 345, 364 A. 2d 1076 (1976), [APP. Ex. "L"] the defendant's basic and continuing contention was that the marriage between another male and the plaintiff was a mullity because plaintiff was a male at the time of ceremony, Id. at 83, 207. The court accepted as a fundamental premise that a lawful marriage requires the performance of a ceremonial marriage of two persons of the opposite sex, a male and a female. Id. This lead to the pivotal issue: whether the marriage between a male and a post-operative transsexual, who has surgically changed her external sexual anatomy from male to female, is to be regarded as a lawful marriage between a man and a woman. Id. at 85, 208.

The M.T. court examined the English case of Corbett v. Corbett, 2 W.L.R. 1306, 2 All E.R. 33 (P.D.A. 1970), wherein it was held that the transsexual had failed to proe that she had changed her sex from male to female. Id. The Corbett court subscribed to the opinion of the medical witnesses "that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent's operation, therefore, cannot affect her true sex." Id. citing Corbett, 2 W.L.R. at 1323.

Judge Handler, now Justice Handler, [3] writing for a unanimous three judge panel in M.T. disagreed with the conclusion reached in Corbett -- that for the purposes of marriage, sex is somehow irrevocably cast at the moment of birth, and that for adjudging the capacity to enter marriage, sex in its biological sense should be the exclusive standard. Id. at 86, 209. While acknowledging that the biological/anatomical text is significant, justice Handler looked to the expert testimony in the record and reached a different conclusion: that "for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards." Id. at 87, 209.

In summary, Justice Handler stated:

"[It] has been established that an individual suffering from the condition of transsexualism is one with a disparity between his or her genitalia or anatomical sex and his or her gender, that is, the individual's strong and consistent emotional and psychological sense of sexual being. A transsexual in a proper case can be treated medically by certain supportive measures and through surgery to remove and replace existing genitalia with sex organs which will coincide with the person's gender. If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person's identification at least for purposes of marriage to the sex finally indicated."

"In this case the transsexual's gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, Plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here. In so ruling, we do no more than give legal effect to a Fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual's quest for inner peace and personal happiness, while in no way disserving any societal interest, principle of public order or precept of morality." Id. at 89-90, 210-211.

Admittedly, M.T. v. J.T. has its critics, See, In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E. 2d 828 (1987). [APP. Ex. "M"] In addition, some of the medical elements explicitly or impliedly relied on in M.T. have been theoretically challenged at certain levels. See, Swartz, supra, at page 9 & 10. Appellant, nevertheless, urges the Court to adopt the rationale of M.T. as the lest legal response to the issue at hand.

As stated by the trial court in M.T.: "if the psychological choice of a person is medically sound, not a mere whim, and irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from leading a normal life. Are we to look upon this person as an exhibit in a circus side show? What harm has said person done to society? The entire area of transsexualism is repugnant to the nature of many persons within our society. However, this should not govern the legal acceptance of a fact." M.T. at 83, 207.

SUB ISSUE THREE

APPELLEE DID NOT CARRY HIS SUMMARY JUDGMENT BURDEN OF PROVING, AS A MATTER OF LAW, THAT APPELLANT'S MARRIAGE IS VOID; THERE IS NO SUMMARY JUDGMENT EVIDENCE THAT REBUTS THE PRESUMPTION OF VALIDITY OF MARRIAGE.

The Family Code establishes the presumption that every marriage is presumed valid. Tex. Fam. Code 1.101. Section 1.101 states, Inter alia, that every marriage entered into in this state is presumed valid unless expressly made void by Chapter 6 [Suit for Dissolution of marriage]. Id. Chapter 6 of the family Code contains only two provisions making marriage void ab initio: consanguinity; and marriage during existence of a prior marriage. See Tex. Fam. Code 6.201, 6.202. Neither are present in this case.

Whereas case law posits there can be no presumption of marriage when thge relationship between the parties was illicit at its inception, [4] once again, Appellee has failed to produce summary judgment evidence that Appellant's marriage was illegal at the time it took place.

Even if there was evidence, the Family Code expressly provides that the validity of a marriage is not affected by any illegality that occurred in obtaining the marriage license. See Tex. Fam. Code 2.301.

A ceremonial marriage entered into in accordance with legal form will raise the presumption, or inference of its legality. Schacht v. Schacht, 435 S.W. 2d 197, 200 (Tex. Civ. App. Dallas 1968, no writ). One of the strongest presumptions of law is that a marriage, once being shown, is valid. Id. Once a marriage license and certificate are placed in evidence, all reasonable presumptions will be indulged in favor of validity of marriage. Black v. Shell Oil Co., 397 S.W. 2d 877, 881 (Tex. Civ. App. Texarkana 1965, writ ref'd n.r.e.). The presumption is, in itself, evidence and may even outweigh positive evidence to the contrary. Texas Employers' Insurance Association v. Elder, 282 S.W. 2d 371, 373 (Tex. 1955).

Appellee has not put forward a scintilla of evidence that would enable a court to declare a marriage void under Chapter 6 of the family Code. Equally important, there is no summary judgment evidence that establishes Appellant was a man at the time of her ceremonial marriage as to make the marriage illicit from the beginning. There is, however, summary judgment evidence that Appellant was ceremonially married to Jonathon Mark Littleton in accordance with legal form. This proof of a valid marriage has not been challenged by evidence rebutting the presumption of validity. As a result, Appellee has failed to carry his burden of showing, as a matter of law, that Appellant's marriage is void.

SUB ISSUE FOUR

THE SUMMARY JUDGMENT SHOULD BE REVERSED BECAUSE, AT THE VERY LEAST, APPELLANT PRODUCED SUMMARY JUDGMENT EVIDENCE RAISING A GENUINE ISSUE OF MATERIAL FACT THAT PRECLUDES SUMMARY JUDGMENT.

The principle question for determination is the legal status of Appellant -- is she a surviving "spouse" for purposes of the Wrongful Death Act and Survival Statute? This necessarily requires an inquiry into the validity of her marriage, which in turn requires a resolution of whether she was a man or woman at the time of her marriage. The last question, what was Appellant's sex at the time of marriage, is a contested issue the answer to which resolves whether or not Appellant is entitled to beneficiary status; and thus determines the outcome of this litigation.

If the underlying facts are disputed, the question of legal status is usually a fact issue. Speer v. Presbyterian Children's Home and Serv. Agency, 847 S.W. 2d 227, 233 (Tex. 1993) (Gonzalez, J., concurring). Unless facts conclusively establish the status of the entity in question, the question is one of fact. Id. Similarly, if one of the elements necessary to establish a valid marriage is disputed, that element should be submitted to the jury. Dean v. Goldwire, 480 S.W. 2d 494, 496 (Tex. Civ. App. Waco 1972, writ ref'd n.r.e.) (In suit to have a marriage declared void on ground of a prior undissolved marriage, fact questions precluded summary judgment).

Appellant has the burden to prove she was the decedent's surviving spouse Sheperd, supra. Assuming arguendo, and without conceding, that Appellee established that Appellant cannot be a surviving spouse because she was a man when she married decedent, then in order to defeat summary judgment, Appellee must raise a genuine issue of material fact as to her sex, man or woman, at time of marriage. Gonzalez v. city of Harlingen, 814 S.W. 2d 109, 112 (Tex. App. Corpus Christi 1991, writ denied). Appellant had produced summary judgment evidence that she was psychologically, emotionally, socially, anatomically, sexually, and medically a woman when she married her husband. There is competent evidence that raises a genuine issue of material fact: was she a man or woman at time of marriage.

This court has stated that the determination of whether a person was a surviving spouse under the Wrongful Death Act should be left to the jury to decide. Fuentes v. TransAmerican Natural Gas Corp., 933 S.W. 2d 624, 627 (Tex. App. San Antonio 1996) (plaintiff alleging informal marriage), rev'd on other grounds, 962 S.W. 2d 28 (Tex. 1998). In another case involving the determination of beneficiary status under the Wrongful Death Act, the Texas Supreme Court stated: "If . . . at least some evidence of paternity is offered in a suit under the Wrongful Death Act, an illegitimate child is entitled to a chance to argue to the trier of fact that he is the child of the alleged father." Garza v. Maverick Mkt., Inc., 768 S.W. 2d 273, 276 (Tex. 1989).

Whether Appellant was (1) a genuine transsexual with a well defined medical condition (2) who successfully made the transition from male to female, and who (3) was capable of functioning at all levels as a woman, are underlying issues raised by the summary judgment evidence that have direct bearing on Appellant's sex classification at time of marriage.

Appellant by way of summary judgment evidence, has raised a genuine issue of material fact regarding her female sex at the time she married Jonathon Mark Littleton.

[Remainder of appeal filing is missing from the record at hand.]

ENDNOTES (footnotes in original)

[1] References to the Appendix are denoted in bold type brackets. References to the pages of the Appellate Record where the Appendix exhibit is located are noted in the index to the Appendix.

[2] It is interesting to note that the judge who signed the order granting Appellant's Petition to Amend Birth Certificate is the same judge who was affirmed in the case cited by Appellee in his Motion for Summary Judgment for the proposition that marriage licenses may not be issued for persons of the same sex, to wit the Hon. Peter Michael Curry. See Murphy v. State, 653 S.W. 2d 567 (Tex. App. San Antonio 1983, pet. ref'd).

[3] See Rutgers Council of AAUP Chapters v. Rutgers, The State University, 298 N.J. Super. 442, 455-689 A. 2d 828, 834 (1997).

[4] See, Drumond v. Benson, 133 S.W. 2d 154 (Tex. Civ. App. San Antonio 1939, writ ref'd), Walter v. Walter, 433 S.W. 2d 183 (Tex. Civ. App. Houston [1st Dist.] 1968, writ ref'd n.r.e.)


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