Debra Boothe v. Zeddie Boothe ( 2023 )


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  • Affirmed in Part, Reversed and Remanded in Part, and Opinion filed
    December 21, 2023.
    In The
    Fourteenth Court of Appeals
    NO. 14-22-00372-CV
    DEBRA BOOTHE, Appellant
    V.
    ZEDDIE BOOTHE, Appellee
    On Appeal from the 505th District Court
    Fort Bend County, Texas
    Trial Court Cause No. 19-DCV-261361
    OPINION
    Debra Boothe appeals from the final decree of divorce terminating her
    marriage to Zeddie Boothe. The trial court found that Debra committed fraud on
    the community and wasting of community assets and that she owed reimbursement
    to the community. Taking those factors into account, as well as Zeddie’s attorney’s
    fees, the trial court awarded the entirety of the known community estate to Zeddie.
    The trial court also denied Debra’s request for spousal maintenance. In two issues
    on appeal, Debra contends that the evidence was insufficient to support the trial
    court’s awarding of the entire community estate to Zeddie and that the court
    abused its discretion in denying her request for spousal maintenance. Concluding
    that the trial court erred in its division of the community estate, we reverse and
    remand that portion of the decree for a new division of property and affirm the
    remainder of the judgment, including the denial of spousal maintenance.
    Background1
    Although there was some disagreement between the parties regarding an
    earlier ceremony, the trial court found that Zeddie and Debra were married in
    March 1989, and such finding is not challenged on appeal. The trial court also
    found that the couple stopped living together as spouses around June 1995. The
    couple had three children together. The youngest child, Jasmine, emancipated on
    June 26, 2010. However, the record contains a Default Order in Suit for
    Modification of Child Support Obligation, dated November 10, 2015, which
    ordered Zeddie to pay $840 a month in child support for Jasmine indefinitely due
    to a purported disability. In the proceedings currently before us, the trial court
    found that there was no credible evidence to substantiate that Jasmine was or ever
    had been disabled and that credible evidence disproved any such disability.
    At trial, Debra testified that other than the clothes on her back and in her
    closet, she did not own anything. She did not present any other evidence regarding
    community or separate property and did not testify as to any debts.2 Zeddie
    1
    We have reviewed the record, but we also accept as true the facts stated in appellant’s
    brief to the extent supported by record citation because appellee failed to file a brief. See Tex. R.
    App. P. 38.1(g); Jackson v. Cain-Stegemoller, No. 14-18-00207-CV, 
    2019 WL 3724988
    , at *1
    n.1 (Tex. App.—Houston [14th Dist.] Aug. 8, 2019, no pet.). The State, which was also a party
    due to an alleged child support arrearage, has expressly waived its right to file a brief.
    2
    Debra’s attorney represented that he had documentation of some nature at the trial, but
    he was unable to get it admitted into evidence. No issues regarding the excluded evidence are
    2
    testified and presented a proposed property division showing that he possessed
    community property valued at $446,232.32 and owed community debts of
    $12,100, for a positive total of $434,132.32. Zeddie’s proposed property division
    showed Debra as possessing no community property and owing no community
    debts. The community property listed for Zeddie included vehicles, bank accounts,
    and retirement accounts.
    The trial court concluded that Zeddie “should be awarded a disproportionate
    share of the parties’ estate due to the following reasons: actual or constructive
    fraud committed by Debra Boothe, wasting of community assets, reimbursement,
    and attorneys’ fees to be paid.” The only specific finding the trial court made
    regarding any of these allegations was that Debra “continued to collect $840.00 per
    month in child support from Petitioner until September 2021 based on false claims
    that Jasmine Boothe was disabled.” Among other things in its final decree, the trial
    court dissolved the parties’ marriage, terminated Zeddie’s child support obligation,
    awarded each side the community property that was in their possession or under
    their control (effectively awarding Zeddie the entirety of the proven community
    estate except for Debra’s clothes) as well as the liabilities they had incurred, and
    ordered each side to pay their own attorney’s fees. The trial court also denied
    Debra’s request for spousal maintenance.
    Among other things, Zeddie testified at trial that the couple separated in
    1995 because Debra was squandering money and had stolen a couple of his
    checkbooks and was writing checks without his knowledge. He said that she was
    using the money to throw parties for the neighborhood. He further alleged that he
    and Debra had operated a daycare for a time, but Debra used the business to steal
    clients’ social security numbers for her own benefit. Zeddie asked that the
    raised in this appeal.
    3
    community estate be reimbursed for what he called Debra’s fraudulent conduct. He
    did not, however, suggest any specific amount by which the community estate had
    allegedly been diminished by such conduct. Alternatively, he asked to be awarded
    a disproportionate share of the community estate. Zeddie asserted that the couple
    had lived apart since the agreed separation, but he had not filed for divorce in the
    intervening 27 years because he wanted his children to know that he was not
    abandoning them.
    Zeddie stated that Jasmine was 29 years old at the time of trial, and although
    he initially stopped paying child support when she turned 18, he was told to start
    paying again when she allegedly went to college. He subsequently received an
    order stating that he did not have to keep paying child support, and, in fact, he
    received a reimbursement. However, new child support proceedings resulted in a
    default order against him in late 2015 when Debra alleged that Jasmine was
    disabled and mentally unstable. Zeddie said, however, that Jasmine is not disabled
    and Debra defrauded the court and him. He explained that Jasmine has worked
    since she turned 18, got her GED in 2010, is married, and can and does support
    herself. He said that he had paid $840 a month since 2015 in child support for
    Jasmine. He alleged the money was not, in fact, used for Jasmine. He said that he
    and Jasmine had tried to rectify the situation, but the attorney they contacted
    wanted too much money. Although the default child support order states that
    Zeddie was duly notified, he contended at trial that he was not served with notice
    for those proceedings and that notice was sent to the wrong address. He only found
    out about the order later from the human resources department of his employer. He
    asked that the funds be reconstituted back into the community estate and counted
    against Debra in the division of the estate.
    The trial court made no finding and Zeddie offered no testimony regarding
    4
    the total amount of child support that he erroneously paid based on the disability
    claim. However, the default order provided that he was to pay $840 a month in
    child support starting September 18, 2014, and the court below found that the
    payments ended in September 2021. Assuming Zeddie made 85 months of
    payments, this equates to $71,400. But there was also evidence that Zeddie was in
    arrears on the payments by $5,208.21, apparently because the default order had
    been retroactive and he never made the retroactive payments. The amount Zeddie
    actually paid was therefore less than $71,400.3 Although Zeddie also testified at
    one point that he had made a total of $115,000 in child support payments for
    Jasmine since her emancipation, as stated, he acknowledged that he had already
    received a reimbursement for the amounts he allegedly paid because she was in
    college.
    When specifically asked about his fraud claims against Debra, Zeddie
    identified her taking money without his knowledge (presumably the allegedly
    stolen checks) and the alleged receipt of child support under false pretenses. He
    told the court that he was asking for the division shown in exhibit P-2, which
    showed everything being awarded to Zeddie. He asserted that Debra has made zero
    contribution to the community estate, but he suggested without specifics that her
    father may have left her some property. Regarding Debra’s spousal maintenance
    claim, Zeddie testified that Debra had not been a spouse to him in 27 years. He did
    not believe she was entitled to spousal maintenance because they had each been
    supporting themselves. He asserted that his attorney’s fees in the case totaled
    $48,000.
    Zeddie said he thought Debra was in pretty good shape and her vision was
    3
    We say less than $71,400 rather than simply deducting the amount of the arrears that
    Zeddie never paid because the amount given for the arrears likely included interest that should
    not be subtracted from the amount of the payments he actually made.
    5
    fine, but she just chose not to work. He explained that she worked when they
    operated a daycare from 1989 to 1991, and she worked at another daycare during
    the same period. He stated that the couple was filing separate tax returns but she
    once filed his tax return and then kept the refund. He reported the matter, but he
    says he was told she could do it because she was his wife. He did not state how
    much money was involved. He said that although he wants Debra to receive none
    of his retirement funds, she might be entitled to 20 percent of the funds that he
    earned between 1989 and 1995, the period when they were actually living together.
    The trial court found that Debra’s “testimony throughout the trial was
    inconsistent and void of credibility.” In her testimony, Debra asserted that she was
    legally blind and had been blind since birth. She receives monthly social security
    disability checks of $742. She stated that she married Zeddie in 1986 and they
    became separated in 2013. According to Debra, Jasmine still requires care and
    supervision and Debra provides it; she also provides Jasmine a place to live and
    helps with her children. She explained that Jasmine has sickle cell anemia and
    learning disabilities and is unable to provide for herself. Debra admitted that she
    had no proof that Jasmine had limited mental capacity.
    Debra was previously arrested for writing a bad check. She said that she has
    not applied for jobs because she cannot work due to her poor vision and numerous
    health issues that include high blood pressure, a blockage near her heart, a tumor in
    her head, depression, and anxiety. She also said that she has a learning disability
    and lacks any education or training that could help her get a job. She insisted she
    could not provide for herself without spousal maintenance. She lives with Jasmine
    and another daughter and helps with the other daughter’s mortgage. She denied
    living off the child support payments and said her mother and uncle were paying
    for her attorney.
    6
    Debra explained that during the marriage, Zeddie was “in and out” and was
    not helping pay bills, so sometimes their power would get cut off. According to
    Debra, Zeddie never voluntarily helped with their three children, and she had to
    depend on her parents for help. She said that when he would leave, they would
    have to move because they could not pay the rent. Zeddie did not appear for child
    support hearings in 1998, 2003, 2008, or 2015, even though she told him the dates.
    She said he spent money on the sons he fathered with other women. She denied
    improperly taking money from Zeddie, stealing his checks, or filing his tax return.
    She asserted that Zeddie told her she should stay home and take care of the
    children. She also said that she contributed to the marital estate by cooking,
    cleaning, washing clothes, and taking care of the children. Debra insisted she did
    not own any property or furniture or really anything of value except clothing, and
    she denied receiving any inheritance from her father.
    Zeddie’s niece, Taurus Lee, testified that Jasmine was independent and
    supporting herself financially, and Lee had not known Jasmine to live with Debra
    since Jasmine got married. She said that Jasmine has neither displayed any signs of
    mental instability nor received any money from Debra as support. Lee described
    Debra as untrustworthy and said that Debra probably could not stay with a relative
    because she could not be trusted. Lee had not known Debra to work except for the
    brief period where she ran a daycare.
    In closing argument, Zeddie’s attorney alleged that Debra had committed
    actual and constructive fraud by seeking child support for a nondisabled adult
    child, and the attorney asked the court to reconstitute the estate by adding the
    amount of those payments back into the estate and awarding Zeddie a
    disproportionate share. She also requested the court award Zeddie attorney’s fees.
    She concluded by asking that the court order the proposed division in exhibit P-2,
    7
    which showed the entirety of the community estate going to Zeddie. In his closing
    argument, Debra’s attorney asserted she had not committed fraud but merely
    provided documents to the attorney general’s office, which sought the continuing
    child support. He also alleged Zeddie had wasted community funds through his
    numerous affairs and fathering children outside the marriage. And he cited Debra’s
    alleged disability and other health issues. As stated above, the trial court awarded
    Zeddie the entirety of the known community estate, citing “actual or constructive
    fraud . . . , wasting . . . , reimbursement, and attorneys’ fees.”
    Property Division
    In her first issue, Debra challenges the trial court’s award of the entire
    community estate to Zeddie. We will begin our analysis by setting out the law
    governing division of the community estate in a divorce decree before turning to
    the trial court’s findings, Debra’s arguments, and the evidence. We conclude that
    the trial court erred in its division of the community estate.
    Governing law. In a divorce decree, the trial court shall order a division of
    the parties’ community estate “in a manner that the court deems just and right,
    having due regard for the rights of each party and any children of the marriage.”
    Tex. Fam. Code § 7.001; Barnett v. Barnett, 
    67 S.W.3d 107
    , 111 (Tex. 2001). Trial
    courts have wide discretion in determining a just and right division. Schlueter v.
    Schlueter, 
    975 S.W.2d 584
    , 589 (Tex. 1998). When circumstances justify, this
    standard may result in a disproportionate division of assets and liabilities. 
    Id.
     at
    589–90. Indeed, the property division need not be equal; however, it must be
    equitable, and there must be some reasonable basis for an unequal division of the
    property. E.g., Murff v. Murff, 
    615 S.W.2d 696
    , 698–99 (Tex. 1981); Gordon v.
    Gordon, No. 14-10-01031-CV, 
    2011 WL 5926723
    , at *7 (Tex. App.—Houston
    [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). Among the factors a trial court
    8
    may consider in making an unequal division are the spouses’ earning capacities,
    disparity of income and abilities, education, business opportunities, relative
    physical condition, relative financial condition, disparity of ages, size of separate
    estates, nature of the property, and the benefits that the spouse who did not cause
    the breakup of the marriage would have enjoyed had the marriage continued.
    Murff, 615 S.W.2d at 698–99; In re Marriage of Rangel & Tovias-Rangel, 
    580 S.W.3d 675
    , 682 n.4 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Although
    fault in the breakup of the marriage may be considered, the division of property
    should not serve to punish the party at fault. Bradshaw v. Bradshaw, 
    555 S.W.3d 539
    , 543–45 (Tex. 2018).
    Claims for waste, fraudulent transfer of community property, or other
    damage to community property belong to the community itself and also may be
    considered in the trial court’s division. See Chu v. Hong, 
    249 S.W.3d 441
    , 444–45
    (Tex. 2008); see also Schlueter, 975 S.W.2d at 589; K.T. v. M.T., No. 02-14-
    00044-CV, 
    2015 WL 4910097
    , at *12 (Tex. App.—Fort Worth Aug. 13, 2015, no
    pet.) (mem. op.) (“In addition, a court may consider one spouse’s wrongful
    dissipation of community assets.”); Smith v. Smith, 
    143 S.W.3d 206
    , 213 (Tex.
    App.—Waco 2004, no pet.) (listing 14 factors Texas courts have considered in
    ordering a disproportionate division).
    Reimbursement is an equitable right that arises when the funds or assets of
    one estate are used to benefit and enhance another estate without the first estate
    receiving some benefit. Marriage of O’Brien, 
    436 S.W.3d 78
    , 82 (Tex. App.—
    Houston [14th Dist.] 2014, no pet.). Waste, or constructive fraud, is one form of
    fraud on the community that occurs when a spouse wrongfully depletes the
    community estate of assets without the other spouse’s knowledge or consent. See
    In re Marriage of Walzel, No. 14-16-00637-CV, 
    2018 WL 614767
    , at *3–4 (Tex.
    9
    App.—Houston [14th Dist.] Jan. 30, 2018, no pet.) (mem. op.) (citing Schlueter,
    975 S.W.2d at 589); see also Cantu v. Cantu, 
    556 S.W.3d 420
    , 427 (Tex. App.—
    Houston [14th Dist.] 2018, no pet.) (“Fraud is presumed whenever one spouse
    disposes of the other spouse’s one-half interest in community property without that
    other spouse’s knowledge or consent.”). Waste requires disposal of community
    assets for non-community purposes. Giesler v. Giesler, No. 03-08-00734-CV, 
    2010 WL 2330362
    , at *4 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.). A
    spouse commits actual fraud against the other spouse’s interest in the community
    estate when the spouse transfers community property or expends community funds
    for the primary purpose of depriving the other spouse of the use and enjoyment of
    the assets involved in the transaction. Strong v. Strong, 
    350 S.W.3d 759
    , 771 (Tex.
    App.—Dallas 2011, pet. denied). A trial court also has equitable power to award
    either spouse attorney’s fees as part of its just and right division of the marital
    estate. Maxwell v. Maxwell, No. 14-20-00298-CV, 
    2021 WL 4956881
    , at *25 (Tex.
    App.—Houston [14th Dist.] Oct. 26, 2021, pet. denied) (mem. op.).
    Findings and evidence. As mentioned above, the trial court generally
    justified the disproportionate division based on Debra’s fraud, her wasting of
    community assets, reimbursement, and Zeddie’s attorney’s fees. The only specific
    finding that the trial court made in support of the disproportionate division was that
    Debra “continued to collect . . . child support from Petitioner until September 2021
    based on false claims that Jasmine Boothe was disabled.” Although the trial court
    did not make an explicit finding as to the total amount lost from the community
    due to this conduct, the record indicates that the amount was less than $71,400.4
    4
    As set forth above, this calculation is based on 85 months at $840 per month minus the
    unpaid arrearage. No contention is made in this appeal, or was made below, that the funds used
    to pay the child support in question were not community property. Zeddie indicated in his
    testimony that the money came from his earnings during the marriage, which would have been
    10
    Zeddie also testified that early in the marriage, Debra had stolen some
    checks and cashed them in order to throw parties for the neighborhood. Zeddie did
    not, however, offer any clue as to the total amount of the funds Debra expended in
    this fashion. And Zeddie testified that at one point, when they were filing separate
    tax returns, Debra filed a tax return in his name and then kept the tax refund. He
    said that when he reported this, he was told she could do it because she was his
    wife. Zeddie again did not offer any hint regarding the amount of the tax refund or
    what Debra may have done with it. Zeddie also testified that his attorney’s fees in
    the case totaled $48,000, and the trial court indicated it was taking that into
    account in making a disproportionate division as well.
    Debra’s arguments. Debra argues that the evidence is legally and factually
    insufficient to support the trial court’s disproportionate division. She argues more
    specifically that (1) there was insufficient evidence of the amount of any alleged
    damage to the community; (2) there was no evidence her separate estate benefitted
    from any community funds; (3) a trial court cannot recognize a claim for
    reimbursement for the payment of child support, citing Tex. Fam. Code § 3.409;
    (4) the attorney general’s office sought the disability child support; and (5) Zeddie
    failed to provide expert testimony regarding the reasonableness and necessity of
    his attorney’s fees.
    The evidence, however, was sufficient to support a determination that Debra
    committed fraud by obtaining continuing child support on false pretenses. It was
    established that Debra sought and received child support based on her allegations
    that Jasmine was disabled, and there was substantial evidence that Jasmine, in fact,
    was not disabled and had never been disabled. See, e.g., Strong, 
    350 S.W.3d at
    771
    community property. See Tex. Fam. Code § 3.002; Marriage of O’Brien, 
    436 S.W.3d at 84
    (“[E]arnings during marriage, even during the pendency of divorce proceedings, are community
    property.”).
    11
    (discussing fraud against the community). Additionally, there was evidence on
    which the court could have concluded that Debra committed constructive fraud or
    wasting against the community by cashing Zeddie’s checks without his consent
    and using that money to throw neighborhood parties and filing his tax return and
    taking the tax refund without his consent, although there was no evidence of how
    much this conduct may have cost the community. See Cantu, 
    556 S.W.3d at 427
    (discussing constructive fraud and wasting); Walzel, 
    2018 WL 614767
    , at *3–4
    (same). But see Kaftousian v. Rezaeipanah, 
    511 S.W.3d 618
    , 623 (Tex. App.—El
    Paso 2015, no pet.) (holding disproportionate division of marital estate could not
    be supported by allegations where trial court did not make findings based on those
    allegations).5 And, although Zeddie’s attorney did not provide live testimony
    regarding the reasonableness and necessity of her fees, she did provide an affidavit
    on that issue and Zeddie did not object to the form of the evidence. See, e.g.,
    Spencer v. Vaughn, No. 03-05-00077-CV, 
    2008 WL 615443
    , at *13–14 (Tex.
    App.—Austin Mar. 6, 2008, pet. denied) (mem. op.).
    Just and right division. The bigger issue that Debra raises is not whether
    there was evidence she committed fraud, constructive fraud, or wasting, but
    whether the trial court’s division of the community estate based on this conduct—
    awarding Zeddie the entirety of the existing community estate—was just and
    right.6 A trial court is certainly permitted to take such wrongful conduct into
    consideration when dividing a community estate. See, e.g., Chu, 249 S.W.3d at
    444–45; Schlueter, 975 S.W.2d at 589; Debrock v. Debrock, No. 03-21-00308-CV,
    
    2022 WL 17970214
    , at *17 (Tex. App.—Austin Dec. 28, 2022, pet. denied) (mem.
    5
    We need not and do not make a ruling as to whether the trial court considered or
    properly considered the evidence concerning the checks and the tax refund in resolving the issues
    in this appeal.
    6
    There does not appear to be any evidence in the record supporting a reimbursement
    claim. See O’Brien, 
    436 S.W.3d at 82
    .
    12
    op.); K.T., 
    2015 WL 4910097
    , at *12.
    Although the trial court here did not expressly provide its calculations for
    reconstituting the marital estate (i.e., adding the amounts wrongfully taken from
    the community back into the estate before making a just and right division), such
    calculations are not difficult. See generally Tex. Fam. Code § 7.009 (requiring
    court reconstitute estate in light of actual or constructive fraud on the community).
    The total positive value of the estate after subtracting liabilities also assigned to
    Zeddie was $434,132.32. The proven amount of losses caused by Debra’s
    wrongful conduct was less than $71,400. Assuming the trial court reconstituted the
    community estate and considered $71,400 as Debra’s share, the division was
    approximately 86% to Zeddie and 14% to Debra. Even considering that the trial
    court was within its discretion in factoring in Zeddie’s attorney’s fees in making
    the division and there was some evidence of additional unquantified damages
    related to the alleged theft of checks and a tax return, this is still a very
    disproportionate split. See generally Murff, 615 S.W.2d at 700 (“Mathematical
    precision in dividing property in a divorce is usually not possible.”). But is it
    inequitable?
    There is no exact threshold as to what percentage split between spouses
    constitutes an unfair or unjust division and thus reversible error. See Bradshaw,
    555 S.W.3d at 547 (Devine, J., concurring). That said, a division this
    disproportionate is somewhat rare but not unheard of in Texas jurisprudence. See
    id.; id. at 551 (Lehrmann, J., dissenting). Typically, cases resulting in such a
    disproportionate division involve either evidence demonstrating conduct impacting
    a much greater percentage of the community estate than was shown here, evidence
    relating to one or several of the Murff factors, or evidence of abuse. See, e.g.,
    Lynch v. Lynch, 
    540 S.W.3d 107
    , 130 (Tex. App.—Houston [1st Dist.] 2017, pet.
    13
    denied) (collecting and describing cases with very disproportionate property
    divisions); see also Simons v. Simons, No. 11-21-00066-CV, 
    2023 WL 2415209
    , at
    *8 (Tex. App.—Eastland Mar. 9, 2023, no pet.) (mem. op.) (affirming award of
    entire marital estate to wife where husband had treated her cruelly, was at fault in
    the break-up of the marriage, and had sexually assaulted his step-daughter);
    Christensen v. Christensen, No. 01-16-00735-CV, 
    2018 WL 1747260
    , at *8 (Tex.
    App.—Houston [1st Dist.] Apr. 12, 2018, no pet.) (affirming disproportionate
    division based on waste, fault in the break-up of the marriage, and multiple Murff
    factors); Ohendalski v. Ohendalski, 
    203 S.W.3d 910
    , 915 (Tex. App.—Beaumont
    2006, no pet.) (affirming 81/19 division based on findings of adultery, cruelty,
    waste, and Murff factors).
    Here, as indicated, Debra’s wrongful conduct was shown to impact only a
    relatively small percentage of the community estate and there was no evidence of
    any Murff factors that would support a disproportionate division in Zeddie’s favor
    or that Debra was abusive. To the contrary, Zeddie was shown to be in a
    significantly better financial position with significantly greater earnings potential
    than Debra. Under these circumstances, we conclude that the trial court’s division
    of the community estate was neither supported by a reasonable basis nor equitable
    and therefore constituted reversible error. See, e.g., Roberts v. Roberts, 
    531 S.W.3d 224
    , 234 (Tex. App.—San Antonio 2017, pet. denied) (holding division was so
    disproportionate as to be unfair and unjust); K.T., 
    2015 WL 4910097
    , at *12
    (holding although evidence supported unequal division of community estate, it did
    not support such a disproportionate division); Osorno v. Osorno, 
    76 S.W.3d 509
    ,
    512 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding 75/25 split was not
    supported by the evidence); Blair v. Blair, No. 14-97-00832-CV, 
    1999 WL 649082
    , at *9 (Tex. App.—Houston [14th Dist.] Aug. 26, 1999, no pet.) (not
    14
    designated for publication) (holding, even assuming right of reimbursement,
    property division was “grossly inequitable”). Accordingly, we must reverse the
    portion of the decree dividing the community estate and remand for a new division.
    See Graves v. Tomlinson, 
    329 S.W.3d 128
    , 153 (Tex. App.—Houston [14th Dist.]
    2010, pet. denied) (“[O]nly the trial court may make a just division of community
    property.”).
    Spousal Maintenance
    In her second issue, Debra asserts that the trial court abused its discretion in
    denying her request for spousal maintenance. Chapter 8 of the Family Code
    governs the awarding of spousal maintenance in a divorce decree. Tex. Fam. Code
    §§ 8.001-.359; see also Dalton v. Dalton, 
    551 S.W.3d 126
    , 130 (Tex. 2018) (“In
    1995, the Texas Legislature first authorized courts to award a form of involuntary
    post-divorce alimony referred to as ‘spousal maintenance.’”). The Code defines
    “maintenance” as “an award in a suit for dissolution of a marriage of periodic
    payments from the future income of one spouse for the support of the other
    spouse.” Tex. Fam. Code § 8.001(1).
    The Code authorizes trial courts to award spousal maintenance in “very
    limited circumstances” if the parties meet certain eligibility requirements. Dalton,
    551 S.W.3d at 130. Among the possibilities stated in the statute, a spouse may be
    eligible if they lack sufficient property, including separate property, on dissolution
    of the marriage to provide for their minimum reasonable needs, and either (1) has
    been married to the other spouse for at least 10 years and lacks the ability to earn
    sufficient income to provide for her minimum reasonable needs, or (2) is unable to
    earn sufficient income to provide for their minimum reasonable needs because of
    an incapacitating physical or mental disability. Tex. Fam. Code § 8.051. If the
    spouse is determined to be eligible for maintenance, the court must then determine
    15
    the nature, amount, duration, and manner of the payments by considering certain
    listed factors. Id. § 8.052.
    The party seeking spousal maintenance bears the burden to establish the
    requirements of the statute. See, e.g., Marin v. Marin, No. 03-22-00013-CV, 
    2023 WL 2776296
    , at *2 (Tex. App.—Austin Apr. 5, 2023, no pet.) (mem. op.); Cooper
    v. Cooper, 
    176 S.W.3d 62
    , 65 (Tex. App.—Houston [1st Dis.] 2004, no pet.). We
    review a trial court’s denial of spousal maintenance for an abuse of discretion. See,
    e.g., W.D. v. R.D., No. 02-18-00328-CV, 
    2019 WL 2635563
    , at *8 (Tex. App.—
    Fort Worth June 27, 2019, no pet.) (mem. op.); Fuentes v. Zaragoza, 
    555 S.W.3d 141
    , 171 (Tex. App.—Houston [1st Dist.] 2018, no pet.). We will reverse the trial
    court’s order only if we determine, from reviewing the record as a whole, that the
    decision was arbitrary and unreasonable. Coble v. Adams, No. 01-13-00562-CV,
    
    2014 WL 6602480
    , at *1 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, no pet.)
    (mem. op.). We view the evidence in the light most favorable to the trial court’s
    decision and indulge every legal presumption in favor of its judgment. 
    Id.
    It is uncontested that Zeddie and Debra were married for well over 10 years.
    Debra further asserts that she is legally blind and unable to work due to that
    disability and that she also suffers from several health issues and a learning
    disability. She maintains that her only source of income is a $742 monthly social
    security disability payment and that she owns nothing except her own clothes. The
    only support in the record that Debra references for these assertions is her own
    testimony, which the trial court found to be thoroughly “inconsistent and void of
    credibility.” In a trial to the bench, such as this, the trial court is the sole judge of
    witness credibility and the weight to be assigned to testimony. See Saba Zi Expl.,
    L.P. v. Vaughn, 
    448 S.W.3d 123
    , 131 (Tex. App.—Houston [14th Dist.] 2014, no
    pet.). Debra’s attorney was unable to get any documentary evidence into the record
    16
    to support her claims regarding her disabilities, health issues, inability to earn a
    living, and lack of property. Although, as discussed above, there is some evidence
    from Zeddie indicating Debra did not possess any community property, Debra does
    not cite any evidence beyond her own testimony in support of her claims.
    Zeddie testified that he thought Debra could see pretty well, and he was not
    aware of any other health issues she might have. He also noted that she had either
    worked for or operated a daycare for a couple of years. He believed that she was
    “in good shape” but just chose not to work. Additionally, under cross-examination,
    Debra acknowledged that she would only need about $303 a month in addition to
    her disability payments to meet her minimum reasonable needs. See Tex. Fam.
    Code § 8.051; see also Trueheart v. Trueheart, No. 14-02-01256-CV, 
    2003 WL 22176626
    , at *2 (Tex. App.—Houston [14th Dist.] Sept. 23, 2003, no pet.) (mem.
    op.) (explaining that the Code does not define the term “minimum reasonable
    needs” and deciding what a particular person’s needs are is a fact-specific
    determination that should be made by the trial court on a case-by-case basis).
    Although the trial court did not state an express finding as to why it denied
    the spousal maintenance request, it may have reasonably concluded that Debra
    failed to meet her burden to establish either that she lacked sufficient property to
    provide for her minimum reasonable needs or that she lacked the ability to earn
    sufficient income to provide for her minimum reasonable needs. See Tex. Fam.
    Code § 8.051; see also 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.) (collecting cases
    where spouse asserting disability or health issues failed to meet burden for spousal
    maintenance). We therefore overrule Debra’s second issue.
    Conclusion
    We reverse the portion of the final decree of divorce that divides the marital
    17
    estate and remand that issue to the trial court for further proceedings. We affirm
    the remainder of the divorce decree.
    /s/    Frances Bourliot
    Justice
    Panel consists of Justices Bourliot, Hassan, and Poissant.
    18
    

Document Info

Docket Number: 14-22-00372-CV

Filed Date: 12/21/2023

Precedential Status: Precedential

Modified Date: 12/31/2023