Affirmed and Memorandum Opinion filed July 3, 2018.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-17-00343-CV

             IN THE ESTATE OF FLOYD E. DIXON, DECEASED

                        On Appeal from Probate Court No. 4
                               Harris County, Texas
                         Trial Court Cause No. 377211-401

                  MEMORANDUM                           OPINION


       This is an appeal from the judgment rendered in a probate dispute between the
decedent Floyd E. Dixon’s eldest daughter Roslyne M. Dixon Kennedy Taylor and
Roslyne’s stepmother Addie Mae Dixon.1 Roslyne sought a judgment that all of the
real and personal property owned by Floyd or Addie on the date of Floyd’s death
was community property, and she asked the probate court to identify and distribute
all of it. After a non-jury trial at which no witness testified, the trial court rendered


       1
         Because some of the people we must discuss share the same last name, we will use each
person’s first name.
judgment that all of the personal property owned by Floyd or Addie on the date of
Floyd’s death was community property and all of the real property that either of them
acquired before marriage remained that person’s separate property. The trial court
did not identify or distribute any of the property and instead found that the evidence
was insufficient to do so.

      On appeal, Roslyne argues that the evidence admitted at trial was sufficient
for the trial court to identify all of the community personal property, and asks that
we render judgment ordering Addie or Addie’s estate to pay to each of Floyd’s other
heirs an amount equal to that heir’s proportionate share of the personal property’s
value as of the date of Floyd’s death. In her second issue, Roslyne asserts that Addie
has died and she asks that we award to Floyd’s other heirs their respective
proportionate shares of Floyd’s separate real property. We affirm.

                                    I. BACKGROUND

      Floyd E. Dixon had eight children from prior marriages before he married
Addie Mae Dixon in 1974. Two of Floyd’s children predeceased him. Of those two
children, one had no living children and the other was survived by two sons.

      Floyd’s death in July 2007 was followed by long-running litigation between
certain of his children and his widow. Because this case relies on evidence and
judgments from some of the earlier actions, we recount the relevant parts of earlier
litigation, so far as we can discern it.

A.    Dixon I

      A suit filed in the 55th District Court of Harris County concerned the
characterization of certain accounts, annuities, and certificates of deposit that Floyd
owned jointly with one or both of his daughters Roslyne and Cathy Gilmore, or that
he had established for the benefit of one or both of these two daughters. We will

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refer to that suit as “Dixon I.”2 Of that case, we know only the contents of the district
court’s combined Findings of Fact and Conclusions of Law and Final Judgment and
a few stipulations by Roslyne, Cathy, and Addie regarding two annuities at issue in
that case.

       Addie contended in Dixon I that financial accounts and instruments held by
her or Floyd on the date of his death were community property. According to the
findings and the judgment in that case, Roslyne and Cathy spent some of the money
held in these accounts and instruments after their father’s death and paid the
remainder into the registry of the court “along with other accounts held by various
stake holders.”3 The district court held that half of the funds held in the registry of
the court were community property to be disbursed to Addie, and the other half was
Roslyne and Cathy’s property, to be disbursed jointly to them. The trial court did
not state the amounts involved or identify the any of the accounts, annuities, or
certificates of deposit at issue.4

B.     Dixon II

       At some point, Roslyne attempted to probate a copy of Floyd’s will in Probate
Court No. 4 in Harris County. See In re Estate of Dixon, No. 14-12-01052-CV, 2014
WL 261020, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2014, pet. denied)
(mem. op.) (“Dixon II”).5            The probate court failed to find that Roslyne had
overcome the presumption that Floyd had revoked the original will, and we affirmed




       2
           Allstate Life Ins. Co. v. Dixon, Cause No. 2008-36412 (55th Dist. Ct., Harris Cty., Tex.).
       3
           Dixon I, Findings of Fact & Conclusions of Law & Final J. para. 3 (May 12, 2011).
       4
           See id.
       5
         Roslyne’s name was given as “Rosalyne” in Dixon II, but the judgment in Dixon I and
the records of this proceeding identify her as “Roslyne.”

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the trial court’s judgment. See id. Floyd therefore is considered to have died
intestate.

       Two-and-a-half years after we ruled in Dixon II, the probate court signed a
judgment declaring heirship. Addie retained her half-interest in community property
and was awarded a 1/3 life estate in Floyd’s separate real property. Floyd’s six
surviving children—Roslyne, Cathy, Bernadette E. Dixon, Floyd E. Dixon Jr.,
Sammie Charles Dixon, and Judy Carol Dixon Neal—each were awarded a 1/7th
share of Floyd’s half-interest in community property and a 1/7th interest in Floyd’s
separate real property. Floyd’s grandsons Michael and Donald Flake each were
awarded a 1/14th share in Floyd’s half-interest in community property and a 1/14th
interest in Floyd’s separate real property. The interests of Floyd’s descendants in
his separate real property was subject to Addie’s life estate in the property.

C.     Dixon III

       After the probate court rendered judgment declaring heirship, Roslyne
brought the current proceeding in the probate court. In her petition, Roslyne asked
the probate court to characterize as community or separate property (1) certain
personal property consisting of specified funds held on the date of Floyd’s death
among six bank accounts, three certificates of deposit, two annuity contracts, and
two life insurance policies; and (2) the four lots of real property that Addie acquired
before the marriage and the single lot of real property that Floyd acquired before the
marriage.     Roslyne maintained that all of the personal and real property was
community property, and she asked that the probate court identify and distribute the
property among Floyd’s heirs in the proportions stated in the judgment declaring
heirship.6

       6
         Addie filed a counterclaim against seeking reimbursements and offsets for the funds from
these sources that allegedly were withdrawn by Roslyne, Cathy, or Floyd Jr., but those claims were
                                                4
       At trial, Addie agreed that the personal property was community property,
excepting only the proceeds from the sale of stock she had received by devise from
her sister. She maintained, however, that the real property she and Floyd each
acquired prior to marriage remained that spouse’s respective separate property.

       The case was tried without a jury, and no witnesses testified.7 The evidence
consisted solely of four sets of Addie’s discovery responses, the deeds to the real
properties Addie acquired before her marriage to Floyd, a certified copy of the
Findings of Fact and Conclusions of Law and Final Judgment in Dixon I, and a
transcript of the trial in Dixon II.

       The probate court rendered judgment that all of the personal property held by
Floyd or Addie on the date of Floyd’s death was community property; however, the
probate court stated in the judgment and in its findings of fact and conclusions of
law that there was insufficient evidence to allow the trial court to determine whether
the personal property alleged (1) did in fact exist on the date of Floyd’s death;
(2) had been transferred pursuant to a pay-on-death provision, a beneficiary
designation, or joint tenancy with rights of survivorship; and (3) was subject to or
used to satisfy creditor claims. The probate court further held that that all real
property purchased by either spouse before the marriage remained that spouse’s
separate property under the inception-of-title rule.8 As with the personal property,
the real property was not identified in the judgment or distributed.


not tried. The trial court instead stated that Addie’s claims had to be asserted against Floyd’s
estate, and that no estate had ever been opened.
       7
         After calling Addie as a witness, Roslyne’s counsel reconsidered and asked no questions
of her. No other witness was called.
       8
         Under this rule, whether property is community or separate generally is determined by its
character at inception. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). A spouse’s separate
property includes property owned or claimed by the spouse before the marriage. TEX. FAM. CODE
ANN. § 3.001(1) (West 2006).

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      Roslyne presents two issue on appeal. In her first issue, she argues that the
evidence admitted at trial was “sufficient to establish the identification, location and
in whom the title to certain personal financial accounts was vested” on the date of
Floyd’s death. In her second issue she asserts that Addie has died, and she asks this
court to award Floyd’s separate real property to his descendants in the proportions
stated in the judgment of heirship.

             II. IDENTIFICATION OF, AND TITLE TO, PERSONAL PROPERTY

      Roslyne argues in her first issue that the trial court erred in failing to render
judgment against Addie for the amounts identified in certain of Addie’s amended
answers to interrogatories as being held on the date of Floyd’s death in or through
twenty identified bank accounts, checks, certificates of deposit, and annuity
contracts.    She contends that these discovery responses constituted sufficient
evidence for the trial court to identify the amount and location of these funds.
Roslyne further asserts that Addie’s attorney admitted that Addie spent all of the
funds. From this, she reasons that she and Floyd’s other heirs are entitled to
judgment against Addie in the amount of each such heir’s proportionate share of the
value of the accounts and instruments on the date of Floyd’s death. For several
reasons, we conclude that the record does not support these arguments.

A.    Absence of a Pleading for the Requested Relief

      First, Roslyne did not plead for judgment against Addie; she prayed that the
trial court (1) declare that, with the exception of property divided by the 55th District
Court, all property held by Addie or Floyd is community property; (2) identify all of
Addie’s and Floyd’s personal and real property “by legal description, account
number or other identifying label,” and (c) “distribute [the described property]
among the parties who have been found to be Mr. Floyd Dixon’s heirs as listed in
and in the proportions stated in the Judgment Declaring [H]eirship.” Roslyne did
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not plead that Addie be required to make up any difference between the current value
of any account, annuity, or certificate of deposit and its value on the date of Floyd’s
death.

B.       No Admission That Addie Spent All the Money

         Second, Addie’s counsel J.C. Loftis did not “admit[] that Addie spent all the
funds” as Roslyne represents. Loftis said to the trial court, “Most of the bank
accounts are no more. Banks don’t even have records of them. There’s nothing.
There’s no money in, there’s no money in these accounts.” That is not an admission
that Addie spent all of the funds in all of the bank accounts, much less that she
received and spent all of the funds held in the annuities and certificates of deposit.

         In making this representation, Roslyne may instead have had in mind
statements Loftis made when speaking specifically about Plus4 Credit Union. In
that context, Loftis said, “as it stands now, again, there’s no account. I don’t know
— well, [Addie] might have an account at Wells Fargo but, Judge, she’s had to spend
this money.” But that is not the only evidence regarding the account at Plus4 Credit
Union. Addie stated in one of her amended interrogatory answers that an account at
Plus4 Credit Union contained $4,133.65 on the date of Floyd’s death; however, the
evidence also contains ten checks totaling $4,277 that were written by Cathy after
Floyd’s death from a Plus4 Credit Union account in Floyd’s name. Because the
account numbers on the checks have been redacted, we cannot definitely ascertain
that the checks were written from the same account that Addie referred to in this
particular interrogatory answer; on the other hand, there is no evidence that there
was ever more than one account at Plus4 Credit Union.




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C.    Conflicting Evidence

      Third, Addie gave conflicting answers to nearly identical interrogatories
asking her to identify the amount and location of funds that she or Floyd possessed
on the date of his death. Although Roslyne refers only to Addie’s “amended
responses to interrogatories,” the evidence admitted at trial also includes Addie’s
responses to Roslyne’s “second set of interrogatories,” and Addie’s answers to
substantially the same questions differ.

      In Addie’s amended answers to interrogatories, Interrogatory No. 3 states,

      Please list all cash, bank account numbers, stock certificate numbers,
      bonds, annuity account numbers, the legal description and address of
      any real property, and funds which you and the Decedent, Floyd E.
      Dixon, held either jointly or severally on July 31, 2007, the date of the
      death of Decedent, Floyd E. Dixon. Do not list any asserts that were
      divided by the Order signed on May 12, 2011, by the 55th District Court
      of Harris County, Texas under cause number 200836412.
      Interrogatory No. 13 of the second set of interrogatories differs from this only
in that it (a) asks for the legal description of any real property but not its address;
(b) asks that Addie also identify any funds held for non-profit corporations, and
(c) adds the style of the case in the 55th District Court.

      In her amended answer to Interrogatory No. 3, Addie listed three certificates
of deposit, twelve checks written on an unidentified account at Plus4 Credit Union,
two annuity contracts with Chase Life and Annuity Co., one account at Chase Bank,
and two accounts at Wells Fargo Bank. In her answer to Interrogatory No. 13 of the
second set of interrogatories, Addie identified only two certificates of deposit,
unspecified checks written from a specific account at Plus4 Credit Union, no annuity
contracts with Chase Life and Annuity Co., two annuity contracts with Protective
Life Insurance Company having the same contract numbers as the Chase annuities,
two accounts at Chase Bank, and no accounts at Wells Fargo. The only accounts or

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instruments that Addie identified in both sets of interrogatories are (a) a Plus4 Credit
Union certificate of deposit ending in 0207, (b) a Plus4 Credit Union certificate of
deposit ending in 0208, (c) a Chase bank account ending in 7601, and (d) the two
annuities identified as having been issued by Chase Life and Annuity Co. or by
Protective Life Insurance Co.

         1.    The Certificates of Deposit

         Regarding the certificates of deposit, counsel for both parties represented at
trial that the certificates of deposit already had been divided by the 55th District
Court. Loftis stated that all of the certificates of deposit were interpleaded into the
55th District Court “except for the ones that were paid directly to Roslyne and her
sister.” Roslyne’s attorney Isaac Henderson added, “As it should have been because
they were the beneficiaries . . . .” The probate court asked if there were any
interpleaded funds left, and Loftis answered, “No. All that’s been divided. That was
divided back in the 55th district court.”

         2.    The Chase Bank Account

         As for the Chase bank account, there is evidence that this also was divided by
the 55th District Court. During the trial in which Roslyne attempted to probate a
copy of Floyd’s will, Roslyne testified that she and Cathy were the beneficiaries of
the Chase accounts and “that was done through the courts.” A transcript of that trial
testimony was admitted into evidence in this case. Roslyne’s testimony is some
evidence that the Chase accounts were among the assets divided by the 55th District
Court.

         3.    The Annuities

         Regarding the annuities, the material that the trial court judicially noticed
included a stipulation by Addie, Roslyne, and Cathy to the facts stated in Protective

                                             9
Life Insurance Company’s responses to Addie’s interrogatories in the 55th District
Court. In those responses, Protective Life explained that it purchased Chase Life
and Annuity Company, which merged into Protective Life; thus, the Protective Life
annuities are the former Chase annuities. Protective Life also explained that Roslyne
and Cathy were the beneficiaries of one annuity, and that Cathy was the sole
beneficiary of the other annuity. Finally, Protective Life stated that the annuities
already had been paid to the beneficiaries.

      4.     Conclusion

      Given the absence of a pleading for a money judgment against Addie, the
conflict between Addie’s amended responses to one set of interrogatories and her
responses to the second set of interrogatories, the representations that most of the
accounts no longer exist, and the uncertainty as to which assets were divided in the
55th District Court, the trial court did not reversibly err in failing to (a) render
judgment against Addie and in favor of Floyd’s descendants in an amount equal to
each descendant’s proportionate share of the value of the personal community
property at issue as of the date of Floyd’s death, or (b) identify and order distribution
of community personal property as it existed at the time of trial. We overrule
Roslyne’s first issue.

                   III. CHARACTERIZATION OF REAL PROPERTY

      In her second issue, Roslyne states that Addie has died and asks us to award
to Floyd’s remaining heirs their respective proportional shares of his separate real
property. The record does not support this request for relief.

      There is no evidence before us that Addie has died. Addie was living at the
time of trial, and had a vested life estate in one-third of Floyd’s separate real
property. See TEX. EST. CODE ANN. § 101.001(c) (West 2014) (with exceptions


                                           10
inapplicable here, an intestate decedent’s estate “vests immediately in the person’s
heirs at law”); id. § 201.002(b) (where intestate decedent has descendants who are
not surviving spouse’s descendants, surviving spouse has a life estate in one-third of
decedent’s separate real property, with remainder descending to decedent’s
descendants). The trial court was never asked to award all of the interests in Floyd’s
separate real property to fewer than all of Floyd’s heirs, and given the state of the
record, we decline to do so in the first instance.

      Roslyne’s request on appeal also arguably requires us to decide questions of
credibility differently than the trial court has decided them. On this record, all we
know of Floyd’s ownership of real property are the representations of interested
parties and their counsel, but the trial court was unwilling to rule on that basis and
instead insisted that Floyd’s deed to any real property be produced. We cannot fault
this approach.    We already have seen that Addie’s answers to interrogatories
conflicted with each other and with the representations of counsel.          But the
representations of counsel about producing Floyd’s deed also were not borne out. In
particular, the trial court asked Addie’s counsel if he had the deed to Floyd’s
property, and Loftis answered, “I can get it, it’s just a matter of going downstairs.”
The probate court later stated again, “We need to get that deed,” and this time,
Roslyne’s counsel responded, “Okay. We’ll get that deed.” Although each side’s
counsel represented that it would obtain Floyd’s deed for the record, neither one did
so. On this record, we cannot say that the trial court reversibly erred in failing to
identify and award a specific tract of land to the litigants without ever having seen
documentation to support their representations that Floyd acquired that particular
real property before his marriage to Addie.

      We overrule Roslyne’s second issue.



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                               IV. CONCLUSION

      Having overruled each of Roslyne’s issues, we affirm the trial court’s
judgment.




                                     /s/    Tracy Christopher
                                            Justice



Panel consists of Justices Christopher, Donovan, and Brown.




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