Rogelio Castro Romero v. Vickie Castro ( 2021 )

Opinion issued August 3, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00785-CV
———————————
ROGELIO CASTRO ROMERO, Appellant
V.
VICKIE CASTRO, Appellee
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court Case No. 18-1749-393
MEMORANDUM OPINION
Appellant Rogelio Castro Romero appeals the trial court’s final decree of
divorce awarding appellee Vickie Castro spousal maintenance. In one issue, Romero
contends the trial court erred in awarding Castro spousal maintenance under Section
8.051(2)(A) of the Texas Family Code.1
We affirm.
Background
Romero and Castro were married in April 2014 and separated in September
2016. Romero filed for divorce in 2018. Castro answered, filed a counter-petition
for divorce, and requested spousal maintenance due to an ongoing disability.
At the hearing on the parties’ petitions for divorce, three witnesses testified:
Romero, Castro, and Castro’s mother Jenny Cummings. On the issue of her request
for spousal maintenance due to a disability, Castro testified that she fell down the
stairs on April 19, 2016. Romero did not immediately take her to the hospital for
medical attention, but instead waited until April 22, 2016, three days later. In
contrast, Romero testified that the accident happened in the evening, and that
immediately after the accident Castro said she was fine and went to sleep. He
testified that after he went to work the next day, Castro called him and said she was
not feeling well. He left work and took her to the hospital.
1
Pursuant to its docket-equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See Misc. Docket No. 19-9091 (Tex. Oct. 1,
2019); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We
researched relevant case law and did not locate any conflict between the precedent
of the Court of Appeals for the Second District and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
Castro testified that, as a result of the fall, she lost her vision for five days and
experienced seizures and memory loss. She was admitted to Harris Methodist
Hospital, where she was diagnosed with a traumatic brain injury (“TBI”) with severe
memory loss. Castro stayed in the hospital for several days. She takes a number of
medications as a result of her accident, including Seroquel, Propranolol, Paxil,
Dexilant, Sumatriptan, and a blood pressure medication, all of which were
prescribed by her neurologist.
Castro testified that she has trouble forming words, “struggle[s] with some
words and the understanding . . . processes of things,” still has “issues” with her
vision, and only recently began to get some of her memories back and taught herself
how to read. Castro admitted that she was able to drive a car and do math with a
calculator, and that her short-term memory was “[b]etter than it used to be.” Castro
also admitted that she became pregnant at the end of 2016 into 2017, but that she did
not know if the father was Romero or another man named Chauncey Friend. Castro
testified that Friend “pulled a gun” on her and “pulled the trigger trying to kill [her.]”
But “[w]hen the gun did not fire,” Friend hit her over the head with it. Friend was
arrested and is currently serving a six-year sentence for this incident.
Castro testified that, at the time of the hearing, she was unable to get a job
because she had not been “released to go to work yet” by her family doctor. Castro
testified that “if [she] could work, [she] wouldn’t ask for anything.” But she was
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“not to the point yet that [she] can go get a job . . . , even though . . . [she] would
love to because [she] can’t live on what [she] make[s].” Castro testified that she
receives Social Security disability benefits payments.
Castro’s mother, Jenny Cummings, testified that Castro was on several
medications following the accident that she believes affect Castro’s demeanor and
make Castro “volatile.” Cummings testified that Castro still suffers from seizures
and that the medications Castro takes cause “tremendous headaches.” She further
testified that Castro is “gaining ground” but is not “back where [she] need[s] to be.”
Cummings testified that she has seen Castro searching online for jobs, and that
Castro applied for but did not get one job in particular because the medications she
was taking showed up on the drug test. She further testified that Castro “can’t get a
job because nobody will hire [her] because of the medication . . . because [she] get[s]
these tremendous headaches.”
At the conclusion of the hearing, the trial court granted the divorce, and
awarded each party their tangible personal property in their possession. The trial
court found that Castro was disabled, that she was disabled during the course of the
marriage, and that she therefore qualified for spousal maintenance under Section
8.051(2)(A) of the Texas Family Code. In support of its decision to award spousal
maintenance, the trial court relied on the evidence that Castro receives Social
Security disability payments, as well as the testimony from Castro and Cummings.
4
On June 14, 2019, the trial court entered the final decree of divorce, which
included the following provision for spousal maintenance:
The Court finds that VICKIE CASTRO ROMERO is eligible to receive
maintenance pursuant to Section 8.051(2)(A) of the Texas Family
Code. IT IS ORDERED that ROGELIO CASTRO ROMERO shall pay
as maintenance to VICKIE CASTRO ROMERO $567.00 per
month . . . until the earliest occurrence of one of the following
events . . . an order of the court following an annual review, at the
request of the Court or Motion by either party, which may be conducted
in May of each year, to determine whether or not VICKIE CASTRO
ROMERO has made reasonable efforts to obtain employment, and
whether the disability is ongoing.
Romero moved for a new trial on July 12, 2019, asserting there was
insufficient evidence presented at the hearing to support a finding that Castro was
entitled to spousal maintenance. The motion for new trial was overruled by operation
of law, and Romero appealed.2
Spousal Maintenance
In his sole issue on appeal, Romero argues that the trial court erred in
awarding Castro spousal maintenance because Castro “did not meet the specific
eligibility requirements that [her] physical or mental disability was incapacitating.”3
2
Romero’s notice of appeal was filed on September 13, 2019, one day after it was
due. TEX. R. APP. P. 26.1(a)(1). Romero moved for an extension of time to file the
notice of appeal, which the Court of Appeals for the Second District granted, making
his September 13 notice of appeal timely.
3
Castro did not file an appellate brief. She did, however, file a letter dated April 13,
2021, the date of submission of this appeal, in which she argued that this appeal
should be denied because her testimony alone was enough to support the trial court’s
finding on spousal maintenance. Because Castro did not file this letter or an
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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 Worth 2008, pet. denied); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—
Dallas 2001, pet. denied). The trial court may exercise its discretion to award spousal
maintenance if the party seeking maintenance meets specific eligibility
requirements. Brooks, 257 S.W.3d at 425; Pickens, 62 S.W.3d at 214–15. 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; Dunn v.
Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied);
Pickens, 62 S.W.3d at 214.
B. Analysis
The trial court awarded Castro spousal support based on Texas Family Code
Section 8.051, which allows a spouse in a divorce proceeding to seek spousal
maintenance if that spouse lacks sufficient property to meet minimum reasonable
needs and cannot support herself due to an incapacitating physical or mental
disability. TEX. FAM. CODE § 8.051(2)(A). As noted above, Romero argues that
appellee’s brief by the deadline and did not move for an extension of time in which
to file a brief, despite notice from this Court to do so, we do not consider her letter
in our analysis.
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under Section 8.051(2)(A), only “incapacitating” disabilities that cause a spouse to
be unable to earn sufficient income to meet his or her reasonable needs will justify
an award of spousal maintenance. Because Castro was able to perform everyday
functions, such as drive a car and have sexual relations with another man
immediately after the parties separated, and became involved in a violent altercation
with another man who hit her over the head with a gun, Romero argues that Castro
cannot be described as having an incapacitating disability.
In Pickens, the Dallas Court of Appeals considered the issue of the “quantum
of evidence required to prove incapacity in a spousal maintenance action.” 62
S.W.3d at 215–16. The court rejected the argument that an incapacitating disability
must be established through expert testimony and medical evidence and held that
“[a]bsent a statutory requirement to the contrary, testimony on incapacity need not
be limited to experts; a fact finder may reasonably infer incapacity from
circumstantial evidence or the competent testimony of lay witnesses.” Id. at 215.
The court concluded that “the testimony of the injured party will support a finding
of incapacity even if directly contradicted by expert medical testimony.” Id. at 216.
The Fort Worth Court of Appeals, the court from which this case was
transferred, has cited Pickens favorably for the proposition that an individual’s
incapacity may be established through the individual’s testimony alone. Brooks, 257
S.W.3d at 425–26. In Brooks, the trial court awarded the wife spousal maintenance
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based on her testimony that she suffered an incapacitating physical disability. Id. at
424. The wife testified that her health started deteriorating about three years before
trial and that she had three discs in her back “that were out.” Id. at 425. She also
testified that she took epidural steroid injections every six months for about six
weeks that affected her ability to work. Id. Additionally, the wife testified that, while
she was being treated for her back, she had a bone density test performed that
revealed osteoporosis, and that the osteoporosis prevented her from working because
her bones were so brittle that she could break her back, leg, or foot by stepping
wrong. Id. The husband challenged the award, arguing there was insufficient
evidence of an incapacitating disability because the evidence consisted only of the
wife’s own testimony without any supporting medical evidence of her disability. Id.
at 424–25. The court, citing Pickens and two cases from the Corpus Christi Court of
Appeals favorably,4 held there was sufficient evidence to support the trial court’s
conclusion that the wife suffered from an incapacitating disability. Id. at 426.
4
See Smith v. Smith, 115 S.W.3d 303, 308–09 (Tex. App.—Corpus Christi 2003, no
pet.) (relying on Pickens and holding that trial court did not abuse its discretion in
awarding spousal maintenance based on husband’s testimony that aneurysm left him
incapacitated, despite wife’s testimony that she did not think disability was
incapacitating); Lopez v. Lopez, 55 S.W.3d 194, 199 (Tex. App.—Corpus Christi
2001, no pet.) (holding that trial court did not abuse its discretion in awarding
spousal support for incapacitating disability—diabetes—based on wife’s testimony
even though husband testified he did not think wife’s diabetes was incapacitating).
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Like the wife in Brooks, Castro did not introduce any medical records into
evidence and did not offer any expert testimony at trial. She did, however, testify
that she was disabled after suffering a fall in 2016, which resulted in her being
diagnosed with a TBI. Romero did not dispute her diagnosis. Instead, he testified
about the accident and confirmed that Castro was in the hospital for several days as
a result. Castro testified that she still suffers from memory loss, vision problems, and
seizures, and that she takes several medications as a result of the accident. Finally,
Castro testified that she receives Social Security disability benefits. Cummings
confirmed that Castro still suffers from seizures and “tremendous headaches,” and
that she is not “back where [she] need[s] to be.” Despite Romero’s argument to the
contrary, this is some evidence that the current symptoms of Castro’s disability cause
her to be incapacitated.
We acknowledge that there is some evidence that Castro can perform certain
tasks or engage in certain activities despite her disability, including driving, reading,
and engaging in sexual relations. This does not, however, mean that Castro’s
physical disability could not be “incapacitating,” particularly in light of the evidence
detailed above. See, e.g., Brooks, 257 S.W.3d at 425–26 (holding there was sufficient
evidence of wife’s incapacitating disability even though husband did not think
disability was incapacitating and wife was able to perform some tasks outside the
home, including assisting elderly woman with running errands and going to doctor);
9
see also Dunaway v. Dunaway, No. 14-06-01042-CV, 2007 WL 3342020, at *6
(Tex. App.—Houston [14th Dist.] Nov. 13, 2007, no pet.) (mem. op.) (recognizing
there was evidence wife could cook, clean, drive, perform household chores, and
otherwise support herself, but holding that trial court did not abuse its discretion in
awarding spousal maintenance in light of other evidence wife had brain damage,
attended special education classes, had deteriorating disc in lower back, suffered
from seizures and depression, and took medication for both).
Finally, to the extent Romero argues that there is insufficient evidence
connecting Castro’s disability with her inability to work, we disagree. Romero notes
that Cummings testified only that Castro was not hired for one job because the
medications she takes caused her to fail a drug test, not that Castro could not work
because of an incapacitating disability. While it is true that Cummings did not
expressly testify that Castro was unable to work due to her disability, she did testify
that Castro “can’t get a job because nobody will hire [her] because of the
medication . . . because [she] get[s] these tremendous headaches.”
Further, Castro herself directly addressed her ability to obtain employment in
her testimony. Castro explicitly testified that she is not yet to the point physically
where she can get a job, and that she has not been cleared to return to work by her
doctor. These facts are thus distinguishable from recent cases where the Fort Worth
Court of Appeals has found insufficient evidence to warrant an award of spousal
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maintenance due to a lack of connection between the spouse’s disability and inability
to obtain employment. See J.F. v. J.F., No. 02-19-00029-CV, 2020 WL 4248681, at
*4 (Tex. App.—Fort Worth July 23, 2020, pet. denied) (mem. op.) (concluding wife
failed to introduce probative evidence to link disability with inability to work where
there was “ample evidence” to the contrary—wife expressly denied she was
disabled, testified that husband, not personality disorder, was what impeded her
ability to work, and there was evidence that wife held multiple jobs while she had
borderline personality disorder); W.D. v. R.D., No. 02-18-00328-CV, 2019 WL
2635563, at *9 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (holding
trial court did not abuse its discretion in refusing to award spousal maintenance
because there was no evidence that wife’s undiagnosed mental disorder kept her
from finding employment and wife explicitly testified that she was able to work at
time of trial).
After reviewing all the testimony presented at the hearing, we conclude that
Castro presented probative evidence to support the trial court’s award of spousal
maintenance under Section 8.051(2)(A) of the Texas Family Code due to her
incapacitating physical disability. Thus, the trial court did not abuse its discretion by
awarding spousal maintenance.
We overrule Romero’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Amparo Guerra
Justice
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
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