On Monday August 16, 2010, the parties in the lawsuit Heather Delgado and Simona Longoria have filed against Nikki Araguz, will return to the district courthouse in Wharton, TX for a hearing on various motions both parties have filed. After considering motions on Monday, at some point, the judge hearing the lawsuit will also need to order the parties to make and file a plan for discovery, the evidence gathering process. It would appear that both parties have a lengthy evidence gathering process ahead of them. That process will likely include both parties requesting documents from the other, depositions of the parties and various witnesses, a possible medical examination of Nikki Araguz by one or more physician experts in the area of intersex conditions, including DNA testing, and other evidence gathering efforts. Once the parties have completed an adequate amount of evidence gathering it seems likely that both parties will file motions for Summary Judgment without trial, requesting that the court rule on various aspects of the lawsuit as a matter of law, given the legal arguments and evidence presented with the motions, and without trial. However, those motions are likely to be heard some months in the future.
As for Monday, the attorneys representing Nikki Araguz have filed a motion that requests the court remove Simona Longoria as a party to the lawsuit because she does not have legal standing to be a party. There is every likelihood that Nikki Araguz will get a favorable ruling from the judge on this motion. This is because legally, the actual parties at interest to the lawsuit as petition/plaintiff are Thomas Araguz's sons. However, because they are minors, only their guardian can serve as party instead for them in a lawsuit. Consequently Heather Delgado, the biological mother of Thomas Araguz's sons, is the only person in the present circumstance who can represent her sons, not their paternal grandmother.
|Nikki Araguz with security help leaving the courthouse July 23, 2010|
The attorneys representing Nikki Araguz have also filed a Defense Motion to Dismiss the lawsuit against her, based on the argument that the petitioners/plaintiffs do not have subject matter jurisdiction. What this means, is that because they contend a September 1, 2009 change in Texas statutory marriage law made Nikki's marriage to Thomas Araguz legal, there isn't any issue for the court to consider, because Heather Delgado and Simona Longoria don't have any legal basis for their lawsuit as a consequence. Although it doesn't seem likely that the court will grant this defense motion, it was an important procedural step for Nikki's attorneys, because its legal arguments will likely become part of the foundation for their nearly certain appeal case. It seems important for them to raise the issue early, rather than wait for a Summary Judgment Motion, so that they do not give any appearance of accepting the petitioner/plaintiffs' premise for their lawsuit. What is most important to understand is that this defense motion establishes a foundation on which a legal battle likely to last for years will be waged.
The last motion filed, but among the motions filed by the attorneys representing Nikki Araguz that will likely have the most immediate impact, is their motion to have the court release Thomas Araguz's $60,000 in retirement benefits to Nikki. This will likely occur because Thomas Araguz specifically designated in writing that Nikki Araguz should be the beneficiary of those funds in case of his death. He checked the "other" box on the pension policy to be clear that it didn't matter to him whether or not Texas courts considered him legally married to Nikki Araguz. The attorneys representing Simona Longoria and Heather Delgado have told newspapers they do not intend to oppose the motion, which probably makes that issue a done deal. However, since Nikki Araguz's attorneys have likely entered into a contingency fee contract with her, they will probably take nearly half the proceeds, in all likelihood leaving Nikki Araguz with just $30,000 from that fund. The Wharton Journal Spectator reported on this as follows:
Monday, August 2, 2010However, that $30,000 could make a big difference for Nikki Araguz because one of the things not reported on by the newspapers is the nature of Nikki's present living situation. There seems be some question about whether or not she presently has any permanent residence in Wharton, TX, and she has spent the last month without income. Because of the lawsuit, Nikki Araguz shutdown her local magazine business in anticipation that the negative press about her would make it nearly impossible for her to sell enough advertising to make a profit from future issues, or even get adequate distribution among local businesses. Few news reports have reflected on these practical and emotional ways in which all these events have impacted Nikki's circumstances. Their primary focus seems to have been making Nikki Araguz the subject of a virtual public pillory.
The third motion filed by Nikki Araguz’s attorney’s asks for the court to release the remaining $58,000 of the $60,000 she received as a benefit from the Texas Emergency Services Retirement System. Her attorneys said Araguz was a listed as the sole beneficiary by name as opposed to the payment being made to a surviving spouse.
In phone interviews, Ellis, Mann and Burwell all indicated they had no plans to oppose the motion.
(Updated information on the results of Monday's hearing is available in the following new post)