in the Matter of J.A.D., a Juvenile ( 2000 )

In the Matter of J.A.D., a Juvenile

      IN THE

TENTH COURT OF APPEALS

No. 10-99-268-CV

IN THE MATTER OF J.A.D., A JUVENILE

From the County Court at Law

Coryell County, Texas

Trial Court # 1229

O P I N I O N

      The court below sitting as a juvenile court found that Appellant J.A.D. had engaged in delinquent conduct by committing the offense of arson and placed J.A.D. on probation for one year. See Tex. Fam. Code Ann. § 54.03(f) (Vernon Supp. 2000); Tex. Pen. Code Ann. § 28.02(a)(2)(A) (Vernon Supp. 2000). The State filed a motion to modify this disposition shortly before the expiration of the probationary term and later amended the motion to modify after the term had expired. The court heard the amended motion, modified the disposition, and committed J.A.D. to the Texas Youth Commission without a determinate sentence. J.A.D. claims in a single issue that the court erred by proceeding on the amended motion to modify because it was filed after his probationary term expired.

BACKGROUND

      The court originally placed J.A.D. on probation on August 4, 1998. The State filed a motion to modify this disposition on August 3, 1999, one day before the probationary term expired. The motion to modify was set for hearing on August 9. The State filed a first amended motion to modify on August 5 and a motion for continuance on August 9. At the August 9 hearing, the court denied the State’s motion for continuance because the State failed to exercise due diligence in securing the attendance of the witnesses on whose absence the State premised the need for a continuance.

      J.A.D. argued that the State’s first amended motion to modify was untimely because it had been filed less than seven days before trial without leave of court. The court agreed, struck the amended motion, and directed the State to proceed on the original motion. The court then determined, however, that J.A.D. had never been personally served with a copy of the original motion to modify. Accordingly, the court postponed the matter for sixteen days.

      The State filed a second amended motion to modify on August 11. J.A.D. filed a motion to dismiss this motion because it was filed after the expiration of his probationary term. At the beginning of the August 25 hearing, the court heard J.A.D.’s motion. The court denied the motion because it considered the amended motion to relate back to the time the original motion was filed under the Rules of Civil Procedure and because J.A.D. did not claim that he had insufficient time to prepare his defense to the amended motion.

APPLICABLE LAW

      We review a court’s decision to modify a juvenile disposition under an abuse-of-discretion standard. See In re M.A.L., 995 S.W.2d 322, 324 (Tex. App.—Waco 1999, no pet.); In re Cockrell, 493 S.W.2d 620, 627 (Tex. Civ. App.—Amarillo 1973, writ ref’d n.r.e.). According to section 54.05(a) of the Family Code, a court may modify a juvenile disposition, other than a commitment to the Texas Youth Commission, until the child becomes eighteen years old or “is earlier discharged by the court or operation of law.” Tex. Fam. Code Ann. § 54.05(a) (Vernon Supp. 2000).

      The Code of Criminal Procedure contains similar provisions for the modification or revocation of an adult criminal defendant’s community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 21, 22, 23 (Vernon Supp. 2000). For this reason, appellate courts reviewing the modification of juvenile dispositions have looked to adult revocation cases for guidance in determining the appropriate procedures to be followed in juvenile cases. See, e.g., In re R.G., 687 S.W.2d 774, 776-77 (Tex. App.—Amarillo 1985, no writ); Franks v. State, 498 S.W.2d 516, 518 (Tex. Civ. App.—Texarkana 1973, no writ); see also In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In re D.I.B., 988 S.W.2d 753 (Tex. 1999).

      In R.G., the Amarillo Court of Appeals applied precedent from the Court of Criminal Appeals to determine whether a juvenile court can hear a motion to modify after the expiration of the probationary term. The Court held:

[W]hen a petition to modify disposition is filed within the probationary term for an alleged violation of the terms and conditions of probation which occurred within the probationary period, and the court proceeds to orderly disposition of that petition within a reasonable time with full regard for the procedural and substantive rights of the child, the court has authority to modify the prior disposition order even though the modification occurs after the termination date specified by the prior order.

R.G., 687 S.W.2d at 777. The Court relied on Bobo v. State to reach this conclusion. See id. at 776 (citing Bobo v. State, 479 S.W.2d 947, 949 (Tex. Crim. App. 1972)).

      The Court of Criminal Appeals first enunciated the rule applied in Bobo in the case of Ex parte Fennell. See Bobo, 479 S.W.2d at 949 (citing Ex parte Fennell, 162 Tex. Crim. 286, 288, 284 S.W.2d 727, 728-29 (1955)). In Fennell, the Court established the principle that a hearing on a timely-filed revocation motion may be conducted after the expiration of the probationary term if the hearing is not “unduly delayed.” Fennell, 162 Tex. Crim. at 288, 284 S.W.2d at 728-29 (quoting State ex rel. Lee v. Coker, 80 So. 2d 462, 463 (Fla. 1955)). This principle has come to be known as the “due diligence” requirement. See Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). Thus, the State must use “due diligence in executing the capias that results from the motion to revoke,” and the trial court must use “due diligence in hearing and determining the allegations in the revocation motion.” Id.

      In these due diligence cases, the Court of Criminal Appeals has also determined that the State may not amend a timely-filed revocation motion after the probationary term has expired. See Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976); accord Holtzman v. State, 866 S.W.2d 728, 729 n.2 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Crockett v. State, 840 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1992, no pet.); Chreene v. State, 691 S.W.2d 748, 750 (Tex. App.—Texarkana 1985, pet. ref’d). The Court described an amended revocation motion filed after the expiration of the probationary term as “a nullity.” Guillot, 543 S.W.2d at 653. The appellate courts in the more recent decisions cited above referred to such pleadings as “void.” See Holtzman, 866 S.W.2d at 729 n.2; Crockett, 840 S.W.2d at 162; Chreene, 691 S.W.2d at 750.

      In Guillot, the State timely filed a revocation motion alleging in part that the defendant had violated the conditions of his probation by being in possession of cocaine. Id. at 651. The State filed an amended motion after the probationary term had expired, altering the allegation to allege possession of heroin. Id. at 651-52. The Court held that the trial court could revoke only upon proof of one of the violations alleged in the timely-filed motion. Id. at 653. Because the defendant pled true to one of the allegations contained in the original revocation motion, the Court affirmed the judgment. Id.; accord Chreene, 691 S.W.2d at 750.

      In J.A.D.’s case, the court relied on the rule in civil cases that under certain circumstances an amended petition will be deemed to relate back to the date of the original petition for limitations purposes. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990); Cooke v. Maxam Tool & Supply, Inc., 854 S.W.2d 136, 141 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997). Section 51.17(a) of the Family Code provides that the Rules of Civil Procedure generally govern juvenile proceedings except on the burden of proof or when in conflict with the provisions of the Juvenile Justice Code. Tex. Fam. Code Ann. § 51.17(a) (Vernon Supp. 2000); see also D.I.B., 988 S.W.2d at 756. The Austin Court of Appeals has described such proceedings in this manner:

Juvenile delinquency proceedings are both civil and criminal in nature. In light of the very real possibility of loss of liberty faced by the juvenile respondent, juvenile proceedings have been characterized as “quasi-criminal,” with procedural requirements similar to those in adult prosecutions.

In re S.L.L., 906 S.W.2d 190, 192 (Tex. App.—Austin 1995, no writ); accord In re M.R., 846 S.W.2d 97, 100-01 (Tex. App.—Fort Worth 1992), writ denied per curiam, 858 S.W.2d 365 (Tex. 1993).

      Because of the “quasi-criminal” nature of juvenile proceedings and because permitting amendments to motions to modify after the expiration of the probationary term would conflict with section 54.05(a) of the Family Code, which permits modification only during the term of probation, we hold that the civil rule that amended pleadings can relate back to the date of the original pleading for limitations purposes does not apply to motions to modify a juvenile disposition which are filed after the expiration of the probationary term.

APPLICATION

      The State filed its second amended motion to modify J.A.D.’s disposition after the expiration of his probationary term. Therefore, the second amended motion is “a nullity” and the court had no authority to act upon it. Guillot, 543 S.W.2d at 653; accord Holtzman, 866 S.W.2d at 729 n.2; Crockett, 840 S.W.2d at 162; Chreene, 691 S.W.2d at 750. Nevertheless, the court’s error in acting upon the untimely motion could be harmless if the court found that J.A.D. committed one of the violations alleged in the original motion and if the evidence supports such a finding. See Guillot, 543 S.W.2d at 653; Chreene, 691 S.W.2d at 750. However, the State has never served the original motion to modify on J.A.D. Thus, the allegations of this motion cannot serve as a basis for affirmance of the judgment. See Tex. R. Civ. P. 21 (any motion requesting an order must first be served on opposing party); see also D.I.B., 988 S.W.2d at 756. Accordingly, we sustain J.A.D.’s sole issue.

      We reverse the judgment and remand this cause for further proceedings consistent with this opinion.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

      (Chief Justice Davis dissenting)

Reversed and remanded

Opinion delivered and filed October 4, 2000

Publish  

g a second opinion from Ruth Korb, the head teller, Prather returned the check to the woman, whom she identified as Terri.

          Ruth Korb testified that she compared Jimmy's signature on the signature card to that on the check and determined that "it was not the same signature." Korb advised Prather not to cash the check.

Kirk Goodman

          Kirk Goodman, Jimmy's thirty-one-year-old son, testified about the existence of his father's will. In late 1992 or early 1993, Kirk and Jimmy were working at the shop when Jimmy said, "Come here, I want to show you something; something I need to tell you." Jimmy pulled a folder containing a will from the second drawer of the filing cabinet. He handed the folder to Kirk, who was "kind of unnerved" and could not look at it. Jimmy explained that Kirk was to be the executor of the will and that he and Courtney were the heirs. Jimmy told Kirk that "in the event of his death," the will would be in the filing cabinet.

          Kirk testified that his father's filing cabinet was "full of paperwork from top to bottom" with insurance papers, tax returns, business records, and cattle records. After Jimmy's death, Kirk said the drawers had been "rifled through." "[Q]uite a bit of the information and stuff was missing. Drawers [were] half full and there was one that was completely emptied, and there was one on the bottom that was pretty empty."

jackie kyle

          Jackie Kyle, Jimmy's brother-in-law, testified that he had known Jimmy since he was seven years old. Jimmy told Kyle that he had a will, that the will was kept in the filing cabinet, and that it "left his stuff . . . to the children and Kirk would administrate." Kyle had the impression that Jimmy had written the will himself. He said Jimmy first mentioned the will in 1992, and that they discussed it again in 1993 or 1994.

          Kyle learned of Jimmy's heart attack around 2 a.m. Saturday morning. He and his wife drove to the hospital, but Jimmy was dead by the time they arrived. Kyle returned home and "got in touch with [Jimmy's] kids." Around 7:30 a.m., Kyle was getting gasoline when he saw Terri and her cousin Kelly drive by in Kelly's car. The car stopped at Jimmy's shop and backed up to the door. Kyle drove to the shop where he saw Terri, Kelly, and a woman named Millie. Terri was in the shop office removing files from the filing cabinet. Kyle saw two guns—one of Jimmy's and one of Kirk's—in the trunk of the car. Kyle testified, "Well, I just told everybody there that I felt like they ought to wait until the kids got there. The kids were on their way." The women did not stop. Kyle was "upset" and left as Jimmy's mother and sister arrived.

melva scott

          Melva Scott, Jimmy's sister, testified that she and her mother saw Terri at the shop around 8 a.m. the morning of Jimmy's death. Terri told Melva that Jimmy had asked her to "go through his records and straighten them out" and that she was looking for the insurance policy for the funeral home.

ray mahan

          Ray Mahan, an insurance salesman and auctioneer, testified that he had looked at all of Jimmy's tools and had given Courtney a figure for the estate's inventory, but could not remember the exact figure. He testified that the cattle, if sold to raise cash, were worth approximately $8,300.

travis sanders

          Travis Sanders testified that he paid Jimmy $579 in cash around noon on the Friday before his death.

elsa goodman

          Elsa Goodman testified that she divorced Jimmy after twenty-eight years of marriage because of his drinking. She stated that they maintained a "very civil" relationship after the divorce and that he was an excellent father. After the divorce, Jimmy told her that he had written a will dividing his property between the children and naming Kirk as executor. She said that he kept it in the shop filing cabinet with his other papers, but that she had never seen it.

          Elsa testified that she was a school teacher, that while they were married she made more money than Jimmy did, and that their joint income for 1991 was just under $30,000. She stated that Jimmy's income from the shop was usually $16,000 to $17,000, but that he usually lost $9,000 to $10,000 on the cattle for a net income of $6,000 to $7,000 a year.

doyle higgins

          Doyle Higgins, a sheet metal fabricator whose shop was across the street from Jimmy's, testified that he and Jimmy were "like brothers." He spoke with Jimmy almost every day for eighteen years. Higgins said he had made his own will in the 1960's and that he had "needled" Jimmy a dozen times over the years to make a will. After Jimmy's divorce, Higgins told him that "it would behoove him to make a Will out." Jimmy told Higgins "about a year ago" that he had made a will and had put it in his filing cabinet. Jimmy told him that he had "left everything to the kids" but did not say anything about an executor.

           Higgins stated that, after their marriage, Jimmy and Terri had made an offer on a house in Blum. Jimmy was concerned about how they would pay for it. Jimmy told Higgins that Terri "had offered to sell her place, but [Jimmy] didn't want to do that. . .[because] that was hers and her kids."

bill mcalister

          Bill McAlister testified that six or seven years ago he had sold Jimmy the forty-eight acres of land for cattle grazing. Jimmy bought the property for $50,000, paying $500 a month. McAlister stated that occasionally Jimmy had gotten behind in his payments, but would catch up. At the time of his death, however, Jimmy was four months behind—further than he had ever been.

jim david fox

          Jim David Fox testified that he knew Jimmy through his business. He had known Terri since the late 1960's when she and her first husband lived next door to Fox in Grand Prairie. Fox also knew two of Terri's later husbands. He testified that Terri told him she was making pornographic movies and modeling in Houston. Fox learned of Terri's marriage to Jimmy the night before his death, and when he learned of Jimmy's death, called the sheriff's department and Jimmy's mother to suggest that an autopsy be performed. Fox denied that he was testifying against Terri because she had refused his sexual advances.

courtney goodman

          Courtney Goodman, Jimmy's twenty-eight-year-old daughter, testified that her father kept his will in the filing cabinet. She had not seen the will, but her father had told her that it left everything to her and Kirk and that Kirk was the executor.

          Courtney first went to Jimmy's shop on the Sunday after his death. She testified that several items were missing: cattle records; insurance and personal papers; "current billings, the people who he had done work for that owed him money"; guns; and his "money sack." On Monday morning, Courtney discovered that Terri had tried to cash a check on her father's account. On Tuesday evening, after the funeral, the wrecker disappeared from the shop. Courtney called friends who helped her board up the shop and move the remaining contents to another location. The following morning, Courtney applied for and was appointed temporary administratrix of her father's estate.

          Acting as temporary administratrix, Courtney found that her father had four accounts at Rio Vista Bank. One account was a savings account for his granddaughter Lacey. One account had $13, a savings account had $1,100, and his business account—on which Terri had attempted to cash the $600 check—had a balance of $683. She testified that there was no deposit reflecting the $580 cash payment Travis Sanders had made to Jimmy the afternoon before his death. Courtney stated that her father's tax returns showed he had made $15,000 in 1991 and 1994 and that he usually lost money on his cattle operation. Courtney estimated the value of Jimmy's entire estate at $61,000.

kelly herring

          Kelly Herring testified that she is Terri's second cousin and had lived in Blum for five years. She testified that Terri met Jimmy the last week of May 1995 when Jimmy was working on Kelly's car. Terri drove Kelly to pick up the car at Jimmy's shop, and Terri and Jimmy "hit it off." Kelly said their relationship was "like magic" and that "they were crazy about each other." From their first date on June 2, Jimmy began staying with Terri at Kelly's house. Kelly testified that Jimmy gave Terri his truck during their courtship.

          Kelly testified that she, Terri, her sister-in-law, and her brother-in-law went to Jimmy's shop early Saturday morning. When they arrived, there were papers on the floor and "everything looked like it had been ransacked." They loaded files, receipts, and empty gun cases into her car trunk. Kelly stated that two guns belonging to her son and grandson were in the trunk. She stated that Jackie Kyle "may have said" they should wait until Jimmy's children arrived, but they did not wait.

          Kelly testified that Terri had a lot at Echo Lake, but she did not know of any other real estate.

ORDER FOR WILL PRODUCTION & ORDER FOR APPOINTMENT

OF TEMPORARY ADMINISTRATRIX

(10-96-028-CV & 10-96-029-CV)

          The court made the following findings of fact:

The Court finds that James Arthur Goodman, hereafter referred to as Deceased, had a written will at the time of his death.

The Court finds that Teresa Louise Goodman had possession of the will of James Arthur Goodman and other papers at the time the sworn written complaint of Courtney Goodman and James Kirk Goodman, children of Deceased was filed.

The Court finds that Teresa Louise Goodman has not shown cause why she should not deliver the will of Deceased to the Court for probate or deliver other papers to the Temporary Administratrix.

The court made the following conclusion of law:

The Court should order Teresa Louise Goodman to deliver the Will of James Arthur Goodman by November 2, 1995, as the Court is satisfied that she had such papers or will at the time of the filing of the complaint in accordance with Probate Code Section 75, Duty and Liability of Custodian of Will.

points of error

          In point one in each of the two appeals, Terri challenges the legal sufficiency of the evidence to support the court's finding that Jimmy had a written will at the time of his death. In reviewing a "no evidence" point, we consider only the evidence and inferences tending to favor the finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id.

          Kirk testified that his father had a will, that his father handed him the folder with the will, but that he did not read it. Jackie Kyle testified that Jimmy told him he had a will, which Kyle believed Jimmy had written himself. Elsa Goodman testified that Jimmy had told her he had a will. Doyle Higgins testified that he had "needled" Jimmy about making a will and that Jimmy told him "about a year ago" that he had made a will. Kirk, Courtney, Elsa, Kyle, and Higgins testified that (1) Jimmy said the will left his property to Kirk and Courtney and (2) the will was kept in the shop filing cabinet.

          Viewing the evidence in the light most favorable to the finding and disregarding evidence and inferences to the contrary, we find there is probative evidence to support the court's finding that a will existed. Id. We overrule points one.

          Terri's second point in these appeals challenges the factual sufficiency of the evidence to support the court's finding that Jimmy had a written will at the time of his death. A court's findings of facts are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We must weigh all of the evidence, and we overturn the finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

          In conducting such a review, we give deference to the court's determination of the witnesses' credibility and the weight to be given their testimony. Slusher v. Streater, 896 S.W.2d 239, 243 (Tex. App.—Houston [1st Dist.] 1995, no writ). The court, as the trier of fact regarding conflicting evidence, may believe one witness and disbelieve others, and it may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

          Based on all of the evidence in the record, much of which we have recited, we cannot say that the court's determination that Jimmy left a will is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. We overrule points two.

          Having determined there was sufficient evidence that the will existed, we turn to the question of Terri's possession of it. In points three and four, Terri challenges the legal and factual sufficiency of the evidence to support the court's finding that she had possession of the will at the time the motion to compel production was filed.

          We first view the evidence in the light most favorable to the finding and disregard evidence and inferences to the contrary. Browning-Ferris, 865 S.W.2d at 928. Terri does not dispute that she removed paperwork from the shop filing cabinet on the morning of Jimmy's death. Melva Scott saw Terri at the shop around 8 a.m. Terri told her that Jimmy had asked her to "go through his records and straighten them out" and that she was looking for the insurance policy for the funeral home. Jackie Kyle saw Terri going through files from the filing cabinet. Courtney testified that records and personal papers were missing from the shop on Sunday. Kirk testified that his father's filing cabinet had been "full . . . from top to bottom," but that he found the files "rifled through" with drawers either empty or half-empty.

          Given the testimony that the will was located in the filing cabinet prior to Jimmy's death and its absence after Terri removed papers from the shop, we find probative evidence to support the court's finding. Id. We overrule point three in each appeal.

          Looking at all of the evidence that bears on the question of possession, we next look to whether the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176. Again, we must acknowledge that the court had the discretion to believe one witness over another and to resolve any conflicts in the testimony. McGalliard, 722 S.W.2d at 697. Inferences may support a judgment so long as they are reasonable in light of all of the evidence. Ortiz, 917 S.W.2d at 772.

          It is undisputed that Terri removed files from the filing cabinet in which several witnesses testified Jimmy kept his will. However, Terri denied that she had the will, stating that "there was absolutely no Will in my possession ever at any point." Her cousin Kelly testified that they removed files, but stated that the shop had looked "ransacked" when they arrived. This evidence, although contrary to the finding, is not in our view so great as to overwhelm the inference that Terri removed the will from the shop. Thus, we overrule point four in each of the two appeals.

ORDER DENYING FAMILY ALLOWANCE

(No. 10-96-030-CV)

          Section 286 of the Probate Code provides:

          § 286 Family Allowance to Surviving Spouses and Minors

(a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory, appraisement, and list of claims have been approved, the court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased.

(b) Before the approval of the inventory, appraisement, and list of claims, a surviving spouse or any person who is authorized to act on behalf of minor children of the deceased may apply to the court to have the court fix the family allowance by filing an application and a verified affidavit describing the amount necessary for the maintenance of the surviving spouse and minor children for one year after the date of the death of the decedent and describing the spouse's separate property and any property that minor children have in their own right. The applicant bears the burden of proof by a preponderance of the evidence at any hearing on the application. The court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased.

Tex. Prob. Code Ann. § 286 (Vernon Supp. 1996). Subsection (b) was added in 1993. Prior to that time, a family allowance was contemplated only as provided in subsection (a), i.e., after the inventory, appraisement, and list of claims had been court-approved.

          Other sections of the Probate Code also apply. Section 287 states that a family allowance is determined "with regard to the facts or circumstances then existing and those anticipated to exist during the first year" after the death. Id. § 287 (Vernon 1980). Section 288 provides that "no such allowance shall be made for the surviving spouse when the survivor has separate property adequate to the survivor's maintenance . . . ." Id. § 288 (Vernon 1980).

findings of fact & conclusions of law

          The court's order denying Terri's request for a family allowance states:

The court considered the application for family allowance filed by Teresa Louise Goodman. After consideration of facts and circumstances existing and anticipated to exist during the first year after the death of James Arthur Goodman, the Court found that the facts and circumstances to not support the necessity for a family allowance.

The court's applicable findings of fact state:

The Court finds that Teresa Louise Goodman and Deceased were married for ten (10) days and Deceased had no minor children and, after considering her separate property and other evidence, that Applicant did not show by preponderance of the evidence the necessary [sic] for her maintenance.

Teresa Goodman has adequate separate property for her maintenance during the year following James Arthur Goodman's death.

The court made the following conclusion of law:

Teresa Louise Goodman's application for family allowance should be denied because she failed to meet her burden of proof by a preponderance of the evidence on her application for family allowance.

points of error

          Terri appeals on five points, attacking the court's failure to set a family allowance and its finding that she had adequate separate property for her maintenance. Terri's application for a family allowance states that no inventory had been filed; thus, she bore the burden to prove the necessary facts by a preponderance of the evidence. Id. § 286(b).

          In points one and three, Terri asserts that she proved "as a matter of law": (a) the amount necessary for her maintenance and (b) that she did not have adequate separate property to maintain herself. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). We will address point three first.

          On such "matter-of-law" points, we must first examine the record for evidence that supports the negative finding, while ignoring all evidence to the contrary. See id.; Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). If we find evidence that supports the negative finding, the inquiry ends; but if we find no evidence to support the finding, then the entire record must be examined to determine if the contrary proposition is established as a matter of law. See Sterner, 767 S.W.2d at 690. If so, the point will be sustained.

          Under section 287, Terri had to show "the facts or circumstances then existing and those anticipated to exist during the first year" after Jimmy's death. Tex. Prob. Code Ann. § 287. Terri also bore the burden of proving she did not have adequate separate property for her maintenance. Id. § 288. Sections 286 and 287 have been construed to mean that "the widow's allowance must be made `with reference to the condition of the whole property [of the deceased's estate] during the first year of [his] death,' and with reference to the widow's necessities `measured by [her] condition in life, and by what [she] had been accustomed to have during the lifetime of the husband.'" Kennedy v. Draper, 575 S.W.2d 627, 629 (Tex. Civ. App.—Waco 1978, no writ) (citations omitted). Thus, the court was entitled to consider evidence of the condition of Jimmy's estate and Terri's necessities measured by her condition in life, and by what she had been accustomed to during Jimmy's lifetime. Id.

          Terri's affidavit, attached to her application for family allowance, stated her monthly expenses to be approximately $5,450. She requested a family allowance of $60,000. The evidence viewed in light of the court's negative finding shows the "condition" of Jimmy's estate was that of a man whose net income was $6,000 to $7,000 a year and who was four months behind on his land payments. Terri's "widow's necessities"—measured by her "condition in life" and "what she had been accustomed to" during Jimmy's lifetime—were limited by the ten-day marriage. There were no minor children. Terri's cousin, Kelly, testified that Terri owned the Echo Lake property. Doyle Higgins testified that Jimmy said that Terri "had offered to sell her place" to finance a home in Blum, but that Jimmy didn't want to do that because that was "hers and her kids."

          Given the standard of review—under which all evidence contrary to the finding must be disregarded—we find some evidence of the existence of separate property adequate for Terri's maintenance. Sterner, 767 S.W.2d at 690. Thus, the court's failure to award Terri a family allowance is supported by legally-sufficient evidence. Id.; Tex. Prob. Code Ann. § 288. We overrule point three. Because section 288 precludes a family allowance, we do not reach point one.

          In points two and four, Terri asserts the court's determinations are "against the great weight and preponderance of the evidence." Thus, we sustain the court's "failure to find" unless, considering all the evidence, that finding is contrary to the great weight and preponderance of the evidence. Ames v. Ames, 776 S.W.2d 154, 158 (Tex. 1989), cert. denied, 494 U.S. 1080, 110 S. Ct. 1809, 108 L. Ed. 2d 939 (1990). Again, we address point four first.

          Terri testified to the life she hoped to have with Jimmy, including buying a house or double-wide trailer. She testified that she had no separate property and that she was "totally disabled." She estimated Jimmy's tools at $350,000 and his total estate at $600,000. She claimed Jimmy's 1992 truck as her separate property because it had been a gift from Jimmy.

          Except for Terri's assertions, the evidence was consistent that Jimmy made about $15,000 a year in his mechanic's shop and that he lost money on his cattle operation. He was behind on his land payments. Other evidence shows Jimmy's entire estate to be valued at approximately $60,000. Although Terri denied owning separate property, her cousin believed that she owned property. The deeds to the property and the testimony raise questions about whether creditors were evaded. According to Doyle Higgins, Terri had offered to "sell her place" to finance a home in Blum.

          Given these facts, we cannot say that the finding that Terri owned separate property adequate for her maintenance was against the great weight and preponderance of the evidence. Id. We overrule point four. As above, because the finding of adequate separate property precludes a family allowance, we do not reach point two.

          In her fifth point, Terri asserts that the court abused its discretion in "totally denying" her application for a family allowance. Because the estate's value is in dispute and inventories had not been filed, the parties went into the hearing "concerned that the Court [might] not have enough information to set a family allowance at this point." Having found sufficient evidence to support the court's failure to award a family allowance, we cannot say that the court acted without any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). We overrule point five.

          We affirm the orders of the probate court.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

Do not publish