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construing the phrase “may order maintenance for an indefinite period” as allowing court to award maintenance “for any definite period up to an indefinite period”
Summary of this case from O'Carolan v. HopperOpinion
No. 01-04-01126-CV
Opinion issued April 20, 2006.
On Appeal from the 387th District Court, Fort Bend County, Texas, Trial Court Cause No. 03-CV-129,234.
Panel consists of Chief Justice RADACK and Justices JENNINGS and ALCALA.
MEMORANDUM OPINION
Appellant, Lynne Dawn Stewart, challenges the trial court's spousal maintenance award ordering appellee, Darrell Stewart, to pay $1,000 per month for twelve months to appellant. Appellant brings one issue for review: whether the trial court abused its discretion in limiting the duration of spousal maintenance to twelve months where the spousal maintenance was awarded because of an incapacitating physical disability. We affirm.
BACKGROUND
Appellant and appellee married on February 19, 1994, and separated on March 17, 2003. Appellant filed for divorce on April 1, 2003, and after a bench trial, the court signed a final divorce decree on September 7, 2004. In addition to dividing the marital property of the parties, the decree ordered appellee to pay spousal maintenance of $1,000 per month to appellant for twelve months, beginning September 1, 2004. The order was made specifically pursuant to section 8.054(b) of the Texas Family Code.
At the time of trial, section 8.054(b) stated
[i]f a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.057.
Act of June 14, 2001, 77th Leg., R.S., ch. 807, 2001 Tex. Gen. Laws 1574 (amended 2005) (current version at Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2005)). The current version does not differ substantially from the old version. It adds that spousal maintenance can be awarded when a spouse seeking maintenance is the custodian of a child of the marriage who has a mental or physical disability and clarifies when a disability "continues" for purposes of a court's periodic review. Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2005).
In 1989, prior to marriage, appellant was diagnosed with reflex sympathetic dystrophy ("RSD"), resulting from an on-the-job-injury. Appellant's RSD affects her central nervous system and causes severe, chronic pain in her neck, back, legs, and arms. Appellant's disability has continued throughout the marriage and is expected to persist permanently. She also suffers from chronic depression. Due to her condition, appellant receives monthly disability and long term disability benefits of $1,100 and $300 respectively, and at the age of 65, the $300 per month long term disability will cease and be replaced by $300 per month retirement benefits.
DISCUSSION
In appellant's sole issue for review, she contends the trial court abused its discretion in limiting the duration of spousal maintenance to a period of twelve months where the spousal maintenance was awarded because of an incapacitating physical disability. Specifically, appellant contends the trial court abused its discretion because (1) section 8.054(b) of the Texas Family Code directs a trial court to order spousal maintenance for an indefinite period as long as the disability continues and (2) the testimony adduced at trial established that appellant was permanently disabled.
We review the award of spousal maintenance under an abuse of discretion standard. Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex.App.-Houston [1st] 2005, pet. denied) (citing Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. denied)). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. However, a trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision or if reasonable minds could differ as to the result. Smith v. Smith, 115 S.W.3d 303, 305 (Tex.App.-Corpus Christi 2003, no pet.). Absent a clear abuse of discretion, an appellate court will not disturb the trial court's decision to award spousal maintenance. Id. at 306. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.
Here, appellant attacks only the factual sufficiency of the evidence, not the legal sufficiency. When reviewing the factual sufficiency of evidence, we examine all of the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dunn, 177 S.W.3d at 397 (citing Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.)).
Appellant first asserts that the trial court abused its discretion by failing to correctly apply section 8.054 of the Texas Family Code. Appellant contends that section 8.054 mandates that a trial court award spousal maintenance for an indefinite period once the disabled spouse establishes his or her disability. See Act of June 14, 2001, 77th Leg., R.S., ch. 807, 2001 Tex. Gen. Laws 1574 (amended 2005) (current version at Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2005)). We disagree.
At the time of trial, section 8.054 provided as follows:
[i]f a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.057.
Id. (emphasis added). The primary duty of any court in construing a statute is to effectuate the intent of the legislature. Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984). Legislative intent should be determined by examining the language used in the statute. Jones v. Del Andersen Assocs., 539 S.W.2d 348, 350 (Tex. 1976). Each statute should be read as if every word, phrase, and expression were chosen for a purpose. Neurobehavioral Assocs., P.A. v. Cypress Creek Hosp., Inc., 995 S.W.2d 326, 330 (Tex.App.-Houston [1st] 1999, no pet.).
The statute clearly states that the trial court "may" order maintenance for an indefinite period. Act of June 14, 2001, 77th Leg., R.S., ch. 807, 2001 Tex. Gen. Laws 1574 (amended 2005) (current version at Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2005)). The legislature has defined "may" as creating "discretionary authority or grant[ing] permission or a power." Tex. Gov't Code Ann. § 311.016(1) (Vernon 2005). If we were to adopt appellant's construction, this would nullify the inclusion of the word "may." Because we read each word in a statute as if it were chosen for a purpose, we disagree with appellant's construction of section 8.054 of the Texas Family Code. We construe "may order maintenance for an indefinite period" as allowing the trial court to award spousal maintenance for any definite period up to an indefinite period. See Smith, 115 S.W.3d at 309-10 (upholding an award of spousal maintenance to disabled husband for nine years). Section 8.054 provides the trial court with the discretion to determine the duration of spousal maintenance; thus, we conclude that the trial court did not incorrectly apply section 8.054 by failing to award spousal maintenance for an indefinite period.
This construction applies to Chapter 8 of the Texas Family Code. Tex. Gov't Code Ann. § 311.002 (Vernon 2005).
Appellant next contends that the trial court abused its discretion in failing to award spousal maintenance for an indefinite period of time because the testimony adduced at trial established that appellant was permanently disabled. Appellant contends that because the evidence demonstrates appellant is permanently disabled the trial court's order limiting spousal maintenance to twelve months is against the great weight and preponderance of the evidence.
The trial court's order specifically indicates that spousal maintenance was awarded pursuant to section 8.054(b) of the Texas Family Code. To award maintenance under section 8.054(b), the trial court must have found that appellant suffered from an incapacitating disability. See Act of June 14, 2001, 77th Leg., R.S., ch. 807, 2001 Tex. Gen. Laws 1574 (amended 2005) (current version at Tex. Fam. Code Ann. § 8.054(b) (Vernon Supp. 2005)). Appellant seeks to differentiate between an incapacitating physical disability and a permanent disability. Appellant apparently argues that her permanent disability requires indefinite spousal maintenance. We disagree. Spousal maintenance under section 8.054 is entirely within the discretion of the trial court, and section 8.054 does not require spousal maintenance in the event the requesting spouse is found permanently disabled. See id.
Appellant points to the following as evidence of her permanent incapacitating physical disability: (1) appellant's testimony that she was disabled from RSD, (2) the RSD affects her neck, back, legs, and arms, (3) she has difficulty walking, (4) she has difficulty sitting for long periods of time, (5) the psychologist testified that appellant's RSD and depression render her unemployable and permanently disabled because she cannot concentrate and suffers chronic pain, and (6) the medical reports indicate her disability will persist for her lifetime and will require continuing medical treatment.
In contrast, there was testimony from appellee that appellant engaged in all sorts of everyday activities such as house cleaning, working with horses, lawn mowing, and driving. A psychologist also testified that appellant is "not one of these stereotypical disabled patients who lives a . . . 'disabled lifestyle.'" Finally, appellant testified that she currently receives monthly disability and long term disability benefits of $1,100 and $300 respectively, and at the age of 65, the $300 per month long term disability will be replaced by $300 per month retirement benefits. Based on the evidence before the trial court and the statutory directive allowing the trial court to modify the spousal maintenance award under section 8.057 of the Texas Family Code, we conclude that the trial court's order limiting spousal maintenance to twelve months is not so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Dunn, 177 S.W.3d at 397; see Smith, 115 S.W.3d at 305 (stating that a trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision) . CONCLUSION
Accordingly, we affirm the judgment of the trial court.