Jeffery Dwayne Benoit v. Brenda Faye Benoit ( 2015 )

ACCEPTED
01-15-00023-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/7/2015 10:12:26 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00023-CV
IN THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST COURT OF APPEALS 5/7/2015 10:12:26 AM
CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
__________________________________
Jeffery Dwayne Benoit,
Appellant
vs.
Brenda Faye Benoit,
Appellee
___________________________________
On Appeal from County Court at Law #2
of Orange County, Texas
Cause No. E-140,080-D
____________________________________
APPELLANT’S AMENDED BRIEF
________________________________________________________________
Submitted by:
Jack Lawrence
Attorney for Appellant
5570 Winfree
Beaumont, Texas77705
(409) 833-0894
SBN #12043800
May 7, 2015
- ORAL ARGUMENT CONDITIONALLY REQUESTED -
IDENTITY OF PARTIES & COUNSEL
For Appellant, Jack Lawrence, Appellate Attorney
Jeffery Dwayne Benoit 5570 Winfree
Beaumont, Texas 77705
(409) 833-0894 office
(409) 835-4567 fax
SBN #12043800
Bryan E. McEachern, Trial Atty
2905 Toccoa Road
Beaumont, Texas 77703
(409) 892-1611 (office)
(409) 242-5848 (fax)
SBN # 24043810
For Appellee, Jamie D. Matuska, Appellate Atty
Brenda Faye Benoit 2809 Hwy 69 North
Nederland, Texas 77627
(409) 722-5600 (office)
(409) 727-1290 (fax)
SBN # 24041062
Steve Carlton, Trial Attorney
801 Henderson
Orange, Texas 77630
(409) 886-5531 (office)
(409) 886-5926 (fax)
SBN # 03818500
County Court Honorable Judge Troy Johnson
at Law #2 County Court at Law #2
Orange County Courthouse
801 West Division Ave.
Orange, Texas 77630
(409) 670-4189
2
APPELLANT’S CONDITIONAL REQUEST FOR ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure, Rule 39.7, Appellant hereby
conditionally requests oral argument. If Appellee, or her counsel, request oral
argument, then Appellant likewise requests oral argument.
3
TABLE OF CONTENTS
Topic Page No.
Overleaf…………………………………………………………….………….. .. .1
Identity of Parties & Counsel….………………………………………………...…2
Request for Conditional Oral Argument ....………………………………………...3
Table of Contents………………………………………………………………….4
Index of Authorities………………………………………………………………..8
Abbreviations Used……………………………………………………………….13
Statement of the Case……………………………………………………………..15
Issues Presented…………………………………………………………………..18
Statement of Facts………………………………………………………………...19
Summary of Argument……………………………………………………….........20
Argument and Authorities...................................................................................................23
ISSUE NO. I. THE TRIAL COURT ABUSED ITS DISCRETION AS A
MATTER OF LAW BY USING APPELLEE’S ALLEGED PHYSICAL
DISABILITY TO OVERCOME THE TEXAS FAMILY CODE #8.053
PRESUMPTION THAT SPOUSAL MAINTENANCE WAS NOT
WARRANTED…………………………………………………………………..23
ISSUE NO. II. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO REBUTT THE
TEXAS FAMILY CODE SECTION 8.053 PRESUMPTION…………………..23
ISSUE NO. III. THE TRIAL COURT ABUSED ITS DISCRTION BY
GRANTING SPOUSAL MAINTENANCE INASMUCH AS THE EVIDENCE
ADDUCED AT TRIAL WAS FACTUALLY INSUFFICIENT TO REBUTT
THE TEXAS FAMILY CODE SECTION 8.053 PRESUMPTION…………......23
ISSUE NO. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY USING
SPOUSAL MAINTENANCE TO TRY TO CONTINUE APPELLEE IN HER
FORMER MARITAL STANDARD OF LIVING, THUS REQUIRING
REVERSAL…….……………………………………………..…………..……...27
4
Topic Page No.
ISSUE NO. V. BECAUSE ‘SPOUSAL MAINTENANCE CAN ONLY BE TO
SUPPLY OR MEET ‘REASONABLE MINIMUM NEEDS’ OR NECESSARIES,
THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING
APPELLEE SPOUSAL MAINTENANCE AMOUNTS WHICH EXCEED
HER ‘MINIMUM REASONABLE NEEDS’ AS OPERATIVELY DEFINED
UNDER TEXAS LAW…………………………………………………………..27
ISSUE NO. VI. THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
SET SPOUSAL MAINTENANCE AT $1625 PER MONTH, WHERE
APPELLEE’S MONTHLY EXPENSE SHEET CONTAINED VAGUE
HEADINGS WHICH CLAIMED EXPENSES IN ROUND NUMBERS, BUT
HAD NO RECEIPTS TO VERIFY THE AMOUNT CLAIMED……………... 27
A. What constitutes ‘reasonable minimum needs’?………………………... 28
ISSUE NO. VII. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE 11
STIPULATION MAKING IT A CONTRACT- UAL TERM OF THE DECREE,
WHEREBY THE DEBT ON THE PARTIES’ HOUSE, TOGETHER WITH
THE HOUSE ITSELF, WAS AWARDED TO APPELLEE, AND HENCE,
APPELLANT CANNOT BE ORDERED TO PAY SAID MORTGAGE DEBT
AS SPOUSAL MAINTENANCE, AS WAS LATER ORDERED, THUS
REQUIRING REVERSAL AND REMAND…………………………………....33
ISSUE NO. VIII. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE 11
STIPULATION MAKING IT A CONTRACT- UAL TERM OF THE DECREE,
WHEREBY THE DEBT ON APPELLEE’S SILVERADO TRUCK,
TOGETHER WITH THE TRUCK, WAS AWARDED TO APPELLEE, AND
HENCE APPELLANT CANNOT BE ORDERED TO PAY SAID DEBT AS
SPOUSAL MAINTENANCE AS WAS LATER ORDERED, THUS
REQUIRING REVERSAL AND REMAND…………………………………....33
5
Topic Page No.
ISSUE NO. IX. THE TRIAL COURT ABUSED ITS DISCRETION BY
ORDERING APPELLANT TO PAY APPELLEE’S DEBTS ON THE
MAURICEVILLE RESIDENCE AND THE SILVERADO, WHERE TRIAL
PROOF DID NOT OVERCOME THE FAMILY CODE SECTION 8.051
REQUIREMENT THAT SEPARATE PROPERTY WOULD NOT AVAIL TO
SATISFY THESE NEEDS, THEREBY REQUIRING REVERSAL.……….......33
A. Appellee already had secured her separate property which satisfied her
minimum reasonable needs for transportation and housing…………………….....38
ISSUE NO. X. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
OFFSETTING INCOME RESOURCES READILY AVAILABLE TO
APPELLEE, WHERE HE IMPUTED LONG-TERM LARGE BONUSES TO
APPELLANT, AND DID NOT OFFSET FACTORS LIKE APPELLANT’S
HOUSING EXPENSES IN SETTING THE BASE AMOUNTS USED TO
CALCULATE SPOUSAL MAINTENANCE………………………………….…40
ISSUE NO. XI. ALTERNATIVELY, IT VIOLATED ARTICLE I, SECTION
3a, OF THE TEXAS CONSTITUTION, TO IMPUTE INCOME TO
APPELLANT, WITHOUT ALSO IMPUTING SOURCES OF INCOME
ATTRIBUTABLE TO APPELLEE AT HER AGE OF 65 AND POST-
DIVORCE, IN CALCULATING HER MINIMUM REASONABLE NEEDS....40
ISSUE NO. XII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING $5,000.00 IN ATTORNEY’S FEES TO APPELLEE’S
ATTORNEY FOR APPEALING THE AWARD OF SPOUSAL
MAINTENANCE WHERE THE ISSUES ON APPEAL EITHER CONCERN
ONLY, OR ARISE AS A RESULT OF, THE COURT-ORDERED SPOUSAL
MAINTENANCE AWARD…………………………………………………….44
6
Topic Page No.
ISSUE NO. XIII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING APPELLEE ATTORNEY’S FEES FOR HER APPEAL
REGARDING SPOUSAL MAINTE- NANCE AS A NECESSARY, WHEN
ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A NECESSARY IN
LITIGATION UNDER THE TEXAS FAMILY CODE.…………………...…...44
ISSUE NO. XIV. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE EVIDENCE WAS LEGALLY INSUFFICIENT TO AWARD
ATTORNEY’S FEES TO APPELLEE IN ADVANCE OF HER APPEAL AS A
NECESSARY, WHERE ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A
NECESSARY IN LITIGATION UNDER THE TEXAS FAMILY CODE…44-45
A. Legislative history of Texas Family Code Section 6.709………………...47
ISSUE NO. XV. THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPUTING A NON-RECURRENT AND UNDEPENDABLE SALARY
BONUS (OR BONUSES) TO APPELLANT BEFORE CALCULATING THE
AMOUNT OF SPOUSAL MAINTENANCE APPELLANT WOULD PAY
ANNUALLY FOR 7 YEARS BY ASSESSING THE FULL 20% ALLOWED BY
STATUTE………………………………………………………………………..51
Conclusion and Prayer……………………………………………………………57
Certificate of Service.....…………………………………………………………...58
Certificate of Compliance....................................................................................................59
Appendices
Appendix A. - Final Decree of Divorce
Appendix B. - Findings of Fact & Conclusions of Law
Appendix C. - Rule 11 Stipulation Agreement
7
INDEX OF AUTHORITIES
Cases Cited Page No.
Carlin v. Carlin, 92 S.W.3d 902 (Tex. App. Beaumont 2002, no pet.)……..................20
Casole v. Casole, No. A-4654-06T2 (N.J. Super. Ct. App. Div. March 31, 2008)…....55
Clanin v. Clanin, 918 S.W.2d 673 (Tex. App. Fort Worth 1996, no writ)…………...35
Cole v. Cole, 384 N.W.2d 312 (S.D. 1986)……………………………………….…56
Dennis v. Smith, 962 S.W.2d 67 (Tex. App. Houston [1st Dist.] 1997, pet. denied)….42
Donzis v. McLaughlin, 981 S.W.2d 58 (Tex. App. San Antonio 1998, no pet.)…..22, 35
Easter v. Easter, 2013 WL 53849 (Ky. Ct. App. Jan. 4, 2013)(unpub.)……………....43
Ellis v. Emil Blum Co., 242 S.W. 1099 (Tex. Civ. App. 1922, no writ)……………....30
Engineer v. Engineer, 187 S.W.3d 625(Tex. App. Houston [14th Dist.] 2006, no pet.)..36
Everett v. Everett, 421 S.W.3d 918 (Tex. App. El Paso 2014, no pet.)……….22, 37, 39
Fitch v. Fitch, 2013 WL 2610143 (Tex. App. Dallas June 7, 2013)(unpub.)…………44
F.K.M. Partnership, Ltd. v. Board of Regents, 225 S.W.3d 619 (Tex. 2008)…………….54
Galveston H. & H. R. Co. v. Anderson, 229 S.W. 998 (Tex. Civ. App. Galveston 1920,
writ ref’d.)………………………………………………………………………...24
Gonzales v. Gonzales, 300 S.W. 20 (Tex. Comm’n App. Sec. A 1927)……………….29
Henderson v. Henderson, 327 A.2d 60 (Pa. 1974)…………………………………41, 42
Henderson v. Wietzikoski, 841 S.W.2d 101 (Tex. App. Waco 1992, pet. denied)……..42
In re A.D., No. 14-12-00914-CV (T>A> Houston [14th Dist.] 2014(unpub.)….…..35
In re Dryden, 52 S.W.3d 257 (Tex. App. Corpus Christi 2001, no pet.)……………..46
8
Cases Cited (cont.) Page No.
In the Interest of L.T.H., R.R.H., & A.W.H., 418 S.W.3d 876 (Tex. App. Dallas 2013,
pet. denied)……………………………………………………………………22, 34
In re T.A.W., L.J.W., M.M.W., & J.M.W., No. 02-09-309-CV (Tex. App. Ft. Worth
2010)(unpublished)………………………………………………………………..28
In re T.B., 2009 WL 891882 (Tex. App. San Antonio April 3, 2009)(unpub.)……... 35
In the Matter of the Marriage of Nolder, 48 S.W.3d 432 (Tex. App. Texarkana 2001,
no pet.)…………………………………………………………………………....36
In re Marriage of Thurmond, 888 S.W.2d 269 (Tex. App. Amarillo 1994, writ denied). 28
In re Unnamed Baby McLean, 725 S.W.2d 696 (Tex. 1987)…………………………. 42
In re Garza, 153 S.W.3d 97 (Tex. App. San Antonio 2004, no pet.)………………..47
Jourdan v. Jourdan, No. 04-10-00402-CV (Tex. App. San Antonio 2011)(unpub.)..…44
Keim v. Anderson, 943 S.W.2d 938 (Tex. App. El Paso 1997, no pet.)…………...22, 36
Keith v. Keith, 221 S.W.3d 156 (Tex. App. Houston [1st Dist.] 2006, no
pet.)……………………………………………………………………22, 39, 40, 49
Koelm v. Koelm, 2011 WL 2162879 (Tex. App. Austin 2011)(unpublished)…………38
McLendon v. McLendon, 847 S.W.2d 601 (Tex. App. Dallas 1992, writ denied)…..34-36
McGregor v. Clawson, 506 S.W.2d 922 (Tex. Civ. App. Waco 1974, no writ)………...24
McKee v. Popular Dry Goods Co., 240 S.W. 567 (Tex. Civ. App. El Paso 1922, no
writ)………………………………………………………………………………31
Meritor Automotive, Inc. v. Ruan Leasing, 44 S.W.3d 86 (Tex. 2001)…………………..49
9
Cases cited (cont.) Page No.
Milner v. Milner, 2014 WL 1096339 (N.J. Super. Ct. App. Div. March 21, 2014)........43
O’Carolan v. Hopper, 71 S.W.3d 529 (Tex. App. Austin 2002, no pet.)…………….. 32
Paddock v. Siemoneit, 218 S.W.2d 428 (Tex. 1949)…………………………………..54
Pohla v. Pohla, 2010 WL 877555 (Tex. App. Beaumont March 11, 2010(unpub.).35, 36
Post v. Garza, 867 S.W.2d 88 (Tex. App. Corpus Christi 1993, no pet.)……………48
Rice v. Mercantile Bank & Trust, 86 S.W.2d 54 (Tex. Civ. App. Dallas 1935, no writ).31
Rodriguez v. Rodriguez, 860 S.W.2d 414 (Tex. 1993)……………………………..21, 28
Sanchez v. Sanchez, 2008 WL 3971274 (Tex. App. Corpus Christi 2008)(unpub.)….. 35
Saper v. Rodgers, 418 S.W.2d 874 (Tex. App. Houston [1st Dist.] 1967, writ ref’d. n.r.e.)
………………………………………………………………………………..39, 40
Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980)………………………………….…...49
Smith v. Smith, 454 So. 2d 1136 (4th Ct. App. La.), writ denied, 458 So. 2d 478
(La.
1984)……………………………………………………………………………...28
Southwest Properties, L.L.P. v. Lite-Dec of Texas, 989 S.W.2d 69 (Tex. App. San Antonio
1998, pet. denied)…………………………………………………………………54
Stevenson v. Stevenson, 511 A.2d 961 (R.I. 1986)……………………………………..32
Taylor v. Husted & Tucker, 257 S.W. 232 (Tex. Comm’n App. 1924)……………….30
Tedder v. Gardner Allrich, L.L.P., 421 S.W.3d 651 (Tex. 2013)……….21, 22, 28, 30, 45
Texaco, Inc. v. Pennzoil, Inc., 729 S.W.2d 768 (Tex. App. Houston [1st Dist.] 1987, writ
ref’d. n.r.e., cert. denied, 485 U.S. 994, 108 S. Ct. 1305, 99 L.Ed.2d 686(1988)…… 39
Toles v. Toles, 45 S.W.3d 252 (Tex. App. Dallas 2001, pet. denied)…………………46
10
Cases cited (cont.) Page No.
Tomsu v. Tomsu, 381 S.W.3d 715 (Tex. App. Beaumont 2012, no pet.)…………21, 38
Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013)………………………………....22, 46
Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex. 1976)(per curiam)...22, 35
Walker v. Townslee, 677 S.W.2d 502 (Tex. 1984)…………………………….......47, 48
Wallace v. Briggs, 348 S.W.2d 523 (Tex. 1961)……………………….……………...48
Winkie v. Conatser, 171 S.W. 1017 (Tex. Civ. App. Amarillo 1914, writ ref’d.)….…..30
Woodruff v. Woodruff, 487 S.W.2d 791 (Tex. Civ. App. Texarkana 1977, no writ)…..31
Constitutions and Statutes Cited Page No.
Fourteenth Amendment, United States Constitution………………………….…..47
Article I, Sec. 3a, Texas Constitution…………………………………...22, 40-42, 44
Texas Family Code Ann. Sec. 2.501 (West 2006)……………………………....21, 30
Texas Family Code Ann. Sec. 6.709 (O’Connor’s 2013-2014)………………….47-50
Texas Family Code Ann. Sec. 9.007…………………………………………...22, 37
Texas Family Code Ann. Sec. 8.001 (West Supp. 2012)…………………………...52
Texas Family Code Ann. Sec. 8.051 (West Supp. 2012)……………………….21, 38
Texas Family Code Ann. Sec. 8.052(1) (West Supp. 2012)………………………...52
Texas Family Code Ann. Sec. 8.052(4), (8) (West Supp. 2012)…………………….52
Texas Family Code Ann. Sec. 8.053 (West Supp. 2012)………...20, 21, 23, 24, 25, 27
Texas Family Code Ann. Sec. 8.053(a) (West Supp. 2012)…………………20, 24, 25
Texas Family Code Ann. Sec. 8.055(1)(A)(a-1)(West Supp. 2012)……………..52, 53
Texas Family Code Ann. Sec. 8.054(a)(1)(B) (West Supp. 2012)…………………..51
Texas Family Code Ann. Sec. 8.055 (West Supp. 2012)…………………………...52
Texas Family Code Ann. Sec. 156.405 (West 2014)……………………………….28
Texas Family Code Ann. Sec. 159.102(5) (West 2014)………………………....53, 54
(All references to West Supp. 2012 were also verified in O’Connor’s 2013-2014)
Texas Civil Practice & Remedies Code Sec. 154.071(a) (West 2011)…………...22, 38
Texas Government Code Ann. Sec. 312.002(a) (West 2013)……………………....54
Texas Government Code Ann. Sec. 311.011(a) (West 2013)……………………....54
Former Texas Family Code Sections 3.58, 3.58(c), 3.58(h)......................................47-49
Former Texas Family Code Sec. 4.02 …………………………………………….30
Former Articles 4613-4641 (V.A.C.S.)…………………………………………….29
11
Constitutions and Statutes Cited (cont.) Page No.
Rule 11, Texas Rules of Civil Procedure…………………………...21, 36, 38, 40, 41
Miscellaneous Authorities Page No.
39 Tex. Jur. 3d, Family Law, Sec. 105 (Thomson West 2005)……………………..21
67 Tex. Jur. 3d, Statutes, Sec. 74 (West 2003)……………………………………..24
41 C.J.S., Husband & Wife, Sec. 50 (West 1991)…………………………………..29
Merriam Webster’s Collegiate Dictionary (11th ed. 2003)………………………….54
Webster’s Third New International Dictionary (1981)…………………………... 54
12
ABBREVIATIONS USED
Herein, the following abbreviations are used:
“C.R.” or “CR” stands for “Clerk’s Record;” “R.R.” or “RR” stands for “Reporter’s
Record,” while all references to Roman numerals refer to the volume number
thereof, and Arabic numerals refer to either the page number or line number, and a
line number will only be seen immediately after a page number; Ex.:“RR, I:38, l. 25.”
Line numbers will always be preceded by an “l.” “Exhib.” or “Exh.” Means
“Exhibit;” “Appt.” means “Appellant;” “hg.” means “hearing;” “emph. added”
means “emphasis added;” unpublished cases will be designated as “unpub.” or
variants of “not desig. for pub’n.,” etc. “Appx” or “Appx.” means “Appendix.”
“Section” is abbreviated “#” or “Sec.;” “in pert. part” means “in pertinent part;”
“No.” = “Number;” “Tex. Const.” means “Constitution of the State of Texas;”
“U.S.” means “United States;” “aff’d. in pt., rev’d. in pt.” means “affirmed in part,
reversed in part;” “rev’d. o.o.g.” means “reversed on other grounds.” “R.” stands
for “Rule;” “TRAP” or “T.R.A.P.” stands for the Texas Rules of Appellate
Procedure. “Tex. F.C.” means “Texas Family Code;” “Ann.” means “Annotated.”
“West” or “West Supp.” refers to Vernon’s Statutes. Unpublished cases may be
abbreviated several ways: “Unpub.” or “not desig. For publication” or “not desig.
for pub’n.,” or variations thereof. “Art.” means “Article.” Fuller citations will
frequently appear in the Index of Authorities. The Uniform System of Citations and
Texas Rules of Form are used herein.
13
STATEMENT OF THE CASE
Appellant and Appellee were married for 24 years. No children were born of
their marriage, although Appellee has children from a previous marriage. Appellant
filed an Original Petition for Divorce on January 31, 2014, in No. E-140,080-D, in
County Court at Law #2 of Orange County, Texas, the Honorable Troy Johnson,
presiding. A Rule 11 Stipulated Agreement encompassing the property division was
filed on August 5, 2014 (CR, I: ). Trial occurred on August 18, 2014 (and was
supposed to be limited to spousal maintenance issues due to the Rule 11
Agreement).
The Final Decree of Divorce was signed on October 30, 2014, and is
appended.
A Request for Findings of Fact and Conclusions of Law was timely filed on
December 5, 2014. A Motion for New Trial was filed on November 20, 2014, and a
Notice of Appeal was filed on November 24, 2014. Appellee filed a Motion for
Temporary Orders on November 24, 2014, and a hearing and Temporary Orders
resulted on December 15, 2014. Appeal is from the Final Decree of Divorce and
from the Temporary Orders of December 15th.
An Amended Notice of Appeal was filed on January 22, 2015.
14
ISSUES PRESENTED
ISSUE NO. I. THE TRIAL COURT ABUSED ITS DISCRETION AS A
MATTER OF LAW BY USING APPELLEE’S ALLEGED PHYSICAL
DISABILITY TO OVERCOME THE TEXAS FAMILY CODE # 8.053
PRESUMPTION THAT SPOUSAL MAINTENANCE WAS NOT
WARRANTED.
ISSUE NO. II. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO REBUTT THE
TEXAS FAMILY CODE # 8.053 PRESUMPTION.
ISSUE NO. III. THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING SPOUSAL MAINTENANCE INASMUCH AS THE EVIDENCE
ADDUCED AT TRIAL WAS FACTUALLY INSUFFICIENT TO REBUTT
THE TEXAS FAMILY CODE SECTION 8.053 PRESUMPTION.
ISSUE NO. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY
USINGSPOUSAL MAINTENANCE TO TRY TO CONTINUE APPELLEE IN
HERFORMER MARITAL STANDARD OF LIVING, THUS REQUIRING
REVERSAL.
ISSUE NO. V. BECAUSE ‘SPOUSAL MAINTNANCE’ CAN ONLY BE TO
SUPPLY OR MEET ‘REASONABLE MINIMUM NEEDS’ OR NECESSARIES,
THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING
APPELLEE SPOUSAL MAINTENANCE AMOUNTS WHICH EXCEED HER
‘MINIMUM REASONABLE NEEDS’ AS OPERATIVELY DEFINED UNDER
TEXAS LAW.
ISSUE NO. VI. THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
SET SPOUSAL MAINTENANCE AT $1625 PER MONTH, WHERE
APPELLEE’S MONTHLY EXPENSE SHEET CONTAINED VAGUE
HEADINGS WHICH CLAIMED EXPENSES IN ROUND NUMBERS, BUT
HAD NO RECEIPTS TO VERIFY THE AMOUNT CLAIMED.
15
ISSUE NO. VII. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE
THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE 11
STIPULATION MAKING IT A CONTRACTUAL TERM OF THE DECREE,
WHEREBY THE DEBT ON THE PARTIES’ HOUSE, TOGETHER WITH
THE HOUSE ITSELF, WAS AWARDED TO APPELLEE, AND HENCE,
APPELLANT CANNOT BE ORDERED TO PAY SAID MORTGAGE DEBT
AS SPOUSAL MAINTENANCE AS WAS LATER ORDERED, THUS
REQUIRING REVERSAL AND REMAND.
ISSUE NO. VIII. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE 11
STIPULATION MAKING IT A CONTRACTUAL TERM OF THE DECREE,
WHEREBY THE DEBT ON APPELLEE’S SILVERADO TRUCK,
TOGETHER WITH THE TRUCK, WAS AWARDED TO APPELLEE, AND
HENCE APPELLANT CAN-NOT BE ORDERED TO PAY SAID DEBT AS
SPOUSAL MAINTENANCE AS WAS LATER ORDERED, THUS
REQUIRING REVERSAL AND REMAND.
ISSUE NO. IX. THE TRIAL COURT ABUSED ITS DISCRETION BY
ORDERING APPELLANT TO PAY APPELLEE’S DEBTS ON THE
MAURICEVILLE RESIDNCE AND THE SILVERADO, WHERE TRIAL
PROOF DID NOT OVERCOME THE FAMILY CODE SECTION 8.051
REQUIREMENT THAT SEPARATE PROPERTY WOULD NOT AVAIL TO
SATISFY THESE NEEDS, THEREBY REQUIRING REVERSAL.
ISSUE NO. X. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
OFFSETTING INCOME RESOURCES READILY AVAILABLE TO
APPELLEE, WHERE HE IMPUTED LONG-TERM LARGE BONUSES TO
APPELLANT, AND DID NOT OFFSET FACTORS LIKE APPELLANT’S
HOUSING EXPENSES IN SETTING THE BASE AMOUNTS USED TO
CALCULATE SPOUSAL MAINTENANCE.
16
ISSUE NO. XI. ALTERNATIVELY, IT VIOLATED ARTICLE I, SECTION 3a,
OF THE TEXAS CONSTITUTION, TO IMPUTE INCOME TO APPELLANT,
WITHOUT ALSO IMPUTING SOURCES OF INCOME ATTRIBUTABLE TO
APPELLEE AT HER AGE OF 65 AND POST-DIVORCE, IN CALCULATING
HER REASONABLE MINIMUM NEEDS.
ISSUE NO. XII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING $5,000.00 IN ATTORNEY’S FEES TO APPELLEE’S
ATTORNEY FOR APPEALING THE AWARD OF SPOUSAL
MAINTENANCE WHERE THE ISSUES ON APPEAL EITHER CONCERN
ONLY, OR ARISE AS A RESULT OF, THE COURT-ORDERED SPOUSAL
MAINTENANCE AWARD.
ISSUE NO. XIII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING APPELLEE ATTORNEY’S FEES FOR HER APPEAL
REGARDING SPOUSAL MAINTENANCE AS A NECESSARY, WHEN
ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A NECESSARY IN
LITIGATION UNDER THE TEXAS FAMILY CODE.
ISSUE NO. XIV. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE EVIDENCE WAS LEGALLY INSUFFICIENT TO AWARD
ATTORNEY’S FEES TO APPELLEE IN ADVANCE OF HER APPEAL AS A
NECESSARY, WHERE ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A
NECESSARY IN LITIGATION UNDER THE TEXAS FAMILY CODE.
ISSUE NO. XV. THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPUTING A NON-RECURRENT AND UNDEPENDABLE SALARY
BONUS (OR BONUSES) TO APPELLANT BEFORE CALCULATING THE
AMOUNT OF SPOUSAL MAINTENANCE APPELLANT WOULD PAY
ANNUALLY FOR 7 YEARS BY ASSESSING THE FULL 20% ALLOWED BY
STATUTE.
17
STATEMENT OF FACTS
After 24 years of marriage, Appellant filed for divorce on January 31, 2014. There
are no children of the marriage. The parties’ Rule 11 Agreed Stipulation was
supposed to be a full property settlement, making spousal maintenance the only trial
issue (CR, I: 24). The Final Decree incorporates its terms, including award of loan
debts on the Mauriceville homestead and Silverado to Appellee, as agreed. But, at
trial, Appellee obtained rulings making Appellant pay said debts as spousal
maintenance, even though she already owns a lake-house estate and classic car as
separate property, and there was no effort to adjust or offset their values or impact
at any time, nor did the court consider other income now available to Appellee, who
turned 65 on September 26, 2014, making her eligible for increased federal benefits,
plus her late husband’s pension (RR, II:28-29).
The court set spousal maintenance at the maximum $1,625/month, for the
maximum duration of 7 years. Then, after we appealed, on December 15, 2014, the
court awarded opposing counsel $5,000.00 as an advance on appellate attorney’s
fees, and ruled the Appellant to be unable to deduct interim temporary spousal
support of $1625/month, which also does not count as part of the 7 years of
spousal support. That Order has also been appealed.
18
SUMMARY OF ARGUMENT
Due to the 2011 repeal of Tex. F.C. #8.053(b), Appellee’s disability cannot be
used to overcome Tex. F.C. #8.053(a)’s presumption that “maintenance…is not
warranted,” particularly since dissolution of the marriage had already occurred for
purposes of F.C. #8.053(a)(2), at the September 30, 2014 hearing. Yet, Finding of
Fact #5 shows disability was what was used to surmount said presumption. The only
other statutory alternative way to overcome said presumption was if Appellee was
actively seeking employment [F.C. #8.053(a)(1)], and she admitted there had been no
effort on her part to find work(RR, II:39-40). There were also no medical records
offered as evidence, and none to show whether her carpal tunnel syndrome was
more than a partial disability, while Appellee’s testimony on this was totally
subjective. See Carlin v. Carlin, 92 S.W.3d 902, 910 (Beaumont 2002, no pet.). These
factors also describe Appellee’s showings affecting the duration of the maintenance
order pursuant to Tex. F.C. #8.054(a)(2). Reversal is warranted because Appellee did
not overcome the Texas F.C. #8.053 presumption, her evidence being legally and
factually insufficient to do so.
The trial court further abused its discretion by awarding maintenance amounts
which exceeded her ‘minimum reasonable needs’ or necessaries, and the Monthly
Expense sheet evidence (Resp. Exh. #2) supporting the award was legally and
19
factually insufficient to the extent there were no receipts to support the vague
headings usually stated in very round numbers.
Although minimum reasonable needs are statutorily undefined, derivation
shows that they are synonymous with common-law necessaries essential to
sustenance, including food, clothing, shelter, medical care, and transportation. Tedder,
421 S.W.3d at 656; Tex. F.C. #2.501. However, Texas law does not allow support to
restore parties to their pre-divorce standard of living. See Rodriguez, 860 S.W.2d 416,
fn. 3; Tex. F.C.Sec. 156.405. Expenses which serve to maintain or aid in improving
Appellee’s separate property do not constitute necessaries. 39 Tex. Jur.3d, Family
Law # 105.
The Monthly Expense sheet (Resp. Exh. #2) used to calculate maintenance
was excessive in several aspects. “Various Sundries” were valued at $200/mo., but
they were only alluded to in court as ‘toiletries.’ The cell phone monthly expense
($130) was exorbitant. More importantly, Appellee already owns a $40,000 lake-house
on Toledo Bend lake, and a 1965 Ford Mustang fastback valued at $23,000, so she
had both shelter and transportation, -although she was also awarded the parties’
homestead in Mauriceville, Texas, and a new Chevy Silverado truck. Texas Family
Code Sections 8.051, 8.053, and 8.054 require all such separate property to be taken
into account in setting and awarding spousal maintenance, but it was not, because no
offsets or adjustments were even made in calculations. See Tomsu, 381 S.W.3d at 717.
20
Further, the parties already had a Rule 11, TRCP, Stipulated Property
Settlement Agreement controlling the entire property division. When it was entered,
the parties understood trial would only be about maintenance. Under it, Appellee
received their Mauriceville residence and the new Chevy Silverado truck, and assumed
full responsibility for the debts on both of said items.
Then, despite their binding settlement agreement, Appellee had the court assess
Appellant the $979/mo. and $225/mo. notes on these 2 items as part of the
$1,625.00 monthly maintenance he is to pay. Because both the trial court’s
incorporation of the terms of the Rule 11 Agreement, requiring Appellee to assume
these notes, and the maintenance provisions ordering Appellant to pay $1625/mo.
(including said notes) are part of the Decree, the spousal maintenance parts are
unenforceable. Vickrey, 532 S.W.2d 292 (Tex. 1976)(per curiam); In re L.T.H., 418
S.W.3d at 882; Donzio, 981 S.W.2d at 63; Keim, 943 S.W.2d at 946. Converting a debt
into spousal maintenance also cannot be enforced under Tex. F.C. #9.007. Everett,
421 S.W.3d at 921. Only the Rule 11 Stipulation part of the Decree remains binding.
Tex. C.P.R.C. # 154.071(a). Parties cannot lead the trial court into such error and
then complain on appeal. Keith, 221 S.W.3d at 172. Further, the failure to consider
sources of income available to Appellee as offsets is error, under case-law and Art. I,
# 3a, Tex. Const. Further, the court awarded Appellee’s attorney $5,000 as attorney’s
fees for doing her appeal, even though under Texas law, such an award cannot be
made until Appellee has won her appeal. Further, said fees were awarded as
21
necessaries, which is reversible error. Tedder, 421 S.W.3d 651. See Tucker, 419 S.W.3d
292. Reversal is necessitated on many of these grounds as a matter of law. Hence,
only some of the reversed grounds require remand.
22
ARGUMENT AND AUTHORITIES
ISSUE NO. I. THE TRIAL COURT ABUSED ITS DISCRETION AS A
MATTER OF LAW BY USING APPELLEE’S ALLEGED PHYSICAL
DISABILITY TO OVERCOME THE TEXAS FAMILY CODE # 8.053
PRESUMPTION THAT SPOUSAL MAINTENANCE WAS NOT
WARRANTED.
ISSUE NO. II. THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO REBUTT THE
TEXAS FAMILY CODE # 8.053 PRESUMPTION.
ISSUE NO. III. THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING SPOUSAL MAINTENANCE INASMUCH AS THE EVIDENCE
ADDUCED AT TRIAL WAS FACTUALLY INSUFFICIENT TO REBUTT
THE TEXAS FAMILY CODE SECTION 8.053 PRESUMPTION.
The trial court made two separate findings to justify the payment of spousal
maintenance to Appellee, Findings of Fact Nos. 4 and 5. However, to receive
maintenance, Appellee had to overcome the presumption found in Texas F.C. #
8.053 that maintenance would be unwarranted for her. The trial court’s only finding
in that regard was Finding of Fact No. 5, which reads in its entirety:
“5. BRENDA FAYE DRYDEN is unable to earn sufficient income to provide for
her minimum reasonable needs because of an incapacitating physical disability.”
Up until the repeal of former Tex. Fam. Code Sec. 8.053(b) by Acts 2011,
82nd Legislature, ch. 486, # 9(1), which became effective on September 1, 2011, it
was possible to overcome the Sec. 8.053 presumption and thereby justify an award
of spousal maintenance, due to an incapacitating disability. Here, the Original
Petition was filed on January 31, 2014. (C.R., I: 4). Hence, the applicable law at the
time of trial herein, as stated immediately below, no longer contained subsection (b):
23
Family Code # 8.053 Presumption
(a) It is a rebuttable presumption that maintenance under Section 8.051(2)(B) is
not warranted unless the spouse seeking maintenance has exercised diligence in:
(1) earning sufficient income to provide for the spouse’s minimum reasonable
needs; or
(2) 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. (emphasis added).
A. Rules applicable when a statutory provision is repealed.
The statute repealing Tex. F.C. # 8.053(b) expressly repeals subsection (b),
and adds nothing new in its place. The following rules therefore apply:
…A valid express repeal abrogates, destroys, or supersedes the act or provision
against which it is directed. Thereafter the statute repealed is considered as though it
had never existed, except as to transactions past and closed….
…A general repealing clause is effective to repeal prior enactments to the extent
that they are inconsistent with, or repugnant to, the terms of the later statute.
67 Tex. Jur. 3d, Statutes, #74. Generally; abrogation of statute (West 2003), citing
Galveston H. & H.R. Co. v. Anderson, 229 S.W. 998 (Tex. Civ. App. Galveston 1920,
writ ref’d.); McGregor v. Clawson, 506 S.W.2d 922 (Tex. Civ. App. Waco 1974, no
writ).
Thus, Finding of Fact #5 is legally insufficient as a matter of law to justify
overcoming the statutory presumption that maintenance is not warranted in the
instant case. In terms of the remaining proof required to overcome the presumption
under F.C. # 8.053(a), Finding No. 5 further demonstrates that the trial court did
not perceive that any such further proof, if any, was available to overcome said
presumption. Finding of Fact No. 4 only states that Appellee ‘will lack sufficient
24
property (including her separate property) to provide for her minimum reasonable
needs.’
Because a finding of incapacitating disability is the only ground which Judge
Johnson relied on in overcoming the Tex. F.C. # 8.053 presumption, the trial court
abused its discretion as a matter of law, and committed reversible error, inasmuch as
the statutory presumption was not overcome. The evidence is therefore legally
insufficient to support the court’s award of spousal maintenance to Appellee.
This lack of proof is reflected in the Reporter’s Record where Appellee
admitted there had been no effort on her part to find employment (See RR, II:39,
l.16-40, l. 6), as required under F.C. # 8.053(a)(1) and (2) (above). Further, no
documentary evidence of the extent of Appellee’s current medical condition was
adduced at trial.
There are many types of gainful employment which 65 year old persons with
a carpal tunnel type of disability can still do with little additional training, including:
phone receptionist, and jobs out-of-doors, such as gardening, -to name but a few,
and some of which Appellee already seems familiar with. For example, Appellee
admitted to brush-hogging a tract of land recently (RR, II:40, l.16-21); to cleaning
house, mowing grass, and baby-sitting her grandchildren(RR, II:35-36, l. 7); to
bowling with a 13-pound bowling ball (RR, II:36, l. 10); and to deep sea fishing (RR,
II:36, l. 22), for which Petitioner’s Exhibit Nos. 2 and 3(RR, IV) display pictures of
25
her holding some of the fish she has caught, Exhibit #2 being a 20 pound fish
caught the previous year (RR, II:37, l. 5-p. 38, l. 15).
Also, Appellee was 65 when the Final Decree was signed and entered on
October 30, 2014, and to our knowledge, still had not applied for regular Social
Security. (Her birthdate is September 26th.) Appellee did give evidence that she
receives $670.00 per month (net) as S.S.I. payment for her carpal tunnel syndrome.
There was never any documentary evidence adduced that Appellee’s disability(s) are
more than partial.
Receiving Social Security and Medicare are the tried and true ways that most
people who are Appellee’s age meet their reasonable minimum needs. The trial court
had notice of this, since Appellee’s age bordering on 65 is stated at R.R., II: p. 10, l.
14-18. Because of this errant award of maintenance based on disability, Appellee
may now be disqualified from receiving the full value of various Social Security
entitlement programs she now qualifies for, such as food stamps and housing
assistance, particularly due to the higher amounts she now must claim as income
thrown in by the trial court.
On the above grounds, Appellant respectfully prays that the Final Decree of
Divorce be reversed and remanded for further hearing consistent with the opinion
of this Court.
26
ISSUE NO. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY USING
SPOUSAL MAINTENANCE TO TRY TO CONTINUE APPELLEE IN HER
FORMER MARITAL STANDARD OF LIVING, THUS REQUIRING
REVERSAL.
ISSUE NO. V. BECAUSE ‘SPOUSAL MAINTENANCE’ CAN ONLY BE TO
SUPPLY OR MEET ‘REASONABLE MINIMUM NEEDS’ OR NECESSARIES,
THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING
APPELLEE SPOUSAL MAINTENANCE AMOUNTS WHICH EXCEED HER
‘MINIMUM REASONABLE NEEDS’ AS OPERATIVELY DEFINED UNDER
TEXAS LAW.
ISSUE NO. VI. THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
SET SPOUSAL MAINTENANCE AT $1625 PER MONTH, WHERE
APPELLEE’S MONTHLY EXPENSE SHEET CONTAINED VAGUE
HEADINGS WHICH CLAIMED EXPENSES IN ROUND NUMBERS, BUT
HAD NO RECEIPTS TO VERIFY THE AMOUNT CLAIMED.
Overcoming the Sec. 8.053 presumption requires that the trial court consider
whether Appellee’s separate property could be used to satisfy some of her needs.
Because the trial court did not require either sale of or renting of Appellee’s lake
house, nor the sale of her separate 1965 Mustang fastback automobile, but instead
required Appellant to pay the note on a new homestead ($979/mo.) and a new truck
($225/mo.) as maintenance, after the debts for these items were awarded to
Appellee in the contractual stipulated settlement, it is obvious Appellee’s minimum
needs are being exceeded by looking to what she was buying during her marriage to
Appellant. Thus, the court based maintenance in part on Appellee’s former standard
of living.
Appellant submits that, because former standard of living is outlawed in
Texas for setting child support, that it is also not permissible to use it as a factor in
27
setting spousal maintenance. In Rodriguez v. Rodriguez, 860 S.W.2d 414, 416-17, at fn.
3 (Tex. 1993), the Supreme Court stated, in pertinent part:
…The 1989 codification of # 14.055(c) specifically omitted lifestyle and income
as factors to be considered in awarding additional child support, leaving only needs
of the child. We presume that legislature omitted these phrases for a reason when it
codified the Supreme Court Guidelines. See Cameron v. Terrell & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981)….
The following Texas cases all support the view that former lifestyle may not
be considered when setting child support and therefore, logically, spousal support:
In re Marriage of Thurmond, 888 S.W.2d 269, 278 (Tex. App. Amarillo 1994, writ
denied);
In the Interest of T.A.W., L.J.W., M.M.W., & J.M.W., No. 02-09-309-CV (Tex. App.
Fort Worth Nov. 24, 2010). See Tex. Fam. Code Ann. Sec. 156.405 ( West 2014).
A. What constitutes ‘reasonable minimum needs?’
Texas courts frequently address this issue by stating that ‘reasonable
minimum needs’ is not defined by the statutes, and then determine a threshold
amount for the obligee on a case by case basis.
A Louisiana case gives the needs to be met by “maintenance” as food,
clothing, shelter, medical care, transportation, and household expenses. See Smith v.
Smith, 454 So. 2d 1136 (4th. Ct. App. La.), writ denied, 458 So. 2d 478 (La. 1984). The
Texas Supreme Court indicates that, other possibly than household expenses, these
would be what ‘necessaries’ are in Texas, and thereby ‘spousal maintenance’ where
necessary for someone’s sustenance. Tedder v. Gardner Allrich, LLP, 421 S.W.3d
651(Tex. 2013).
28
In most states, the earlier, common-law form of “reasonable minimum
needs” was the law of necessaries. In fact, alimony originated from the common
law right of the husband to control the property during marriage. Thus, when a
spouse would succeed in obtaining either a ‘divorce from bed and board’ or a legal
separation, it was still the duty of the husband in many states to provide necessaries
for his wife until a complete divorce eventuated.
The definitional interchangeability between “reasonable minimum needs” and
the doctrine of marital necessaries is obviated by the following excerpt:
…The husband’s common-law liability for his wife’s necessaries continues until
such time as the court awards alimony to the wife. If the wife does not apply for
temporary alimony, the husband’s common-law liability to provide her with
necessaries continues. 41 C.J.S., Husband and Wife, Sec. 50 (West 1991).
Prior to the Texas Family Code, the rights of the wife to recover expenses for
such needs, were limited to the provisions of former Articles 4628-4641 (V.A.C.S.),
which largely dealt with divorce, and former Articles 4613, 4621, and 4623
(V.A.C.S.), which made the wife an agent of the husband to purchase necessaries
and made his separate property liable for the debts so contracted. Gonzales v.
Gonzales, 300 S.W. 20 (Tex. Comm’n. App., Sec. A 1927). By 1995, this statutory
duty of support read:
(a) Each spouse has the duty to support the other spouse.
(b) A spouse who fails to discharge the duty of support is liable to any person
who provides necessaries to the spouse to whom support is owed.
29
Texas Family Code # 2.501 (2006), identical to former Texas Family Code # 4.02,
as amended by 74th Leg., R.S. (1995), chap. 751, section 4, effective September 1,
1995.
…Transportation expenses may be necessaries. However, purchases to aid the wife
in carrying on a business of her own, expenses for improving or developing her
separate property, and commissions to a broker for effecting an exchange of her
separate property do not come under the heading of necessaries.
39 Tex. Jur. 3d, Family Law, Sec. 105 (Thomson West 2005)(emphasis added).
The Texas Supreme Court recently emphasized that ‘necessaries’ are limited
to items required for maintenance:
…a spouse’s necessaries are things like food, clothing, and habitation-that is,
sustenance-and we have squarely rejected the view that a spouse’s legal fees in a
divorce proceeding fall into this category….
Tedder v. Gardner Allrich, L.L.P., 421 S.W.3d 651, 656 (Tex. 2013).
Regarding the issues herein, the following items are also held not to be
necessaries during the marriage and so cannot be within the scope of reasonable
minimum needs:
1) expenses for improving or developing the wife’s separate property. Taylor v.
Hustead & Tucker, 257 S.W. 232(Tex. Comm’n. App. 1924). See Ellis v. Emil Blum Co.,
242 S.W. 1099(Tex. Civ. App. 1922, no writ)(although clothing suiting her station in
life were necessaries, married woman’s separate estate was liable for same); Ellis v.
Emil Bloom Co., 242 S.W. 1101(Tex. Civ. App. 1922, no writ) (same facts - while
statute gives preference for widow’s allowance against husband’s general debts, it
gives her no preference for her individual debts).
2) commissions to a broker for transaction concerning the wife’s separate
property. Winkie v. Conatser, 171 S.W. 1017 (Tex. Civ. App. Amarillo 1914, writ
ref’d.).
30
A crucial distinction is that prior to the filing of divorce, ‘necessaries’ for a
spouse (and children) might to some limited extent reflect a family’s social standing,
insofar as the ability of the parties permitted. Rice v. Mercantile Bank & Trust, 86
S.W.2d 54 (Tex. Civ. App. Dallas 1935, no writ). See McKee v. Popular Dry Goods Co.,
240 S.W. 567 (Tex. Civ. App. El Paso 1922, no writ). However, the definition of
necessaries for the wife still excludes a college education, which is deemed a special
advantage. Woodruff v. Woodruff, 487 S.W.2d 791, 793 (Tex. Civ. App. Texarkana
1972, no writ).
It is obvious herein that the trial court awarded Appellee the homestead
residence and the Silverado truck as her property, on which the Decree also states
she contractually agreed to assume the debts for each, only to turn around and
disguise the note payments on each ($979 + $225/mo.) as spousal maintenance,
despite the fact that Appellee already had a lake-house and 1965 Ford Mustang
fastback as her separate property (CR, I:35). Inclusion of these notes was then used
to bring her expenses to $2,809 (RR, IV:Exh. #2), which was multiplied by the
maximum 20% to calculate maintenance, -without offsets. Forcing Appellant to
duplicate items which Appellee already owns is not furnishing necessaries to her,
since she has a place to stay and a way around (-i.e., shelter and transportation).
Appellee’s Monthly Expense sheet (RR,IV:Exh. #2) also contains ubiquitous and
overbroad categories for which no receipts were put in evidence, such as “Various
Sundries,” which are valued at $200/month. Still, it is never specified anywhere what
31
this is other than to imply it means a woman’s toiletries, which largely are not
necessaries, nor should they be so expensive for a post-menopausal woman. This
item is not only excessive, but also is indicative of the gouging which has shaped this
case.
Also, there is no statutory provision for re-calculation of Appellee’s
maintenance amount total as after-tax dollars (See RR, II:59, l. 10-p.60), to enable
Appellee to receive $1625/mo. rather than $1460/month, simply because she has to
pay tax on the payments as income. This, too, is excessive and is not provided for
in the statutes.
Further, Texas law has changed to a “rehabilitative alimony” model because
since 2011, Appellee must be diligently seeking employment to overcome the
presumption against the award of maintenance. See O’Carolan v. Hopper, 71 S.W.3d
529, 533 (Tex.App. Austin 2002, no pet.). Yet, the court made no finding on
this.The trend in many states has been to make their spousal support awards for
limited periods of time, in order to foster the obligee’s ability to become self-
supporting, as an inducement to find work. See Stevenson v. Stevenson, 511 A.2d 961,
967 (R.I. 1986). But here, the court extended the support obligation to the
maximum period of seven years, to end when Appellee is 72 years old. This
plausibly may be more debilitative than rehabilitative.
Therefore, the maintenance awarded is a far cry from merely providing
necessaries. Instead, Appellee already has the means to supply many of her basic
32
minimum needs, but the court puts her into a lifestyle possibly more lavish than
what she had during marriage.
ISSUE NO. VII. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE 11
STIPULATION MAKING IT A CONTRACTUAL TERM OF THE DECREE,
WHEREBY THE DEBT ON THE PARTIES’ HOUSE, TOGETHER WITH
THE HOUSE ITSELF, WAS AWARDED TO APPELLEE, AND HENCE,
APPELLANT CANNOT BE ORDERED TO PAY SAID MORTGAGE DEBT
AS SPOUSAL MAINTENANCE, AS WAS LATER ORDERED, THUS
REQUIRING REVERSAL AND REMAND.
ISSUE NO. VIII. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE PROPERTY SETTLEMENT AGREEMENT WHICH IS
INCORPORATED INTO THE FINAL DECREE IS BASED ON A RULE
11 STIPULATION MAKING IT A CONTRACTUAL TERM OF THE
DECREE, WHEREBY THE DEBT ON APPELLEE’S SILVERADO
TRUCK, TOGETHER WITH THE TRUCK, WAS AWARDED TO
APPELLEE, AND HENCE APPELLANT CANNOT BE ORDERED TO
PAY SAID DEBT AS SPOUSAL MAINTENANCE AS WAS LATER
ORDERED, THUS REQUIRING REVERSAL AND REMAND.
ISSUE NO. IX. THE TRIAL COURT ABUSED ITS DISCRETION BY
ORDERING APPELLANT TO PAY APPELLEE’S DEBTS ON THE
MAURICEVILLE RESIDENCE AND THE SILVERADO, WHERE TRIAL
PROOF DID NOT OVERCOME THE FAMILY CODE SECTION 8.051
REQUIREMENT THAT SEPARATE PROPERTY WOULD NOT AVAIL TO
SATISFY THESE NEEDS, THEREBY REQUIRING REVERSAL.
Here, the property division was entirely stipulated to by the parties and the
court held no hearings on anything but the setting of spousal maintenance for
Appellee. On p. 2 of the Final Decree, under “Agreement of the Parties,” it is stated:
“The Court finds that the parties have entered into an agreement for the division
of their marital property and debts as contained in this decree by virtue of a Rule
33
11 Agreement duly filed with the Court on August 5, 2014, along with the
testimony of the parties indicating their consent to this agreement. To the extent
permitted by law, the parties stipulate the agreement is enforceable as a contract.
The Court approves the property and debt division agreement of the parties as
contained in this Final Decree of Divorce...” (excerpted in pertinent part from
C.R., I:27)
While Appellant acknowledges that both he and Appellee were original
signatories on the mortgage for the house which Appellee was awarded in the
property division, which was arrived at by informal mediation at their attorney’s
offices before being stipulated to as contractually binding, this same property
division agreement awards the entire debt for the Mauriceville house and Silverado
truck to Appellee (CR, I:32-33).
Under Texas law, when a portion of a final court order is based on terms of
any settlement agreement reached by the parties, the trial court has no power to
supply additional terms, provisions, or conditions not previously agreed upon by the
parties. In the Interest of L.T.H., R.R.H., & A.W.H., 418 S.W.3d 876, 882(Tex. App.
Dallas 2013, pet. denied), citing McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex.
App. Dallas 1992, writ denied). This rule is more fully stated (in pertinent part):
[15-18] An agreed judgment which is based on a settlement agreement must be in
literal or strict compliance with the terms of the settlement agreement. Vickrey v.
American Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976); Arriaga v. Cavazos, 880
S.W.2d 830, 833 (Tex. App. San Antonio 1994, no writ). A trial court has no power
to supply terms, provisions or conditions not previously agreed upon by the
parties. Tinney v. Willingham, 897 S.W.2d 543, 544 (Tex. App. Fort Worth 1995, no
writ); McLendon v. Mc Lendon, 847 S.W.2d 601, 610 (Tex. App. Dallas 1992, writ
denied); Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex. App. San Antonio 1983, no
writ). If the terms of an agreed judgment conflict with the terms of the settlement
agreement, the judgment will be unenforceable. Clanin v. Clanin, 918 S.W.2d 673,
34
678 (Tex. App. Fort Worth 1996, no writ);...A judgment based on a judicial error
must be reversed and remanded to the trial court for the entry of an agreed
judgment that conforms to the terms of the parties’ agreement. Clanin v. Clanin, 918
S.W.2d at 678; McLendon v. McLendon, 847 S.W.2d at 610….
Donzis v. McLaughlin, 981 S.W.2d 58, at 63 (Tex. App. San Antonio 1998, no pet.).
Accord: In re T.B., 2009 WL 891882 (Tex. App. San Antonio April 3, 2009)(unpub.);
Sanchez v. Sanchez, 2008 WL 3971274 (Tex. App. Corpus Christi 2008)(unpub.).
All similar cases are based on the rules enunciated in Vickrey v. American Youth
Camps, Inc., 532 S.W.2d 292 (Tex. 1976)(per curiam), which holds, in pertinent part:
…A final judgment which is founded upon a settlement agreement reached by the
parties must be in strict or literal compliance with that agreement. Wyss v. Bookman,
235 S.W. 567 (Tex.Comm.App. 1921); Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d
786 (1941).
The Ninth Court of Appeals itself recently ruled in an unpublished opinion:
…When a trial court renders judgment on the parties’ settlement agreement, the
judgment must be in strict compliance with the terms of the agreement. Patel, 985
S.W.2d at 252 (citing Vickrey v. Am. Youth Camps, Inc... ‘The trial court has no
power to supply terms, provisions, or conditions not previously agreed to by the
parties.’ Keim, 943 S.W.2d at 946. The trial court does have the authority to divide
the community estate to the extent not set forth in the parties’ settlement
agreement.
Clanin v. Clanin, 918 S.W.2d 673, 677-78 (Tex. App. Fort Worth 1996, no writ).
However, if the terms of the court’s judgment conflict with the terms of the settle-
ment agreement, the judgment is unenforceable. Id. at 678. Moreover, generally, a
court’s modifications to settlement agreements are grounds for reversal only where
the modifications ‘add terms, significantly alter the original terms, or undermine the
intent of the parties.’ Beyers v. Roberts, 199 S.W.3d 354, 362 (Tex. App. Houston [1st
Dist.] 2006, pet. denied)(citing Keim, 943 S.W.2d at 946).
Pohla v. Pohla, No. 09-09-00023-CV, 2010 WL 877555 (Tex. App. Beaumont March
11, 2010)(not desig. for publication)(emphasis added).(Because Pobla, Id., was
decided by the Beaumont Court, and this case originates from that District, we cite
it as author- ty.) See In re A.D., No. 14-12-00914-CV (Tex. App. Houston [14th Dist.]
2014), fn. 1.
35
The published case relied on by Pobla, Ibid., is determinative that the portions of
the Decree which vary or contradict the Rule 11 Stipulation herein are
unenforceable:
…[13-16] A final judgment founded upon a settlement agreement must be in strict
compliance with the agreement. Vickrey v. American Youth Camps, Inc., 532 S.W.2d
292 (Tex. 1976); In Matter of Marriage of Ames, 860 S.W.2d 590, 594 (Tex. App. –
Amarillo 1993, no writ); see TEX.FAM.CODE ANN. # 3.631(b). The trial court
has no power to supply terms, provisions, or conditions not previously agreed to
by the parties. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (1939);
McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App. Dallas 1992, writ denied). It
can merely approve or reject the agreement. See TEX.FAM. CODE ANN. #
3.631(b)….
If an appellate court determines that the decree contains terms and provisions
dividing the community property that were never agreed to by the parties, it must
reverse the judgment and remand the cause. Ames, 860 S.W.2d at 594….
…[17] The final decree did in fact contain terms and provisions to which the
parties did not agree and which were not embodied in the Rule 11
Stipulation…Such a ruling would authorize a trial court to approve an agreement
while nevertheless imposing additional financial burdens upon a litigant arising from
orders entered by the court during the pendency of the cause, obligations which may
be so onerous as to skew the desirability of the settlement. In that context, the
parties would be unable to complain on appeal that the court’s judgment deviated
from the terms and conditions of the settlement agreement. We conclude such a
ruling would be in violation of TEX.FAM. CODE ANN. # 3.63….Accordingly, the
judgment is reversed and remanded.
Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App. El Paso 1997, no pet.)(emphasis
added). Accord:Engineer v. Engineer, 187 S.W.3d 625 (Tex. App. Houston [14th Dist.]
2006, no pet.); In the Matter of the Marriage of Nolder, 48 S.W.3d 432, 434 (Tex. App.
Texarkana 2001, no pet.).
Here, the Final Decree was not in compliance with the Rule 11 Stipulation
and settlement agreement which had been signed by both parties and filed before
trial on August 5, 2014(CR, I:24).Opposing counsel, Mr. Carlton, even informed the
court at trial “we have settled the property and the debts”(RR, II:6, l. 10). Then, in
36
Respondent’s Exhibit #2(RR, IV:Exh. #2), Mr. Carlton introduced the debts for the
house note ($879, corrected to $979/month at RR:II:16, l. 2) and “car note” on the
Silverado truck ($225/mo.), both of which had been awarded to Appellee as debts in
the contractual property settlement agreement, -now as “Monthly Living Expenses”
(Resp. Exh. #2).
Briefly, Mr. Carlton contended that, because Appellee only received a
monthly Social Security disability check of $806/month (minus $100 for insurance
through Medicare) as income, the debts she had just contractually assumed, now
were “minimum needs” which Appellant had to pay the notes on.
Simply because the parties had agreed that Appellee would pay all the debts
on the community property she was being awarded, being the homestead and a
Silverado truck, and this was stipulated to as the completed property division
(without hearing), and then, in a contested hearing on spousal maintenance, at
Appellee’s bidding, the court found that Appellant would pay both notes on the
homestead and the truck over the next 7 years as maintenance, -the Decree is
unenforceable and must be reversed. Converting a debt into spousal maintenance is
a change in the substantive division of the property, and also cannot be enforced
under Tex. F.C. # 9.007.
Everett v. Everett, 421 S.W.3d 918, 921 (Tex. App. El Paso 2014, no pet.).
In our case, Appellant did not sign the Final Decree of Divorce as it was
tendered by Appellee’s counsel, due to the new language related to spousal support.
37
Thus, while the Rule 11 Stipulation portion of the Decree remains binding (RR,
II:65, l. 9), the remainder of the Decree is not enforceable. Tex. Civ. Pract. & Rem.
Code Section 154.071(a)(West 2011). See footnote 3 of Koelm v. Koelm, 2011 WL
2162879(Tex. App. Austin June 2, 2011), citing authorities which show that Tex.
C.P.R.C. #154.071 controls in reading our Decree, and not statutes such as Family
Code Sec. 6.602.
A. Appellee already had secured her separate property which satisfied her
minimum reasonable needs for transportation and housing.
Appellee willingly advanced the above arguments despite the fact that she
already owned “free and clear” a lake house at Toledo Bend Dam, and a classic 1965
Mustang fastback (valued at over $23,000.00). Under Tex. Fam. Code # 8.051(in
pert. part):
…the court may order maintenance for either spouse only if the spouse seeking
maintenance will lack sufficient property, including the spouse’s separate property,
on dissolution of the marriage to provide for the spouse’s minimum reasonable
needs and:….
(2) 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;
Neither of the criterion stated are dependent on one another, and maintenance may
be denied solely for Appellee’s failure to meet the underlined portion above. Tomsu
v. Tomsu, 381 S.W.3d 715, 717(Tex. App. Beaumont 2012, no pet.). Here, as in
Tomsu, Id., at 718, Appellee had not tried to find any employment or obtain skills to
do so.
38
But, even though the primary purpose of maintenance is to provide
necessaries, or a ‘subsistence,’ the trial court not only re-opened the property
division, and reassigned the house and car payments to Appellant, making the
Decree unenforceable as to these, but also ignored the facts that Appellee had a
good place to stay (valued at $45,000.00, at RR, II:31), which she owns free and
clear (RR, II:31, l. 25), and has dependable transportation, a classic Mustang worth
over $23,000. Because Appellee turned 65 on September 26, 2014 (RR, II:10, l. 17),
does not work, and is eligible for full Social Security in addition to her disability
(which she does not receive [RR, II:12, l. 22-23]), she no longer needs 2 vehicles and
a big house in Mauriceville.
This re-division also means that the property division was no longer at a
50%-50% parity or equality, as Mr. Carlton repeatedly sought to establish it initially
was (RR, II:22, l. 14-16; II:58, l. 22). See Everett, supra. Hence, Appellee cannot have
her cake and eat it, too. To honor the parties’ contractual settlement, which we
would still like to maintain, Appellee must find another way to handle the debts
which she acquired contractually in the Final Decree of Divorce (C.R., I:32-33). See
Everett, supra.
Further, a party or her counsel cannot lead a trial court into error and then
complain about it on appeal. Keith v. Keith, 221 S.W.3d 156, 172 (Tex. App. Houston
[1st Dist.] 2006, no pet.), citing Texaco, Inc. v. Pennzoil, Inc., 729 S.W.2d 768, at 835
(Tex. App. Houston [1st Dist.] 1987, writ ref’d. n.r.e., cert. dism’d. 1988), and Saper v.
39
Rodgers, 418 S.W.2d 874, 877 (Tex. App. Houston [1st Dist.] 1967, writ ref’d. n.r.e.).
As stated in Keith, supra, at 172, Appellee is estopped from making argument on
issues where Appellant is court-ordered to pay debts she had already contractually
assumed in the Rule 11 Stipulated Agreement.
Appellant respectfully prays for reversal and remand for further re-trial of the
issues appealed.
ISSUE NO. X. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
OFFSETTING INCOME RESOURCES READILY AVAILABLE TO
APPELLEE, WHERE HE IMPUTED LONG-TERM LARGE BONUSES TO
APPELLANT, AND DID NOT OFFSET FACTORS LIKE APPELLANT’S
HOUSING EXPENSES IN SETTING THE BASE AMOUNTS USED TO
CALCULATE SPOUSAL MAINTENANCE.
ISSUE NO. XI. ALTERNATIVELY, IT VIOLATED ARTICLE I, SECTION
3a, OF THE TEXAS CONSTITUTION, TO IMPUTE INCOME TO
APPELLANT, WITHOUT ALSO IMPUTING SOURCES OF INCOME
ATTRIBUTABLE TO APPELLEE AT HER AGE OF 65 AND POST-
DIVORCE, IN CALCULATING HER MINIMUM REASONABLE NEEDS.
Article I, Sec. 3a, Texas Constitution, also known as the Equal Rights
Amendment, reads in its entirety:
Sec. 3a. Equality under the law shall not be denied or abridged because of sex,
race, color, creed, or national origin. This amendment is self-operative.
Here, the property division was entirely stipulated to by the parties and the court
held no hearings on anything but the setting of spousal maintenance (RR, II:passim).
However, Appellee’s ‘needs’ as interpreted by the trial court, include that Appellant
pay a $979/month note on the parties’ house (already awarded to her with the debt
40
thereon as part of the stipulated contractual property division which the court had
no power to alter - see discussion elsewhere in this Brief), when she was also
awarded her lake-house as her separate property, although no offset was accredited
to Appellant for rentals Appellee should be receiving via the lake-house. Also,
Appellant was not given credit for income which Appellee will receive from her first
(now deceased) husband’s retirement plan and pension, now that she is divorced
(See RR, II:28, l. 21-p. 29, l. 15). Also, because the Mauriceville residence Appellant
will now be paying the note on was a part of the property division, -when it is paid
for, he should at least receive reimbursement for his note payments made post-
divorce, which was pleaded for in his Amended Petition (C.R., I: 8), -not only due to
the parties’ contractually enforceable stipulated settlement agreement made a part of
the Final Decree, but also under Article I, Sec. 3a, in part because the parties had
sought to equalize the property settlement via their Rule 11 stipulated agreement
(R.R., II:58, l. 22; C.R., I:29, H-4).
It is now well-established in most states which have adopted an Equal Rights
Amendment (herein, E.R.A.), that spousal maintenance statutes which only provide
for maintenance to be paid to the wife, but not the husband, will be invalidated. For
example, Henderson v. Henderson, 327 A.2d 60, at 62 (Pa. 1974), states in pertinent
part:
…The law will not impose different benefits or different burdens upon the
members of a society based on the fact that they may be man or woman. Thus, as
it is appropriate for the law where necessary to force the man to provide for the
41
needs of a dependent wife, it must also provide a remedy for the man where
circumstances justify an entry of support against the wife. In short, the right of
support depends not upon the sex of the petitioner but rather upon need in view
of the relative financial circumstances of the parties.
Henderson v. Henderson, 327 A.2d 60, 62 (Pa. 1974).
Article I, Sec. 3a, of the Texas Constitution (Texas’ E.R.A.) also requires that
‘what is sauce for the goose is sauce for the gander,’ and vice-versa:
…The first step in a case invoking this provision is to determine whether equality
under the law has been denied. Any discrimination which occurred in the instant
case is clearly “under the law” because it is required by state statute. Our next
inquiry is whether equality was denied because of a person’s membership in a
protected class of sex, race, color, creed, or national origin….
…This is a gender-based distinction because only men are required to satisfy the
‘best interest’ test before being recognized as a parent….Therefore, we decide this
case on independent state constitutional grounds….
…we conclude that the Equal Rights Amendment is more extensive and provides
more specific protection than both the United States and Texas due process and
equal protection guarantees….
…Our reading of the Equal Rights Amendment elevates sex to a suspect
classification. Sex is clearly listed in the amendment along with other classifications
afforded maximum constitutional protection.
The appropriate standard is thus one which recognizes that the Equal Rights
Amendment does not yield except to compelling state interests….
In re Unnamed Baby McLean, 725 S.W.2d 696, 697-98 (Tex. 1987)(holding that a father
seeking to legitimate his child cannot be held to a higher standard of proof). See
Henderson v. Wietzikoski, 841 S.W.2d 101, 103(Tex. App. Waco 1992, pet. denied);
Dennis v. Smith, 962 S.W.2d 67(Tex. App. Houston [1st Dist.] 1997, pet. denied).
As noted elsewhere herein, although income is somewhat undefined for
purposes of Chapter 8’s calculations of maintenance, it is obvious that the court is to
rely on the comparative financial resources of the parties.
42
Here, for example, the court failed to take into consideration the amounts of
Social Security income in addition to disability income which Appellee will receive
because she turned 65 on September 26, 2014, approximately one month before
judgment was entered. This information was available to the court (RR, II:10, l. 17-
18).
Almost all community property states give a credit for Social Security at age
65, probably because it counts as ascertainable income, but also because receiving
inordinate sums of alimony make one increasingly ineligible for some federal
entitlement programs which would otherwise be available, and not be a burden to
either party. The following unpublished opinion is set forth here due to the power
of its reasoning:
…Nor do we find error in the court’s decision to reduce the support arrears by the
amount of the benefits plaintiff would have received had she applied at age sixty-five,
of his decision to reduce her alimony by that amount. As Judge Cohen clearly
indicated in her October 31, 2003 order, the parties agreed that defendant was
entitled to ‘a dollar for dollar credit’ for plaintiff’s Social Security benefits, when she
began receiving them at some point between ages sixty-two and sixty-five. We find it
inexplicable that someone in plaintiff’s financial circumstances would choose not to
apply for Social Security benefits, but in any event, we infer from Judge Cohen’s
order that the parties agreed that plaintiff would do so. Defendant was entitled for a
credit for the benefits that plaintiff received, and for those she could have received
had she applied for benefits at sixty-five instead of waiting until age sixty-seven.
We affirm on that point….
Milner v. Milner, 2014 WL 1096339 (N.J. Super. March 21, 2014). See Easter v. Easter,
2103 WL 53849 (Ky. App. Jan. 4, 2013)(unpub.)(after 62nd birthday maintenance to
be reduced by amount of Social Security benefits to be received).
43
Texas courts also commonly hold that the failure to consider other types of
offsets which are redeemable as actual income to the obligee is error. See Fitch v.
Fitch, 2013 WL 2610143 (Tex. App Dallas June 7, 2013)(unpub.)(3-4 items justified
offset against child support); Jourdan v. Jourdan, No. 04-10-00402-CV (Tex. App. San
Antonio 2011)(not designated for publication).
Appellee is likely to argue that some of these offset issues were not properly
pre served by objection. Appellant submits that is not a valid argument where the
issue is obvious, and Article I, Sec. 3a, Tex. Const., is self-operative. For example,
Appellee cannot live in both her city residence and her lake-house. Therefore, the
rental value of the lake-house should be calculated as a financial resource to her. The
same is true of her right to her late ex-husband’s pension benefits, which she can
now receive after divorce, a matter which was raised by Appellant at trial. (RR, II:28,
l. 15-p. 29, l. 14).
ISSUE NO. XII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING $5,000.00 IN ATTORNEY’S FEES TO APPELLEE’S
ATTORNEY FOR APPEALING THE AWARD OF SPOUSAL
MAINTENANCE WHERE THE ISSUES ON APPEAL EITHER CONCERN
ONLY, OR ARISE AS A RESULT OF, THE COURT-ORDERED SPOUSAL
MAINTENANCE AWARD.
ISSUE NO. XIII. THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING APPELLEE ATTORNEY’S FEES FOR HER APPEAL
REGARDING SPOUSAL MAINTENANCE AS A NECESSARY, WHEN
ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A NECESSARY IN
LITIGATION UNDER THE TEXAS FAMILY CODE.
ISSUE NO. XIV. THE TRIAL COURT ABUSED ITS DISCRETION
BECAUSE THE EVIDENCE WAS LEGALLY INSUFFICIENT TO AWARD
44
ATTORNEY’S FEES TO APPELLEE IN ADVANCE OF HER APPEAL AS A
NECESSARY, WHERE ATTORNEY’S FEES CANNOT BE CLASSIFIED AS A
NECESSARY IN LITIGATION UNDER THE TEXAS FAMILY CODE.
In its Temporary Orders issued on December 15, 2014, the trial court
ordered Appellant to pay $5,000 in attorney’s fees to Appellee’s attorney, Steve
Carlton:
“…by cash, cashier’s check, or money order on or before March 1, 2015 for
attorney’s fees and expenses, as additional temporary spousal support.”
The basis for this payment as stated in the Order reads:
“The Court finds that reasonable interim attorney’s fees and expenses to be paid by
JEFFERY DWAYNE BENOIT to BRENDA FAYE DRYDEN’S attorney are
necessary for STEVE CARLTON to properly prepare for appeal.”
Order of Judge Johnson, County Court at Law #2, on December 15, 2014
(emphasis added by underlining) (C.R., I:61).
Appellant submits that, by using this language, the trial court specifically
found that the attorney’s fees which were awarded for Appellee’s appeal constituted
a necessary for Appellee, which, from the language used, Appellee could not
otherwise afford.
In Tedder v. Gardner Allrich, L.L.P., 421 S.W.3d 651 (Tex. 2013), the Texas
Supreme Court ruled that, in family law cases, attorney’s fees may not be awarded as
necessaries to one spouse even where the other spouse may have statutory liability.
The Court categorically held that an award of fees as necessaries cannot occur. So,
45
with error appearing on the face of the December 15th Temporary Order (CR, I:61),
in its award of fees as a necessary, reversal is required herein.
A similar ruling had just been handed down:
…We hold that, in the absence of express statutory authority, a trial court does
not have discretion to characterize attorney’s fees awarded in non-enforcement
modification suits as necessaries or additional child support. Accordingly, we
reverse….
Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013).
The reasoning of the Tucker, Id., opinion indicates that there must be a Family
Code statute which specifically allows the award of attorney’s fees for a designated
purpose, for the trial court to be able to do so. See Tucker, Ibid, Part B, 419 S.W.3d at
296. These new holdings coincide not only with a logical extension of the expression
unius rule of statutory construction (discussed herein), but also with another doctrine
both of which act to preclude an award of attorney’s fees to Appellee in this case:
…The trial court does not have inherent authority to award attorney’s fees in a
divorce action. Pletcher v. Goetz, 9 S.W.3d 442, 447-48 (Tex. App. Fort Worth 1999,
writ denied); Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex. App. Houston [14th Dist.]
1989, writ denied), overruled on other grounds by Twyman v. Twyman, 855 S.W.2d 619
(Tex. 1993). The court is authorized to consider attorney’s fees as one of many
factors when making a just and right division of the marital estate….When
awarding attorney’s fees in a divorce action, the trial court has no authority to
direct one party to expend separate property funds on the other’s behalf for such
fees. Grossnickle v. Grossnickle, 935 S.W.2d 830, 847(Tex. App. Texarkana 1996, writ
denied).In this case, the trial court specifically awarded attorney’s fees as sanctions,
and it is apparent from the judgment and the record that the trial court did not
award the attorney’s fees as part of the division of the community property….
Toles v. Toles, 45 S.W.3d 252, 267 (Tex. App. Dallas 2001, pet. denied)(reversed for
abuse of discretion on this point) (excerpted in pertinent part).
46
Although under current statutes which derive from former Texas Family
Code Sec. 3.58, a trial court may award attorney’s fees in a SAPCR, or to protect a
property division or personal safety, none of these issues are at stake here, so
attorney’s fees for appellate representation are not implicated by the statute(s). In re
Garza, 153 S.W.3d 97, 101 (Tex. App. San Antonio 2004, no pet.). Walker v. Towslee,
677 S.W.2d 502, 503 (Tex. 1984)(fees only for protection of property or parties). See
In re Dryden, 52 S.W.3d 257, 264-65 (Tex. App. Corpus Christi 2001, no pet.)(no
jurisdiction to modify order under stat. that only retained some jurisdiction for
purpose of enforcing judgment).
A. The legislative history of Texas Family Code Section 6.709.
According to Vernon’s Texas Family Code # 6.709 (West 2006), the source
law from which Sec. 6.709 derives was former Tex. F.C. Sec. 3.58(h). The procedure
for hearings on temporary orders to protect persons or property has always required
Fourteenth Amendment, U.S. Constitution, Due Process, and an opportunity to be
heard, as described below (in pertinent part):
Tex. Fam. Code Ann. # 3.58(c)(Vernon 1993), provides, in pertinent part, as follows:
After a petition for divorce or annulment or to declare a marriage void is filed,
the court, on the motion of any party or the court’s own motion, may make an
appropriate order, including the granting of a temporary injunction, after notice
and hearing, for the preservation of the property and the protection of the parties
as deemed necessary and equitable, including an order directed to one or both
parties:
(4) ordering payment of reasonable attorney’s fees and expenses;….
47
The statute thus requires notice and a hearing before the court may award interim
attorney’s fees. This requirement of a hearing implies that the opposing spouse will
be afforded the normal right to participate in an adversarial hearing, rather than
merely the right to be present as a spectator at an ex parte hearing. See Black v.
Onion, 694 S.W.2d 52, 55 (Tex. App. San Antonio 1985, orig. proceeding). In the
present case, the trial court’s refusal to allow Post to participate through cross-
examination and the presentation of his own evidence amounted to a clear abuse
of discretion and a violation of his due process right to be heard. See…City of
Houston v. Houston Lighting & Power Co., 530 S.W.2d 866, 869 (Tex. Civ. App.
Houston [14th Dist.] 1975, writ ref’d. n.r.e.); Turcotte v. Trevino, 499 S.W.2d 705, 723
(Tex. Civ. App. Corpus Christi 1973, writ ref’d. n.r.e.);….. [collecting additional
authorities]…
Post v. Garza, 867 S.W.2d 88, 89-90 (Tex. App. Corpus Christi 1993, no pet.).
As stated by the Texas Supreme Court in a similar case:
…It is this Court’s opinion that # 3.58(c)(4) does not permit a summary order by
the trial court after judgment for payment of attorney’s fees. Further, # 3.58(c)
provides for an order for payment of reasonable attorney’s fees and expenses if, on
motion of any party or on the court’s own motion, the court grants a temporary
injunction after notice and hearing for the preservation of property and the
protection of the parties as deemed necessary and equitable. The order for payment
of attorney’s fees in the instant case is not in conjunction with a temporary
injunction for the preservation of property and protection of the parties. Section
3.58 does not allow a party to collect ‘interim’ attorney’s fees after the judgment of
divorce is rendered….
Walker v. Towslee, 677 S.W.2d 502, at 503 (Tex. 1984). See Wallace v. Briggs, 348 S.W.2d
523, 525-526 (Tex. 1961).
There in plain English are the words of the Supreme Court stating that the trial
court could not award the $5,000.00 in attorney’s fees as he did, without a
corresponding order of injunctive relief to protect property or personal safety.
In Texas, Temporary Orders pending appeal issued to protect either persons
or property are usually in the form of injunctive or declaratory relief, and are
48
designed to protect the status quo ante. In fact, the cases excerpted above say that is
the purpose of the statutes such as Tex. F.C. # 6.709 which are derived from former
Tex. F.C. #3.58. Section 6.709 itself states that:
…after notice and hearing, the trial court may render a temporary order
necessary for the preservation of the property and for the protection of the parties
during appeal, including an order to:
(1) require the support of either spouse;
(2) require the payment of reasonable attorney’s fees and expenses;….
The statute clearly indicates that the fees are related to the injunctive or other
ongoing relief, as the cases indicate, and not for arguing the pending appeal.
However, in our case, there was no on-going relief beyond spousal support, which
requires no monitoring. Further, a trial court may not make an unconditional
preliminary award of attorney’s fees for arguing an appeal, and likewise may not so
penalize a party for taking a successful appeal. Keith v. Keith, 221 S.W.3d 156, 171
(Tex. App. Houston [1st Dist.] 2006, no pet.). It is obvious therefore, that the
expressio unius est exclusion alterius canon of statutory construction applies. Translated
from Latin, these words mean that “the expression of one is the exclusion of the
other,” and at law, it means that, when the Legislature has used a term in one section
of the statute and has excluded it in another, the court will not imply the term where
it has been excluded. Meritor Automotive, Inc. v. Ruan Leasing, 44 S.W.3d 86, 90 (Tex.
2001). Generally, the Court will presume the Legislature had a reason for excluding
it. Smith v. Baldwin, 611 S.W.2d 611, 616(Tex. 1980). Here, both the caption of Tex.
Family Code Section 6.709(West 2006), and the provision to which the
49
subparagraphs are attached, all indicate the purpose of the subparagraphs are to
implement the expressed purpose of the general provision which they modify, which
is designed to provide on-going relief pendent lite only. We submit Section 6.709
cannot be read to provide fees for the argument of appeal, only fees for on-going
relief to protect the status quo, and that this is expressed clearly in the structure of
the statute itself.
Further, the Final Decree was signed on October 30, 2014 (CR, I:38), but the
Temporary Orders were not heard and signed until December 15, 2014. Meanwhile,
the court had lost its plenary jurisdiction after 30 days, other than to hold a hearing
on the Motion for New Trial, to enter Findings of Fact and Conclusions of Law, or
other things specifically allowed by law. The trial Judge based the award of
attorney’s fees solely on Tex. F.C. Sec. 6.709(RR, III:14, l. 3-5; RR, III:12, l. 4-7).
Because Tex. F.C. # 6.709 only applies where temporary orders for the protection
of property or people are issued, or such injunctive relief is granted, and this is not
at stake here other than spousal support for Appellee, which was not the stated basis
of the attorney’s fees, the trial court was acting in excess of its jurisdiction.
Mr. Carlton also did not make an adequate prove-up of his attorney’s fees on
the record. For example, he never stated his hourly rate, or how many hours he was
devoting to the appeal, if he could have known that then. Again, just as appears on
Appellee’s Monthly Expense Sheet (RR, IV: Respdt’s Exh. #2), you saw a rubric,
such as “Various Sundries,” and an inflated round number. This time, Mr. Carlton
50
told you “Attorney’s Fees” were $10,000, without itemization. The majority rule in
the United States is that an award of attorney’s fees for work done should not occur
until the work is completed and the arguments being made by the party requesting
such fees have been found to be meritorious. Otherwise, such an award is like
getting the proverbial cart before the horse, and is premature.
Further, the December 15, 2014 Temporary Orders appear to be designed to
discourage Appellant from pursuing his appeal. Among others, said Orders
expressly assess $1,625/month as spousal support against Appellant pendent lite,
and then refuses to allow such payments either to be deducted as alimony, or
counted against the court’s previous statutory maximum 7-year award of spousal
maintenance. See Tex. Fam. Code Ann. # 8.054(a)(1)(B).
As to the language negating Appellant’s ability to deduct support payments,
because only Appellant can deduct these payments from his income tax, this seems
aimed solely at hurting Appellant while he pursues his appeal. (See C.R., I:61.)
Appellant respectfully prays for reversal and reform of the trial court’s
judgment(s) as to attorney’s fees awards; and, in the alternative for reversal and
remand.
ISSUE NO. XV. THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPUTING A NON-RECURRENT AND UNDEPENDABLE SALARY
BONUS (OR BONUSES) TO APPELLANT BEFORE CALCULATING THE
AMOUNT OF SPOUSAL MAINTENANCE APPELLANT WOULD PAY
ANNUALLY FOR 7 YEARS BY ASSESSING THE FULL 20% ALLOWED BY
STATUTE.
51
Maintenance is defined in Tex. Fam. Code # 8.001(1)(West Supp. 2012).
Further, the Texas Family Code mandates that the trial court may not require a
spouse to pay monthly more than the lesser of $5,000, or 20% of the spouse’s
average monthly gross income. Tex. Fam. Code # 8.055 (2012). Some of the factors
involved in determining maintenance include: each spouse’s ability to provide
for…minimum reasonable needs independently, considering that spouse’s financial
resources on dissolution of the marriage –Tex. F.C. #8.052(1); a spouse is not
qualified for maintenance if (s)he is earning sufficient income to provide for these
minimum reasonable needs- Tex. F.C. Sec. 8.053(a)(1);factors including the age,
employment history, earning ability, and physical and emotional condition of the
spouse seeking maintenance – Tex. F.C. #8.052(4); the property brought to the
marriage by either spouse - Tex. F.C. #8.052(8). There are a total of eleven such
factors in Texas Family Code #8.052, although the above seem to be the most
germane to this appeal (emphasis added by underlining).
What “gross income” consists of for purposes of calculating maintenance is
set forth in Tex. Fam. Code Sec. 8.055(a-1), of which subsection (1)(A) states as
follows: (a-1) For purposes of this chapter gross income:
(1) includes:
(A) 100 percent of all wage and salary income and other compensation for
personal services (including commissions, overtime pay, tips, and bonuses);….
Here, the problem arises because the trial court attributed a future late-in-the-year
unaccrued bonus of $40,000.00 to Appellant during the last year (2014) used in Mr.
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Carlton’s 3-year calculated average of the basis of Appellant’s earning capacity. The
$40,000 figure is based on a 2013 bonus, even though the 2012 bonus was smaller.
But 20% of this highball speculative average amount was then set as what Appellant
must pay for the entire 7 years that maintenance runs once it starts at the end of this
appeal. Appellant testified that based on his past experience with his employer, that
he might never receive such bonuses, either of that size or any at all. Appellant
normally earns around $65,000/year (without bonus) (RR, II:51, l. 3). As to bonuses,
his company tells him there is no guarantee, either as to a bonus, or its amount, and
all of it is subject to the company’s profit margin (RR, II:51, l. 10-18). The employer,
NGI Technical Services, L.L.C., is not a national conglomerate, and there is also no
guarantee they will even be there 7 years from now.
The central issue is whether the trial court may impute a future bonus amount
to Appellant as income, when Appellant may never receive such a bonus or any at
all?
Part of the problem is that, other than the highly consistory listing of what
constitutes “gross income” given by Tex. F.C. # 8.055(a-1), “income” itself is not
defined very thoroughly in Chapter 8 of the Texas Family Code. “Income” is
defined in the Uniform Interstate Family Support Act to include “earnings or other
periodic entitlements to money from any source and any other property subject to
withholding for support under the law of this state.” Tex. Fam. Code # 159.102(5)
(West 2014). Other than this definition used in enforcement matters, the rules of
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statutory construction appear to give the word “income” its ordinary meaning for
Chap. 8 purposes. Tex. Gov’t. Code Sections 312.002(a), 311.011(a)(West
2013);FKM Partnership, Ltd., v. Bd. of Regents, 255 S.W.3d 619, 633 (Tex. 2008)(absent
definition or technical meaning, words are construed according to plain meaning,
unless absurdity results).
Both Webster’s dictionaries define “income” as a recurrent benefit: “a gain or
recurrent benefit usually measured in money that derives from capital or labor; also,
the amount of such gain received in a period of time.” MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 630 (11th ed. 2003);“a gain or recurrent benefit
that…derives from capital, labor, or a combination of both.” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1143 (1981). Thus, to be income for
purposes of calculating spousal maintenance, a bonus would have to be a recurrent
benefit, or as stated in Tex. F.C. Sec. 159.102(5)(West 2014)(above), an
“entitlement,” rather than a mere possibility.
Generally, if an undefined word is determined to have a specific ordinary or
legal meaning, in the absence of legislative intent to the contrary, the word is
presumed to have the same meaning throughout the Act. Paddock v. Siemoneit, 218
S.W.2d 428, 432 (Tex. 1949); Southwest Properties, L.L.P. v. Lite-Dec of Texas, 989
S.W.2d 69, 71 (Tex. App. San Antonio 1998, pet. denied).
Here, in order to obtain the $8,122.75 monthly gross income for Appellant
which the trial court lists in Finding of Fact #10 (C.R., I:58), the Court averaged
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Appellant’s previous 2 years’ income, and imputed a $40,000.00 bonus to Appellant
for 2014, which Appellant had not received yet (any bonus he receives, which always
vary in amount, are toward the end of the year, if they occur), and which, as
Appellant stated, he may never receive again. (RR, II:51) Thus, the court averaged 3
years income, including adding in an uncertain, but possible bonus for the last year
of 2014. In other words, the 2014 $40,000 bonus averaged into his income
calculation, is not actual income, and historically, his bonus is not dependable, and
may be non-recurrent in any form. The Texas Family Code should limit the setting
of alimony for 7 years to predictable income. Due to the lack of Texas law on point,
please see this New Jersey case reviewing inclusion of a bonus taken from a 2005
Order to set alimony in 2007:
…Here, the court imputed income to both parties, utilizing the amounts on which
the parties based the obligation set forth in the final judgment. That amount may be
reasonable and fair, however, in the absence of any proofs indicating that defendant
has the ability to earn the imputed amount, we cannot properly evaluate the
reasonableness or the fairness of the imputation. Even if it was not unforeseeable at
the time of the divorce that defendant might not be able to match his former salary,
that should not bind him interminably to the amount stipulated in the divorce
decree in good faith, if changed circumstances can be shown….As we have
observed, ‘[u]nderpinning the basis of every support order is the proposition the
payor has the ‘ability to pay’ the amount set forth or agreed to.’ …
We are not satisfied from our review of the record that the court made the
requisite factual finding that defendant has the actual capacity to earn the income
imputed to him. Accordingly, we remand for further proceedings….
Casole v. Casole, No. A-4654-06T2(Superior Ct. of New Jersey, App. Div’n., March
31, 2008) (per curiam).
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Many states also refuse to base support calculations on anticipated, but
uncertain, pay increases due to overtime or odd jobs that are not shown to be
dependable. See Cole v. Cole, 384 N.W.2d 312, 316 (S.D. 1986). How much more
uncertain and tangential is an end-of-year bonus which might occur, but has no set
criteria?
It should also be noted that the parties’ property agreement was for Appellee
to receive the homestead estate, as well as her separate property lake-house, which
was the bulk of the parties’ landed estate. In most states, the maximum percentage
which can be awarded as maintenance is based on the total value of both estate and
income, in order to be just and reasonable. Here, no values are imputed to
Appellee’s awarded separate and community property estate in setting spousal
maintenance.
There must be more than mere guesswork about the receipt of income used
to calculate maintenance. Otherwise, courts are granting wish-fulfillment, and if
wishes are to become horses, then beggars will ride.
A wage withholding order will be used to enforce payment of the
$1,625/month in maintenance (RR, III:15, l.9). In order to be equitable, such an
Order should contain a step-down clause which would take effect the year that
Appellant does not receive a bonus, or receives a diminished one. Likewise, the
$1,625/month amount should step down by $225.00/month when Appellee’s car
note on her Silverado truck is paid off about 2 years from now, if Appellee is upheld
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on appeal on that portion of the spousal maintenance award. If one goes by what
the court purportedly intended by fixing maintenance at this level for 7 years, step-
downs would prevent Appellant from being gouged. Appellant respectfully prays
that this case be reversed and remanded for further hearings or trial.
CONCLUSION AND PRAYER
For the above and foregoing reasons, Appellant respectfully prays that the
Court of Appeals reverse and render, or reform, the trial court’s Judgment(s) where
the issues are decided on the merits of applicable law, and alternatively, to reverse
and remand where necessary. Because the trial court is a County Court at Law,
Appellant would request that the Court of Appeals consider instructions or other
recommendations on remand, if deemed appropriate. Appellant prays for general
relief, and that court costs be awarded against the unsuccessful party.
Respectfully submitted,
/s/ Jack Lawrence
JACK LAWRENCE
ATTORNEY FOR APPELLANT
5570 WINFREE
BEAUMONT, TEXAS77705
(409) 833-0894 office
(409) 835-4567 fax
SBOT #12043800
hirelaw@sbcglobal.net
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CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing
Appellant’s Amended Brief has been delivered to counsel for Appellee, Jamie D.
Matuska via electronic filing service, on May 7, 2015, in accordance with the
applicable rules of procedure.
/s/ Jack Lawrence
JACK LAWRENCE
SBN #12043800
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CERTIFICATE OF COMPLIANCE
I do hereby certify that the above and foregoing Appellant’s Amended Brief
in Jeffery Dwayne Benoit v. Brenda Faye Benoit, contains 11,857 words beginning the
count at the first page of the Summary of Argument and ending the count above the
signature block on page 57, but not including certificates such as certificates of
service.
The Statement of Facts contains 226 words, bringing the total for purposes of
the Texas Rules of Appellate Procedure to 12,083 words contained in the Brief.
Any other pages are not here counted for these purposes. This Certificate is
made pursuant to Rules 9.4(i), Texas Rules of Appellate Procedure.
/s/ Jack Lawrence__
JACK LAWRENCE
SBN #12043800
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