in the Matter of the Marriage of Yossef Elabd and Sonia Elabd and in the Interest of J.E., E.E. and S.E., Children ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00183-CV
IN THE MATTER OF THE MARRIAGE OF
YOSSEF ELABD AND SONIA ELABD
AND
IN THE INTEREST OF J.E., E.E. AND S.E., CHILDREN
From the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 17-000880-CVD-CCL2
OPINION
In three issues, appellant, Yossef Elabd, complains about the final divorce decree
signed by the trial court. Specifically, Yossef argues that: (1) the evidence is legally
insufficient to support the trial court’s determination that appellee, Sonia Elabd, is
entitled to spousal maintenance; (2) the trial court abused its discretion by awarding
Sonia $1,500 per month in spousal maintenance; and (3) the trial court abused its
discretion by making a disproportionate division of the community estate. Because we
overrule all of Yossef’s issues, we affirm.
I. SPOUSAL MAINTENANCE
In his first issue, Yossef complains that the spousal-maintenance award is not
supported by legally-sufficient evidence. Specifically, Yossef contends that because the
trial court made no findings concerning Sonia’s minimum reasonable needs, and because
no such findings can be implied from this record, Sonia was not entitled to spousal
maintenance. We disagree.
A. Applicable Law & Standard of Review
Spousal maintenance is an award of “periodic payments from the future income
of one spouse for the support of the other spouse.” TEX. FAM. CODE ANN. § 8.001(1) (West
2006). The purpose of spousal maintenance is “to provide temporary and rehabilitative
support for a spouse whose ability to self-support is lacking or has deteriorated over time
while engaged in homemaking activities and whose capital assets are insufficient to
provide support.” O’Carolan v. Hooper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no
pet.).
Section 8.051 of the Family Code governs a spouse’s eligibility for spousal
maintenance. See TEX. FAM. CODE ANN. § 8.051 (West Supp. 2018). As relevant to the
instant case, section, 8.051(2) provides that a spouse is eligible to receive spousal
maintenance if the spouse seeking maintenance:
(A) is unable to earn sufficient income to provide for the spouse’s minimum
reasonable needs because of an incapacitating physical or mental
disability;
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(B) has been married to the other spouse for 10 years or longer and lacks the
ability to earn sufficient income to provide for the spouse’s minimum
reasonable needs; or
(C) is the custodian of a child of the marriage of any age who requires
substantial care and personal supervision because of a physical or
mental disability that prevents the spouse from earning sufficient
income to provide for the spouse’s minimum reasonable needs.
Id. § 8.051(2). It is undisputed that subsection (B) is the sole provision of section 8.051(2)
that is at issue in this case. Id. § 8.051(2)(B).
There is a rebuttable presumption that maintenance under section 8.051(2)(B) is
not warranted unless the spouse seeking maintenance has exercised diligence in
developing the necessary skills to provide for the spouse’s minimum reasonable needs
during a period of separation and during the time the suit for dissolution of the marriage
is pending. Id. § 8.053(a)(2) (West Supp. 2018). The term “minimum reasonable needs”
is not statutorily defined. Slicker v. Slicker, 464 S.W.3d 850, 860 (Tex. App.—Dallas 2015,
no pet.) (citing Cooper v. Cooper, 176 S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004,
no pet.)). Rather, minimum reasonable needs is a fact-specific inquiry, which the courts
determine on an individualized, case-by-case basis. Id. (citing Amos v. Amos, 79 S.W.3d
747, 749 (Tex. App.—Corpus Christi 2002, no pet.)).
We review an award of spousal maintenance under an abuse-of-discretion
standard. Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably,
without regard to guiding legal principles, or without supporting evidence. Id. Under
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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. Id. Because of the overlap between the
abuse-of-discretion and sufficiency-of-the-evidence standards of review, we engage in a
two-step analysis to determine whether the trial court (1) had sufficient information on
which to exercise its discretion and (2) erred in its application of that discretion. Day v.
Day, 452 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). “In
determining the first prong, ‘[w]e apply the same standards when reviewing the legal
and factual sufficiency of the evidence supporting the trial court’s fact findings as we do
when reviewing the evidence supporting a jury’s answer to a special issue.’” Id. (quoting
Dunn, 177 S.W.3d at 396).
To prevail on a legal-sufficiency challenge on an issue for which the opposing
party had the burden of proof, the complaining party must show that there is no evidence
that would enable reasonable and fair-minded people to reach the verdict under review.
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing a legal-
sufficiency challenge, we consider all of the evidence supporting the judgment,
“credit[ing] favorable evidence if reasonable jurors could, and disregard[ing] contrary
evidence unless reasonable jurors could not.” Id. We consider the evidence in the light
most favorable to the findings and indulge every reasonable inference that would
support them. Id. at 822.
In the Matter of the Marriage of Elabd Page 4
B. Entitlement to Spousal Maintenance Under Section 8.051(2)(B)
As noted above, Yossef asserts that the spousal-maintenance award should be
reversed because the trial court did not make sufficient factual findings with regard to
Sonia’s “minimum reasonable needs” in its findings of fact, and because the award
cannot be supported by presumed findings under Texas Rule of Civil Procedure 299. See
TEX. R. CIV. P. 299. Rule 299 governs whether we may presume omitted findings of fact
to support a judgment. Id. Specifically, Rule 299 provides:
When findings of fact are filed by the trial court they shall form the basis of
the judgment upon all grounds of recovery and of defense embraced
therein. The judgment may not be supported on appeal by a presumed
finding upon any ground of recovery or defense, no element of which has
been included in the findings of fact; but when one or more elements thereof
have been found by the trial court, omitted unrequested elements, when
supported by evidence, will be supplied by presumption in support of the
judgment. Refusal of the court to make a finding requested shall be
reviewable on appeal.
Id. In other words, if a party secures an express finding on at least one element of a
ground of recovery or defense, then deemed findings may arise as to the balance of the
elements. See Howe v. Howe, 551 S.W.3d 236, 245 (Tex. App.—El Paso 2018, no pet.)
(citations omitted); see also Smith v. McDonald, No. 12-12-00165-CV, 2013 Tex. App. LEXIS
11769, at **12-13 (Tex. App.—Tyler Sept. 18, 2013, pet. denied) (mem. op. on reh’g).
In the instant case, the trial court considered numerous factors regarding Sonia’s
eligibility for spousal maintenance and made one specific fact finding—that Sonia earns
$76,000 per year working full time. Moreover, in its conclusions of law, the trial court
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determined that: “Good cause exists to order HUSBAND to pay Spousal Support to
WIFE in the amount of $1,500.00 per month beginning March 2018 and continuing
through May 2021.”
As shown above, the trial court concluded that spousal maintenance was
warranted and listed the facts and factors that it considered, including the fact that Sonia
earns $76,000 per year working full time. These express findings support an implied
finding that the trial court determined Sonia eligible for spousal maintenance. See TEX.
R. CIV. P. 299; Howe, 551 S.W.3d at 245; see also Smith, 2013 Tex. App. LEXIS 11769, at **12-
13 (noting that “if the findings are not as definite and specific as they should be, a
reviewing court will consider not only the facts expressly found, but those that are
implied from those expressly found”). We, therefore, are not persuaded by Yossef’s
contentions that the trial court did not make sufficient findings to support its spousal-
maintenance award and that the trial court’s award cannot be supported by an implied
finding under Rule 299.
Furthermore, such an implied finding is supported by the record evidence. In
particular, the evidence includes testimony from Sonia that she needs spousal support to
get back on her feet as she adjusts to supporting a household and improving her own
career. Additionally, both parties submitted budgets detailing their monthly income and
expenditures. Specifically, Sonia indicated that her monthly expenses are $9,057.
Combining her gross monthly income of $6,333.33 with the $2,565 in ordered child
In the Matter of the Marriage of Elabd Page 6
support, Sonia’s total gross income per month is $8,898.33, which is less than the $9,057
in expenses alleged in her monthly budget. This constitutes sufficient evidence that her
current earnings and the court-ordered child support do not meet her minimum
reasonable needs, as impliedly found by the trial court.
Therefore, considering the evidence in the light most favorable to the trial court’s
ruling, we conclude that there was some evidence upon which the trial court based its
decision that Sonia rebutted the statutory presumption against spousal maintenance and,
thus, was entitled to spousal maintenance under section 8.051(2)(B). See TEX. FAM. CODE
ANN. §§ 8.051(2)(B), 8.053; see also City of Keller, 168 S.W.3d at 827; Slicker, 464 S.W.3d at
860; Day, 452 S.W.3d at 433. As such, we cannot say that the trial court abused its
discretion by determining that Sonia was entitled to spousal maintenance in this case. See
Dunn, 177 S.W.3d at 396; see also Day, 452 S.W.3d at 433. We overrule Yossef’s first issue.
C. Section 8.052 and the Amount of Spousal Maintenance Awarded
In his second issue, Yossef argues that, even if Sonia was entitled to spousal
maintenance, the trial court abused its discretion by awarding her $1,500 per month.
More specifically, Yossef asserts that the evidence does not support the amount of spousal
maintenance awarded when the factors outlined in section 8.052 of the Family Code are
considered. Once again, we disagree.
Once the determination is made that a spouse is entitled to spousal maintenance
under section 8.051, courts consider several factors in determining the nature, amount,
In the Matter of the Marriage of Elabd Page 7
duration, and manner of the periodic payments under section 8.052 of the Family Code.
See TEX. FAM. CODE ANN. § 8.052 (West Supp. 2018). These factors include:
(1) each spouse’s ability to provide for that spouse’s minimum reasonable
needs independently, considering that spouse’s financial resources on
dissolution of the marriage;
(2) the education and employment skills of the spouses, the time necessary
to acquire sufficient education or training to enable the spouse seeking
maintenance to earn sufficient income, and the availability and
feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and
emotional condition of the spouse seeking maintenance;
(5) the effect on each spouse’s ability to provide for that spouse’s minimum
reasonable needs while providing periodic child support payments or
maintenance, if applicable;
(6) acts by either spouse resulting in excessive or abnormal expenditures or
destruction, concealment, or fraudulent disposition of community
property, joint tenancy, or other property held in common;
(7) the contribution by one spouse to the education, training, or increased
earning power of the other spouse;
(8) the property brought to the marriage by either spouse;
(9) the contribution of a spouse as a homemaker;
(10) marital misconduct, including adultery and cruel treatment, by
either spouse during the marriage; and
(11) any history or pattern of family violence, as defined by Section
71.004.
Id.
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After determining that Sonia was eligible for spousal maintenance, the trial court
considered numerous factors, including the property available to both parties; each
spouse’s ability to provide for that spouse’s minimum reasonable needs independently,
considering that spouse’s financial resources on the dissolution of the marriage; the
education and employment skills of the spouses; the duration of the marriage; the age,
employment history, earning ability, and physical and emotional condition of Sonia—the
spouse seeking maintenance; and Sonia’s contribution to the marriage as a homemaker.
These factors mirror those articulated in section 8.052 of the Family Code. See TEX. FAM.
CODE ANN. § 8.052.
Moreover, the record contains ample evidence supporting these factors. It is
undisputed that the parties were married for nineteen years and that Sonia spent the
marriage dedicated to supporting Yossef in the furtherance of his education and career.
Sonia testified that, since 2003, she worked part-time so that she could spend most of her
time as a “stay-at-home mom.” Sonia works from home as a medical editor; however,
since the divorce was filed, Sonia had to increase her work hours. The trial testimony
established that, if she lost her existing job, it would be very difficult for her to find a
comparable position in the Bryan-College Station area because there is no major medical
center. Indeed, Sonia testified that she sought other employment in the Bryan-College
Station area, but was unsuccessful. Sonia’s ability to find other employment is not only
limited by the nature of her job but also the fifty-mile geographic restriction regarding
In the Matter of the Marriage of Elabd Page 9
the designation of the children’s primary residence. Also, Sonia testified that she has a
rare blood cancer for which there is no remission.
Additional evidence adduced at trial showed that both Yossef and Sonia have
advanced degrees—Youssef has a Ph.D. in chemical engineering and Sonia has a Master’s
degree in writing. And while Sonia earns $76,000 per year, Youssef makes approximately
$193,000 per year as a Professor of Chemical Engineering at Texas A&M University.
Moreover, the record reflects that the parties decided to use their accrued retirement to
purchase their first house. Youssef has had years to replenish his retirement accounts,
whereas Sonia has not. And though Sonia testified that, at the time of trial, she had
“nothing in retirement,” the record includes a statement from Vanguard pertaining to a
retirement account solely in Sonia’s name with a $15,325.91 balance. Furthermore, the
record demonstrates that Yossef agreed to pay $2,565 per month in child support.
Considering the evidence in the light most favorable to the trial court’s ruling, we
conclude that there was some evidence touching on many of the section 8.052 factors
upon which the trial court based its decision regarding the nature, amount, duration, and
manner of the periodic spousal-maintenance payments. See TEX. FAM. CODE ANN. § 8.052;
see also City of Keller, 168 S.W.3d at 827; Day, 452 S.W.3d at 433; Slicker, 464 S.W.3d at 860.
Accordingly, we hold that the trial court did not abuse its discretion in this regard. See
Dunn, 177 S.W.3d at 396; see also Day, 452 S.W.3d at 433. We overrule Yossef’s second
issue.
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II. THE COMMUNITY ESTATE
In his third issue, Yossef contends that the trial court abused its discretion by
awarding seventy percent of the community estate to Sonia. He specifically challenges
the division of the couples’ retirement accounts and the role fault in the breakup of the
marriage played in the disproportionate division of the community estate.
A. Standard of Review & Applicable Law
We review a trial court’s division of property under an abuse-of-discretion
standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court has wide latitude
in the exercise of its discretion in dividing the marital property in a divorce proceeding,
and that division will not be overturned on appeal unless the trial court has abused its
discretion. Id. The mere fact that a trial judge may decide a matter within his
discretionary authority differently than an appellate judge is not an abuse of discretion.
Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.—Texarkana 1991, no writ) (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). To constitute an abuse of
discretion, the trial court’s division of the property must be manifestly unfair. Mann v.
Mann, 607 S.W.2d 243, 245 (Tex. 1980).
Section 7.001 of the Family Code provides that the trial court shall, in its divorce
decree, order a division of the marital estate in a manner that it deems just and right. TEX.
FAM. CODE ANN. § 7.001 (West 2006). The trial court is not required to divide the marital
estate equally; however, its division must be equitable. Zieba v. Martin, 928 S.W.2d 782,
In the Matter of the Marriage of Elabd Page 11
786 (Tex. App.—Houston [14th Dist.] 1996, no writ). “The trial court’s discretion is not
unlimited, and there must be some reasonable basis for an unequal division of the
property.” O’Carolan, 71 S.W.3d at 532. In determining whether the division of the
community estate is equitable, the trial court may consider the following non-exclusive
factors: (1) the spouses' capacities and abilities; (2) benefits that the party not at fault
would have derived from the continuation of the marriage; (3) business opportunities; (4)
education; (5) physical conditions of the parties; (6) the relative financial conditions and
obligations of the parties; (7) size of the separate estates; (8) the nature of the property;
(9) disparities in earning capacities and income; (10) the fault of the breakup of the
marriage; and (11) any wasting of the community assets by one of the spouses. Murff,
615 S.W.2d at 698-99; see Garcia v. Garcia, 170 S.W.3d 644, 653 (Tex. App.—El Paso 2005,
no pet.).
Furthermore, because the trial court is in a better position to determine the candor,
demeanor, and credibility of the witnesses, we will not substitute our judgment for that
of the trial court. See In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (noting that the trial court is best able to observe and assess witnesses’
demeanor and credibility and to sense “forces, powers, and influences” that may not be
apparent merely from reading the record on appeal). Instead, we defer to the trial court’s
resolution of underlying facts and to the credibility determinations that may have
affected its decision. Id. Thus, an abuse of discretion generally will not occur when a trial
In the Matter of the Marriage of Elabd Page 12
court bases its decision on conflicting evidence. In re De La Pena, 999 S.W.2d 521, 526 (Tex.
App.—El Paso 1999, no pet.).
B. Discussion
In arguing that the trial court’s division of the community estate was an abuse of
discretion, Yossef focuses on fault in the breakup of the marriage and the couples’
retirement accounts. He does not address the remaining Murff factors on appeal.
While there was testimony by both Yossef and Sonia regarding fault in the
breakup of the marriage, the trial court, in its conclusions of law, specifically granted the
divorce on the ground of insupportability. The record also demonstrates that Sonia,
though college educated with a Master’s degree in writing, has spent the majority of the
marriage as a homemaker, raising the couple’s three children. And though she has
worked part-time in the past as a medical editor, Sonia put her career on hold to support
Yossef as he pursued further educational and career opportunities. This allowed Yossef
to increase his earning capacity to the current level of approximately $193,000 per year as
a college professor at Texas A&M University, whereas Sonia earns $76,000 per year in her
current job.
Additionally, unlike Yossef, Sonia cannot move for other employment
opportunities because of the geographic restriction involved in this case, and because of
the nature of her job. This significantly limits Sonia’s income opportunities. And while
Sonia received a disproportionate percentage share of the community estate, the majority
In the Matter of the Marriage of Elabd Page 13
of the assets that she received are not liquid. The house and the retirement funds, which
comprise the majority of the community estate that was divided, do not give her
immediate access to funds should she have additional needs for the children or for herself
should she lose her job. Furthermore, the record reflects that Sonia has a rare form of
blood cancer, which she will suffer with the rest of her life. This testimony touches on
several of the Murff factors and does not demonstrate a manifest unfairness constituting
an abuse of the trial court’s discretion in the division of the marital estate. See Murff, 615
S.W.2d at 698-99; Mann, 607 S.W.2d at 245; Garcia, 170 S.W.3d at 653; see also TEX. FAM.
CODE ANN. § 7.001. We therefore overrule Yossef’s third issue.
III. CONCLUSION
Having overruled all of Yossef’s issues on appeal, we affirm the judgment of the
trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
(Chief Justice Gray dissenting with an opinion)
Affirmed
Opinion delivered and filed September 4, 2019
Publish
[CV06]
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