April 04, 2006

Westlaw, with the Rest of the Story

by PG

Some bloggers recently commemorated an anniversary -- not that of their blogs, but the wedding anniversary of Paul and Kathryn Hensler. The hand-drawn divorce petition of the former against the latter is a delightful reminder that at least one attorney was keeping it real. Mr. Hensler's allegations against his wife, though they first seemed harsh, struck me as more just once I looked up her maiden name, which popped several federal denials of certiorari (LaGrange v. Texas, Butler, Jones, Texas Department of Public Safety) in support of her "litigious nature." In Hensler v. Principi, a court refused Ms. Hensler's attempt to collect veterans' benefits after the death of Mr. Hensler (see below for the relevant portion). Ms. Hensler's claim of a common-law marriage even after the purported divorce was denied mainly because she had been in prison and thus not living with the deceased veteran, a basic requirement for recognition of such marriage in Texas.

Assuming that this is the same Kathryn P. Hensler of Hensler v. Hambrick, 983 F.2d 1066, she was convicted of violating 18 U.S.C.A. 876 (mailing threatening communications). "Subsequently, petitioner's attorney requested the trial court to conduct a hearing to determine whether petitioner was competent during the trial proceedings of December 4, 1991, and whether she was competent to proceed to sentencing. Additionally, petitioner, pro se, also moved to stay the criminal action pending a psychiatric examination... In her petition, petitioner claimed her constitutional rights pursuant to the First, Fourth, Fifth, Sixth, Eighth, Twelfth and Fourteenth Amendments were violated." I have thought about the 12th Amendment, but I had not contemplated its relevance for a criminal proceeding. Ms. Hensler represented herself again In re Kathryn Hensler (Oct. 18, 2000). Mr. Hensler had his own legal difficulties; Hensler v. District Four Grievance Committee of State Bar of Texas, 790 F.2d 390, was his attempt to prevent an investigation by the bar. "In January 1985 he moved his office and disconnected his telephone. As a result, various clients were not able to contact him and a number of grievances were filed against him. The grievance committee began its routine investigation into the allegations."

From Hensler v. Principi, 18 Vet.App. 301 (Apr. 08, 2003):

The appellant, Kathryn Hensler, appeals pro se an August 14, 2001, decision of the Board of Veterans' Appeals (Board) that determined that she was not eligible for VA death benefits as the surviving spouse of the veteran, Paul F. Hensler. Record (R.) at 8. The appellant filed an informal brief and the Secretary filed a motion for summary affirmance. In her informal brief, the appellant argues that her divorce from the veteran was invalid because it was obtained "behind her back," and that, subsequent to her divorce from the veteran, they had a common-law marriage under Texas law. Informal Br. at 1-2. Single-judge disposition is appropriate when, as here, the issue is of relative simplicity and the outcome is not reasonably debatable. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. 7252(a) and 7266. As explained below, the Secretary's motion will be granted and the Board decision will be affirmed.
I. FACTS
Mr. Hensler had active service in the U.S. Navy from April 1958 to September 1960. R. at 14. He married the appellant in March 1983 (R. at 87), and they were divorced in March 1993 (R. at 161). Mr. Hensler died on September 6, 1996. R. at 45. In November 1996, the appellant filed an application for dependency and indemnity compensation (DIC) or death pension, claiming to be the veteran's spouse. R. at 17-20. On that application, the appellant stated that she had married the veteran in 1983 and that their marriage continued until his death in 1996. R. at 17. In November 1996, a VA regional office (RO) denied her claim (R. at 62), and, in September 1997, the RO denied her subsequent claim for DIC benefits under 38 U.S.C. 1151 (R. at 35-36). The appellant subsequently filed a notice of disagreement (NOD). R. at 22-25.
In November 1998, the RO received a copy of the veteran's death certificate, which stated that he had died on September 6, 1996; that his marital status was "divorced"; and that listed under surviving spouse "[n]one." R. at 45. In December 1999, the appellant submitted several personal statements, several affidavits, and several letters purportedly written by the veteran to the appellant. R. at 69-101. Among these materials was the affidavit of Paul Rice, which stated:
I witnessed Mr. Hensler go to Waco to pick up Kathryn Hensler at the airport, where she was arriving from federal prison. And I witnessed her return and her staying for several days before he took her to the bus in Temple to go to a halfway house in San Antonio.... Paul often referred to Kathryn as "his wife" and he often expressed that she would return home as soon as she was able and that they would remarry, and they appeared to be living together as man and wife while she was there and represented themselves to the public as if still married. Kathryn also expressed the intent to return home once able and referred to Paul as her "husband".
**2 R. at 100-01.
In one August 1995 letter purportedly written to the appellant from the veteran while the appellant was in prison, the veteran said that if the appellant promised "no Friday night drinking (or otherwise), no fights, no involving me in the lawsuits, and the other things I deplored in that letter, write me about it, and I may reconsider what I said about not being a part of your life anymore." R. at 98. In another August 1995 letter, the veteran is purported to have written to the appellant that "if you want to stay with me after you get out, you have to behave because I am sick and cannot handle much stress." R. at 99. In an April 2001 VA regional office (RO) decision, it was determined that the appellant was not entitled to VA death benefits due to the death of the veteran because she was not recognized as the veteran's surviving spouse. R. at 170. She appealed to the Board. In its decision here on appeal, the Board determined that the appellant was not entitled to VA death benefits as the surviving spouse of the veteran. R. at 3. In making its decision, the Board stated the relevant Texas law regarding common-law marriage, and then stated, as to the appellant's evidence regarding any such common-law marriage: "In this case, other than the appellant's self-serving statements that she had an informal marriage with the veteran after their divorce, there is absolutely no other credible evidence of record in support of her claim.... Moreover, in May 1995 letters which the veteran purportedly wrote to the appellant, it is clear that they were not living together, as she was incarcerated at the time. The Board finds that these documents wholly vitiate any current, self-serving assertion that a common-law marriage existed between 1993 and 1996."

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