Harlon H. Coleman v. Melinda F. Coleman ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-155-CV
HARLON H. COLEMAN APPELLANT
V.
MELINDA F. COLEMAN APPELLEE
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In three issues, Appellant Harlon H. Coleman asserts that the trial court
erred by awarding spousal maintenance to Appellee Melinda F. Coleman in their
divorce decree. We affirm in part and reverse and remand in part.
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 See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Harlon and Melinda married on November 22, 1985. On June 1, 2007,
Harlon filed for divorce. Twenty days later, Melinda entered a general denial.
On November 10, 2008, Melinda filed a counterpetition for divorce requesting,
among other things, spousal maintenance. Harlon responded with a motion to
strike, alleging surprise and lack of discovery. Harlon and Melinda both testified
at the November 13, 2008 bench trial.
A. Harlon’s Employment
Harlon testified that he works as a maintenance technician at Alcon
Laboratories and grosses $1,572 per week; by trial, he had worked there for
seven years. In 2007, he reported a little over $109,000 in income. He
testified that, during the eighteen months they had been separated, he had
given Melinda approximately $29,000 in cash for maintenance and that he had
moved out of the marital residence, allowing her to live there while he
continued to pay the monthly mortgage payment. 2
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 Melinda moved out of the marital residence in June or July 2008
because of a conflict with their son, who was living there at the time, and
moved in with her parents.
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B. Melinda’s Employment
Melinda had been certified to be a nursing home activity director and had
worked in that field, making $10 an hour, around nine years before trial. But
for most of their son’s life, she was a stay-at-home mother. 3
According to Harlon, Melinda had not sought employment since they
separated; prior to his filing for divorce, Melinda worked at Alcon Laboratories
full-time in a temporary position as a Quality Assurance analyst making $20 an
hour for around three or four months. Melinda had earned approximately
$10,000 while working at Alcon in the two years before trial.
Harlon testified that Melinda’s temporary position with Alcon had the
potential to become a permanent full-time position and that the temporary
employee that replaced her at Alcon had become a full-time employee. Melinda
testified that the Alcon position was temporary and that there were never any
discussions that it would become permanent. Melinda testified that she quit
the Alcon job because a co-worker lied about her, making her “working
circumstances very difficult” and causing her stress. She testified that the
reason she gave Alcon for leaving was “[c]onflict issues with co-worker” and
that she just quit.
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 Harlon testified that he and Melinda have a twenty-year-old son who
is in college and who Harlon supports by paying his rent, car payment, and
automobile insurance.
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Since the separation, Melinda had earned approximately $500 by
providing travel and transportation assistance for elderly persons. Melinda
testified that she had not kept her activity director certification current. She
testified that she had a strong desire to be a missionary, which required sixteen
months of training.
C. Trial Court’s Decision
After taking the matter under advisement, the trial court issued a letter
ruling on November 13, 2008, denying Harlon’s motion to strike, ordering a
distribution of the marital estate that roughly equalized the assets and liabilities
apportioned to each party, and ordering Harlon to pay Melinda $1,000 per
month in spousal maintenance for twenty months. On May 8, 2009, the trial
court signed a final decree of divorce incorporating these orders and granting
divorce on the ground of insupportability. This appeal followed.
III. Spousal Maintenance
In his third issue, Harlon asserts that there is insufficient evidence to
overcome the presumption under section 8.053(a) of the family code that
spousal maintenance is not warranted.
A. Standard of Review
A trial court’s award of spousal maintenance is subject to an abuse of
discretion review. Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex. App.—Fort
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Worth 2008, pet. denied) (citing Chafino v. Chafino, 228 S.W.3d 467, 474
(Tex. App.—El Paso 2007, no pet.)). The trial court may exercise its discretion
to award spousal maintenance if the party seeking maintenance meets specific
eligibility requirements. Id. (citing Crane v. Crane, 188 S.W.3d 276, 278 (Tex.
App.—Fort Worth 2006, pet. denied)). When there is no evidence or
insufficient evidence to support a spousal maintenance claim, a trial court
abuses its discretion by granting spousal maintenance. See Dunn v. Dunn, 177
S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
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.
Brooks, 257 S.W.3d at 425. To determine whether there has been an abuse
of discretion because the evidence is legally or factually insufficient to support
the trial court’s decision, we engage in a two-pronged inquiry: (1) did the trial
court have sufficient evidence upon which to exercise its discretion, and (2) did
the trial court err in its application of that discretion? Boyd v. Boyd, 131
S.W.3d 605, 611 (Tex. App.—Fort Worth 2004, no pet.); see also Moroch v.
Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied).
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B. Family Code Section 8.053(a)
Family code section 8.053(a) creates a presumption that spousal
maintenance is not warranted unless the spouse seeking the maintenance has
exercised diligence in either “(1) seeking suitable employment; or (2) developing
the necessary skills to become self-supporting during a period of separation and
during the time the suit for dissolution of the marriage is pending.” 4 Tex. Fam.
Code Ann. § 8.053(a) (Vernon 2006).
C. The Evidence
The only testimony pertinent to our inquiry came from Melinda under
direct examination:
Q. . . . When was the last time you were working . . . [as a nursing
home activities director]?
A. Nine years ago.
Q. All right. How am I going to put this. And so, let’s say, when
you and your husband separated 18 months ago or two years ago
even, what would it have taken two years ago for you to get your
certification back?
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 The presumption applies to maintenance under section 8.051(2),
which states that in a suit for dissolution of a marriage, the court may order
maintenance for either spouse only if the marriage lasted ten years or longer,
the spouse seeking maintenance lacks sufficient property to provide for the
spouse’s minimum reasonable needs, and the spouse seeking maintenance
“clearly lacks earning ability in the labor market adequate to provide support for
the spouse’s minimum reasonable needs.” See Tex. Fam. Code Ann.
§ 8.051(2)(C) (Vernon 2006).
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A. I would have had to have done some type of continuing
education. I don’t know what that is. I haven’t checked into it.
Q. Why didn’t you check into it?
A. Because I don’t want to do that.
Q. What is it that you want to do?
A. I want to go into the mission field and be a missionary.
Q. Okay. And you have looked into that?
A. Yes. I have.
Q. Roughly how long does that training take?
A. There’s different time periods. The one I’m looking at now is
16 months.
Q. Okay. And you’d rather do that than try to catch up on nine
years of continuing legal—continuing education for being an
activities director?
A. Yes. [Emphasis supplied.]
Melinda also testified that in the two years prior to trial she had made
about $500 providing travel and transportation assistance to the elderly, but
she testified further as follows:
Q. So, it’s obvious you can’t make a living doing that?
A. No, it wasn’t for the money. I didn’t do it for the money.
Q. You did it—why did you do it then?
A. Because it is what I was lead to do and meant to do.
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Q. You were just helping them out?
A. Yeah.
D. Analysis
Melinda cites In re Marriage of McFarland, 176 S.W.3d 650 (Tex.
App.—Texarkana 2005, no pet.), to support her argument that the foregoing
testimony is sufficient to rebut the statutory presumption. In that case, the
wife
testified that she had been a homemaker for most of the marriage,
had allowed her manicurist’s license to expire several years ago,
and had only recently been able to find employment (from which
she earned between $7.00 and $9.00 per hour because of her
limited education, training, experience, and lack of professional
licensure).
Id. at 653–54. In its conclusions of law, the trial court found, “Susan
McFarland had exercised due diligence in attempting during the pendency of the
divorce to obtain suitable employment.” Id. at 654. Based on the foregoing,
the appellate court affirmed the award of spousal maintenance. Id. at 659–60.
In In re Marriage of Eliers, the wife testified that following the couple’s
separation, she secured a low paying job in a grocery store that barely covered
her rent. 205 S.W.3d 637, 646 (Tex. App.—Waco 2006, pet. denied). Her
van was repossessed because of her inability to make monthly payments, and
the lack of transportation and her child-rearing responsibilities prevented her
from being able to pursue job training. She had explored other jobs in the
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vicinity without success. The court concluded that the trial court did not abuse
its discretion by finding that she overcame the statutory presumption against
spousal maintenance “because she provided ample evidence that she ha[d]
exercised diligence in seeking suitable employment under her circumstances.”
Id.
In comparison to the cases above, Melinda’s only testimony in support of
her spousal maintenance claim was that she had “looked into” going into the
mission field—which required sixteen months of training—and that she had
made $500 in the previous two years by transporting people—work that she did
not do for the money. In light of the statutory language and the cases above,
we hold that there was insufficient evidence upon which the trial court could
exercise its discretion to award spousal maintenance. Therefore, the trial court
erred by awarding spousal maintenance. We sustain Harlon’s third issue. 5
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 Because Harlon challenged the trial court’s award of spousal
maintenance on the ground that there was insufficient evidence, his remedy is
a new trial on the issue of spousal maintenance. See Glover v. Tex. Gen.
Indem. Co., 619 S.W.2d 400, 401–02 (Tex. 1981) (holding that if the court
of appeals sustains an issue or point because the evidence is factually
insufficient, it must reverse the judgment of the trial court and remand for new
trial); but cf. Watson v. Watson, 286 S.W.3d 519, 523, 525 (Tex. App.—Fort
Worth 2009, no pet.) (reversing and rendering judgment when appellant
complained that, rather than insufficient evidence, there was no evidence to
support the award of spousal maintenance).
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IV. Conclusion
Harlon’s third issue is dispositive. Having sustained that issue, we need
not reach his first two issues. See Tex. R. App. P. 47.1. We affirm the trial
court’s divorce decree except for the part pertaining to spousal maintenance.
We reverse the portion of the decree granting spousal maintenance and remand
this case to the trial court for a new trial solely on the issue of spousal
maintenance.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: December 10, 2009
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