Opinion
No. 05-09-00709-CV
Opinion issued June 22, 2010.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 76379-422.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION NUNC PRO TUNC
Michael Thayer Owen (Husband) appeals the trial court's final decree of divorce. In two issues, Husband claims the trial court abused its discretion in awarding spousal maintenance of $1000 per month for two years to Kimberly Ann Owen (Wife) and denying his motion for new trial. We affirm.
We will not reverse a trial court's award of spousal maintenance unless the trial court abused its discretion in making the award. Hipolito v. Hipolito, 200 S.W.3d 805, 806 (Tex. App.-Dallas 2006, pet. denied). A trial court abuses its discretion when it acts arbitrarily, unreasonably, without regard for guiding legal principles, or without supporting evidence. Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.-Dallas 2001, pet. denied). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error; however, they are relevant factors in assessing whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.-Dallas 1999, no pet.).
In a suit for the dissolution of a marriage lasting ten years or longer, the family code provides a trial court may order maintenance for a spouse who lacks sufficient property, including property distributed to the spouse under the code, to provide for the spouse's minimum reasonable needs. Tex. Fam. Code Ann. § 8.051 (Vernon 2006). Determining the spouse's minimum reasonable needs is a fact-specific determination done on a case-by-case basis. Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.-Dallas 2003, no pet.).
To qualify, the spouse seeking maintenance must be unable to support herself through appropriate employment because of an incapacitating physical or mental disability or clearly lack "earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054." Tex. Fam. Code Ann. § 8.051. As a general rule, there is a presumption that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking stable employment or developing the necessary skills to become self-supporting during the separation period and the time the suit for dissolution of the marriage is pending. Tex. Fam. Code Ann. § 8.053(a) (Vernon 2006). This presumption does not apply to a spouse unable to seek employment due to an incapacitating physical or mental disability. Id. § 8.053(b). The testimony of the injured party is sufficient to support a finding of incapacity even if directly contradicted by expert medical testimony. Pickens, 62 S.W.3d at 216.
At trial, Wife testified she was in a head-on car collision caused by a drunk driver in July 2004. Her knee was injured, requiring surgery. In addition, she sustained nerve damage to her left arm and has tendinitis in both hands. Wife has been disabled and, except for a job she had from May to July 2008, has been unable to work since the accident. She tried to return to the job she had before the accident but "could not do it." She attempted to file for disability but was told Husband made too much money. At the time of trial, she was working on refiling for disability and getting food stamps. Wife also said she did some babysitting. She admitted she had not submitted an employment application since November 2008. She said she was actively looking but that nobody was taking applications or hiring. Although Wife had published two books, the royalties she had received from the sales totaled "about $20 in the last seven years" and she was no longer receiving royalties. She had not been able to write since the accident. She also admitted she had graduated from heating and air-conditioning school in 1992.
Husband testified Wife had been "in and out of work" over the previous four to five years. According to Husband, she would start a job, then get tired of it and quit without another job to replace it. When asked to give a specific time frame on the jobs, Husband admitted he could not. Discussing the car accident, Husband said Wife had surgery on her knee and had some bruising but that she "was still able to get around." He conceded Wife was under a doctor's care but contended he did not know why. Husband believed Wife was exaggerating her physical condition.
The record also shows that although Wife was awarded the house and lot, the monthly mortgage payment for both totaled nearly $750, there was no equity in that property, and the property was likely to be in foreclosure soon. She also had a monthly truck payment. Wife had a roommate who paid $100 a month in rent and bought some groceries. In addition, Wife had applied for and believed she would be receiving approximately $200 each month in food stamps. She testified she had less than $1 in her bank account and her electricity had been turned off recently. Husband grossed about $5500 and had approximately $2300 in living expenses each month.
Although Husband contends the trial court abused its discretion in ordering spousal maintenance, the record shows Wife had no liquid assets, had no income, and had monthly debt of at least $750. Furthermore, Wife testified she was disabled. Although Husband believed she exaggerated her condition, there is nevertheless probative evidence to support the trial court's finding that Wife has an incapacitating disability. See Pickens, 62 S.W.3d at 216. In light of the record before us, we cannot conclude the trial court abused its discretion in awarding spousal maintenance.
In reaching this conclusion, we reject Husband's argument that the spousal maintenance should be abated due to cohabitation. In his brief, Husband states he has "personal knowledge" Wife and the roommate are involved in a romantic relationship. He does not cite us evidence in the appellate record supporting his assertions, and our review of the record likewise does not reveal any. Therefore, we overrule Husband's first issue. In light of our disposition of his first issue, we need not address Husband's second issue. See Tex. R. App. P. 47.1.
We affirm the trial court's judgment.