Thomas A. Everitt v. Jo Ann Everitt

Opinion issued August 31, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00031-CV
———————————
THOMAS A. EVERITT, Appellant
V.
JO ANN EVERITT, Appellee

On Appeal from the 308th District Court
Harris County, Texas
Trial Court Case No. 2008-36728

MEMORANDUM OPINION

Appellant Thomas A. Everitt appeals from a final decree of divorce entered

in favor of appellee Jo Ann Everitt. He challenges (1) the division of the

community estate, which was divided in part on the basis of Jo Ann’s claim for
constructive fraud, (2) the orders on spousal maintenance, which require Thomas

to pay Jo Ann $2,500 per month for up to twelve months, and (3) the orders on

child support for their minor child, which exceed the statutory guidelines insofar as

they require Thomas to pay for the child’s private school and camp costs. We

affirm.

Background

Jo Ann and Thomas Everitt were married in 1988. They obtained college

degrees in petroleum engineering, and Jo Ann worked as an engineer for less than

a year before the couple agreed that she would stay home to raise their children.

For most of the time they were married, the couple lived overseas while Thomas

worked as a petroleum engineer. When they separated in June 2008, the couple

had been living for three years in Cairo, Egypt with their three sons who were 18,

16, and 10 years old at the time of the separation.

Jo Ann testified that Thomas was a good provider for the family. However,

she accused him of habitually making derogatory remarks about her appearance

and intelligence during their marriage, including in front of their sons. She also

recounted two specific incidents of physical violence, one against her just prior to

the separation, and another against their eldest son. Jo Ann also alleged that

Thomas repeatedly had been unfaithful with multiple women throughout their

marriage. Thomas admitted at trial to one affair early in the marriage. He testified

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that he and his wife “grew apart” over the years such that both were mutually at

fault for the breakup, but he did not otherwise contradict Jo Ann’s testimony

concerning his abusive conduct and treatment of her.

Upon separating from Thomas, Jo Ann moved from Egypt to Tomball,

Texas and filed for divorce. The pair agreed at the time that their youngest son

would live with Jo Ann in Texas while their middle son would live with Thomas in

Egypt. During the first year of living in Tomball, Jo Ann enrolled their youngest

son in public school, but the following year she enrolled him in a private school.

Apart from $600 earned as a substitute teacher, Jo Ann did not earn any income

while the divorce was pending.

At the outset of the litigation, the trial court entered agreed injunctions that

prohibited both parties from making dispositions of their property except for

“reasonable and necessary living expenses” and other specified expenses. Shortly

afterward, pursuant to a mediated settlement agreement, the court entered agreed

temporary orders that permitted each party to spend up to $4,000 per month for

“usual and customary living expenses.”

Less than a week before trial, Thomas filed an inventory and appraisal of

assets and liabilities purportedly belonging to the community estate and each

separate estate. In response, on the first day of trial Jo Ann filed an amended

petition alleging that a “large sum of money appears to have disappeared from the

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community estate without explanation” and that at least some “may have been

translated into new assets.” Jo Ann further alleged that Thomas “may have acted

in violation of the mutual injunctions and the agreed temporary orders in effect in

this case,” and she sought “a judgment for any and all funds removed from the

community estate by [Thomas] in violation of the injunctions and temporary orders

in this case.” She requested a “just and right” division of the parties’ property,

spousal maintenance, and child support for their youngest son.

The trial court granted Jo Ann’s petition for divorce on the grounds of

insupportability, cruelty, and adultery. In its findings of fact and conclusions of

law, the court found that Thomas had spent $249,970.56 in violation of the court’s

temporary orders, and it concluded that the violations constituted constructive

fraud on the community estate. The court granted Jo Ann’s proposed division of

the community estate, whereby she received a greater share of the estate. In

addition to awarding Jo Ann several bank and investment accounts as her separate

property, the court ordered a judgment of $416,167 against Thomas for “the

purpose of a just and right division.” The court ordered Thomas to pay spousal

maintenance in the amount of $2,500 per month for twelve months, or until Jo Ann

obtained employment resulting in income of $2,500 per month after taxes.

Thomas was also ordered to pay $1,500 per month in child support, plus all the

costs for the minor child’s private school and up to $1,000 per year for summer

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camp. Thomas appeals from the divorce decree with regard to the division of the

community estate and the awards of spousal maintenance and child support.

Analysis

I. Division of the community estate

The thrust of Thomas’s first issue is that the trial court abused its discretion

by recognizing Jo Ann’s “waste claim” when it divided the community estate.

Thomas contends that the claim was not supported by legally and factually

sufficient evidence. We review the trial court’s division of the community estate

upon divorce for an abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698

(Tex. 1981). A trial court abuses its discretion when it acts arbitrarily or

unreasonably without reference to guiding rules or principles, or by failing to

analyze or apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). In

this context, “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.” Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). “A trial court does not abuse its

discretion when there is some evidence of a substantive and probative character to

support the trial court’s judgment.” Miles v. Peacock, 229 S.W.3d 384, 389 (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

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 “Community property owes its existence to the legal fact of marriage, and

when the parties to that compact determine their relationship should end, property

acquired during marriage is and should be divided among them in a just and right

manner.” Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (quoting

Cameron v. Cameron, 641 S.W.2d 210, 223 (Tex. 1982)); see also TEX. FAM.

CODE ANN. § 7.001 (West 2006) (providing that the “court shall order a division of

the estate of the parties in a manner that the court deems just and right”). The “just

and right” standard is the sole method to account for and to divide community

property upon divorce. Schlueter, 975 S.W.2d at 588. “Such a standard may at

times lead to a disproportionate division of assets and liabilities of the parties,

depending on the circumstances that courts may consider in refusing to divide the

marital estate equally.” Id.; see also Murff, 615 S.W.2d at 699 (listing non-

exclusive factors court may consider in unequally dividing community estate).

“When the circumstances demonstrate a reasonable basis for it, a trial court may

order an unequal division of community property.” Leax v. Leax, 305 S.W.3d 22,

34 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

In implementing the “just and right” standard, “Texas recognizes the concept

of fraud on the community, which is a wrong by one spouse that the court may

consider in its division of the estate of the parties and that may justify an unequal

division of the property.” Schlueter, 975 S.W.2d at 588. “[A] relationship of trust

6
and confidence exists between husband and wife which requires that a spouse’s

disposition of his special community property to be fair to the other spouse.”

Massey v. Massey, 807 S.W.2d 391, 402 (Tex. App.—Houston [1st Dist.] 1991,

writ denied); accord Knight v. Knight, 301 S.W.3d 723, 731 (Tex. App.—Houston

[14th Dist.] 2009, no pet.). “The breach of a legal or equitable duty which violates

this fiduciary relationship . . . is termed fraud on the community because, although

not actually fraudulent, it has all the consequences and legal effects of actual fraud

because such conduct tends to deceive the other spouse or violate confidences that

exist as a result of the marriage.” Knight, 301 S.W.3d at 731.

A presumption of constructive fraud arises when one spouse disposes of the

other’s spouse’s one-half interest in community property without the other’s

knowledge or consent. Mazique v. Mazique, 742 S.W.2d 805, 807–08 (Tex.

App.—Houston [1st Dist.] 1987, no writ); Zieba v. Martin, 928 S.W.2d 782, 789

(Tex. App.—Houston [14th Dist.] 1996, no writ). The presumption may arise even

when the other spouse has knowledge of the disposition, so long as she did not also

consent to the disposition. See Zieba, 928 S.W.2d at 790. Once the presumption

of constructive fraud arises, the managing spouse has the burden to show that his

disposition of the property was fair to the other spouse. Massey, 807 S.W.2d at

402; Mazique, 742 S.W.2d at 808. The three primary factors for determining the

fairness of the dispositions are: (1) the size of the property disposed of in relation

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to the total size of the community estate; (2) the adequacy of the estate remaining

to support the other spouse after the disposition; and (3) the relationship of the

parties involved in the transaction or, in the case of a gift, of the donor to the

donee. Massey, 807 S.W.2d at 402.

“[T]he court may render a personal judgment against one spouse in order to

effect an equitable distribution of the property and as a means to recoup for the

defrauded spouse the value of property lost from the estate, by reason of the

wrongful acts of the other spouse.” Belz v. Belz, 667 S.W.2d 240, 247 (Tex.

App.—Dallas 1984, writ ref’d n.r.e.). “Of course, the money judgment can only be

used as a means for the wronged spouse to recoup the value of his or her share of

the community estate lost through the wrongdoer spouse’s actions.” Schlueter, 975

S.W.2d at 588. Therefore, when the community estate has been made monetarily

whole, the trial court in its just and right division “may not effect a

disproportionate property division solely to make up for that formerly lost asset.”

Id. at 590. Nevertheless, if the wronged spouse can prove the heightened

culpability of actual fraud, which requires “dishonesty of purpose or intent to

deceive” in the disposition of community property, the trial court may consider the

fraudulent conduct in making an unequal division. Id. at 589–90.

The Everitts agreed to, and the court entered, temporary mutual injunctions

which enjoined them from “[s]pending any sum of cash in either party’s possession

8
or subject to either party’s control for any purpose, except as specifically

authorized by order” of the court. The specifically authorized expenditures

included those for “reasonable and necessary living expenses” and “reasonable

attorney’s fees and expenses in connection with this suit.” Also, the temporary

injunctions required them to pay insurance premiums.

Three weeks after the injunctions were entered, and pursuant to the parties’

mediated settlement agreement, the court entered agreed temporary orders

permitting each party to spend up to $4,000 per month for “usual and customary

living expenses.” The agreed temporary orders stated that “[a]ll prior orders and

agreed mutual injunctions shall remain in full force and effect until further order of

this court.” Thus, upon entry of the agreed temporary orders, Jo Ann and Thomas

were not to spend any money for any purpose, except $4,000 per month in usual

and customary living expenses and other court-authorized expenditures such as

attorney’s fees and insurance premiums.

The trial court’s authority to enter these orders is derived from the Family

Code. See TEX. FAM. CODE ANN. §§ 6.501–.502 (authorizing temporary

injunctions, temporary restraining orders, and other temporary orders during

pendency of divorce proceeding). One purpose of such orders is to temporarily

safeguard community property from encumbrance or transfer by one of the spouses

pending a final division. See Morgan v. Morgan, 657 S.W.2d 484, 493–94 (Tex.

9
App.—Houston [1st Dist.] 1983, no writ). The trial court may hold a party in

contempt for violation of such a temporary order. See TEX. FAM. CODE. ANN.

§ 6.506. Additionally, the violation of temporary orders is a factor that a trial court

may consider in effecting a “just and right” division of the community estate. See

Jones v. Jones, 699 S.W.2d 583, 585 (Tex. App.—Texarkana 1985, no writ); see

also Schlueter, 975 S.W.2d at 589 (noting that “wasting of community assets” is

factor in making just and right division).

Through mediation and in contemplation of temporary orders, Thomas and

Jo Ann signed the mediated settlement agreement under which each was allowed

to spend $4,000 per month for living expenses. They mutually agreed, as spouses

and fiduciaries, to preserve the remainder of the community estate for a later “just

and right” division. See Massey, 807 S.W.2d at 402; Morgan, 657 S.W.2d at 493–

94. Because each had the other’s consent to spend no more than $4,000 per month,

and the agreed injunctions prohibited most other expenditures, the disposition of

community property by either party above that limit for a purpose not specifically

authorized by the court raises the presumption of constructive fraud. See Mazique,

742 S.W.2d at 807–08; Zieba, 928 S.W.2d at 789. Thus, each spouse, with respect

to the community property under their control, had the burden to prove that the

disposition of the community estate above the $4,000 monthly limit for an

10
unauthorized purpose was fair to the other spouse. See Massey, 807 S.W.2d at

402; Mazique, 742 S.W.2d at 808.

Jo Ann initially calculated that Thomas had spent $647,970.56 above the

$4,000 monthly limit during the pendency of the divorce, and she itemized the

categories and corresponding amounts of those allegedly overspent funds. She

informed the court that not all of the included expenses were necessarily

“improper.” Among the $647,970.56 of Thomas’s expenditures itemized by Jo

Ann were $76,470.70 in attorney’s fees, $9,150.82 paid for insurance, $208,000

for a condominium in Colorado purchased shortly before trial, $130,000 in college

savings accounts for the middle and youngest sons, and several other categories of

alleged “excess” spending. At trial, Jo Ann admitted to spending $195,000 of

community funds above the $4,000 monthly limit, and thus “credited” that

$195,000 against the $647,970.56, thereby leaving a balance of $452,970.56 that

she demanded Thomas repay to the community estate. Subsequently, the trial

court subtracted $203,000 for the Colorado condo because it remained a

community asset subject to division, thereby leaving a balance of $249,970.56.

In its findings of fact and conclusions of law, the trial court found that

Thomas had “spent $249,970.56 of community property in violation of the agreed

temporary orders, of the parties’ mediated settlement agreement, and of his

fiduciary duty to petitioner; which constituted constructive fraud on the community

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estate.” The court further stated that it had taken Thomas’s “flagrant violation of

orders” into consideration in making a “just and right division” of the community

estate.

Thomas asserts that Jo Ann had to establish his “malevolent intent” in order

to substantiate her claim, yet there was no evidence that he demonstrated “deceit or

dishonesty of purpose” in his handling of community property. But Jo Ann did not

have to prove that Thomas had any such subjective intent in order to prevail on her

claim for constructive fraud on the community estate. Proof of a “dishonesty of

purpose or intent to deceive” is only required for actual fraud on the community, as

opposed to constructive fraud on the community. See Schlueter, 975 S.W.2d at

589–90. According to the findings of fact and conclusions of law, the trial court

found that Thomas had committed constructive fraud, not actual fraud. Thus, this

argument by Thomas lacks merit.

Thomas further argues that the trial court erroneously calculated Jo Ann’s

constructive fraud claim based upon two assets that, according to him, remained in

the community estate: the Colorado condominium and the sons’ college savings

accounts. The record reflects that although the trial court initially included the

value of the condominium in the valuation of Jo Ann’s constructive fraud claim,

the trial court subsequently removed it from that valuation upon Thomas’s

objection and Jo Ann’s stipulation to have it removed. Thus, as to the

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condominium, the trial court corrected any possible error and Thomas has not

shown that the alleged original error probably caused rendition of an improper

judgment. See TEX. R. APP. P. 44.1.

As to the college savings accounts, Thomas relies on Zorilla v. Wahid, 83

S.W.3d 247 (Tex. App.—Corpus Christi 2002, no pet.), to argue that the funds

remained community property and were therefore not wrongfully depleted. In

Zorilla, the court of appeals affirmed the division of a $600,000 education fund

held in one spouse’s name as community property. Zorilla, 83 S.W.3d at 251. In

this case, Thomas testified that he had set up two college savings plans: one for the

middle son and one for the youngest son. College savings plans may be

established in the name of an adult owner with a minor designated as the

beneficiary, or they may be owned by a minor or trust with an adult acting as the

account custodian or trustee. See U.S. v. Kieffer, No. 1:08-CR-54, 2010 WL

2231806, at *6–7 (D.N.D. April 28, 2010) (discussing two types of college savings

plans). Thomas did not testify as to which type of arrangement he opted for, and

he did not provide the trial court with any documentation concerning the accounts’

legal ownership. By contrast, in Zorilla, the education fund was held in one

spouse’s name, and thus that case is distinguishable. See Zorilla, 83 S.W.3d at

251.

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 Since there is no evidence that Jo Ann consented to the establishment of the

college savings accounts, Thomas, as the managing spouse of the funds used to set

up the accounts, had the burden to prove the fairness of the disposition to Jo Ann.

See Massey, 807 S.W.2d at 402. Without any evidence indicating that Jo Ann

retained a one-half interest in the college savings accounts or that the accounts had

been gifted to the children, the trial court did not abuse its discretion by implicitly

finding that Thomas had transferred $130,000 out of the community estate when he

established them. See id. at 403 (overruling challenge to constructive fraud finding

when appellant failed to account for significant sums of money borrowed against

community assets).

Thomas also argues that the trial court’s evaluation of the constructive fraud

claim erroneously included several items he was required or permitted to pay

pursuant to the agreed injunctions and temporary orders: insurance premiums,

federal income taxes, property taxes and utilities for a vacant lot, and attorney’s

fees. According to Thomas’s appellate brief, the sum of these expenditures is

$190,834. However, Jo Ann effectively deducted such items from her constructive

fraud claim by crediting $195,000 in Thomas’s favor, thereby reducing her claim

by more than the amount that Thomas contends should not have been included.

Accordingly, we conclude that Thomas has not shown that Jo Ann’s proposed

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calculation in support of her constructive fraud claim probably caused rendition of

an improper judgment. See TEX. R. APP. P. 44.1.

Thomas additionally argues that the trial court abused its discretion by

recognizing a “waste claim” greater than what Jo Ann had requested, improperly

using the division of the community estate as a means to punish him, and making a

division that left Thomas with a lesser share of the community estate than the trial

court actually intended. These are not objections that go to the legal and factual

sufficiency of the evidence, and thus it was necessary for Thomas to have made

them in the trial court in order to raise them on appeal. See TEX. R. APP. P. 33.1(a),

(d). The record does not reflect that Thomas raised these objections in the trial

court, and we consequently do not address them.

In summary, Thomas has not demonstrated on appeal that the trial court

erred in finding constructive fraud on the community estate or in valuing the

amount of the wrongfully disposed assets. Accordingly, we overrule Thomas’s

first issue.

II. Spousal maintenance

In his second issue, Thomas argues that the trial court abused its discretion

in awarding Jo Ann spousal maintenance of $2,500 per month for up to twelve

months. He asserts that Jo Ann was not eligible for spousal maintenance because

she did not demonstrate that she had diligently searched for employment, and

15
because she was awarded a share of the community estate that was sufficient to

satisfy her reasonable minimum needs. Jo Ann argues that she established that she

could not obtain employment adequate to support her reasonable minimum needs

and that the spousal maintenance was proper because the assets awarded to her are

not easily liquidated.

“We review the award of spousal maintenance under an abuse of discretion

standard.” Dunn, 177 S.W.3d at 396. “A trial court abuses its discretion when it

rules arbitrarily, unreasonably, without regard to guiding legal principles, or

without supporting evidence.” Id. “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.” Id.

The Family Code establishes criteria for determining the eligibility to

receive spousal maintenance and the appropriate amount to be ordered. See

generally TEX. FAM. CODE ANN. §§ 8.051–.061 (West 2006 & Supp. 2011).

During the pendency of this appeal, the Legislature amended several Family Code

provisions concerning spousal maintenance. See generally Act of June 17, 2011,

82nd Leg., R.S., ch. 486, 2011 Tex. Sess. Law Serv. 1239 (West) (to be codified at

TEX. FAM. CODE § 8.051 et seq.). Pursuant to that amending act, we apply the

statutes in effect at the time that the divorce suit commenced. See id. § 10(a).

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 “The legislative purpose in enacting provisions for spousal maintenance was

to provide temporary and rehabilitative support for a spouse whose ability for self-

support is lacking or has deteriorated over time while engaged in homemaking

activities and whose capital assets are insufficient to provide support.” O’Carolan

v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.). Spousal

maintenance is not property, and the award of spousal maintenance should not

factor into a “just and right” division of community property. See id.

To be eligible for statutory spousal maintenance, the spouse seeking

maintenance must have been married to the other spouse at least 10 years, and she

must lack sufficient property to provide for her minimum reasonable needs. She

must also meet one of the following criteria: (1) she is unable to support herself

because of an incapacitating physical or mental disability; (2) she is the custodian

of the couple’s child who has a physical or mental disability that requires

substantial care and personal supervision, or (3) she “clearly lacks earning ability

in the labor market adequate to provide support for the spouse’s minimum

reasonable needs.” See Act of June 18, 2005, 79th Leg., R.S., ch. 914, § 1,

sec. 8.051, 2005 Tex. Gen. Laws 3146, 3146; see also Cooper v. Cooper, 176

S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (interpreting

substantially similar predecessor statute). “A court that determines that a spouse is

eligible to receive maintenance . . . shall determine the nature, amount, duration,

17
and manner of periodic payments by considering all relevant factors.” Act of

June 14, 2001, 77th Leg., R.S., ch. 807, § 1, sec. 8.052, 2001 Tex. Gen. Laws

1574, 1575–76. Generally, there is a presumption that spousal maintenance is not

warranted unless the spouse seeking maintenance has exercised diligence in either

seeking suitable employment, or in developing the necessary skills to become self-

supporting while the spouses are separated and the divorce action is pending. See

Act of June 18, 2005, 79th Leg., R.S., ch. 914, § 2, sec. 8.053, 2005 Tex. Gen.

Laws 3146, 3146–47; Cooper, 176 S.W.3d at 64.

When considering whether the spouse seeking spousal maintenance will

have sufficient property after the divorce to provide for her minimum reasonable

needs, the trial court may consider the liquidity of the assets awarded to her and

their ability to produce income. See Dunaway v. Dunaway, No. 14-06-01042-CV,

2007 WL 3342020, at *3 (Tex. App.—Houston [14th Dist.] Nov. 13, 2007, no pet.)

(mem. op.); In re McFarland, 176 S.W.3d 650, 659 (Tex. App.—Texarkana 2005,

no pet.); Alaghehband v. Abolbaghaei, No. 03-02-00445-CV, 2003 WL 1986777,

at *5 & n.1 (Tex. App.—Austin May 1, 2003, no pet.) (mem. op.). The term

“minimum reasonable needs” is not defined in the Family Code. Cooper, 176

S.W.3d at 64. Determining what the minimum reasonable needs are for a

particular individual is fact-specific and should be made by the trial court on a

case-by-case basis. Id. “In considering assets awarded in the divorce, the law does

18
not require a spouse to spend down long-term assets, liquidate all available assets,

or incur new debt simply to obtain job skills and meet needs in the short term.”

Dunaway, 2007 WL 3342020, at *3.

A. Diligence in obtaining employment and necessary skills

Jo Ann has a bachelor’s degree in petroleum engineering. She testified that

she searched for an entry-level engineering job after arriving in Texas, submitting

resumes to various companies and networking with other engineers. During the

pendency of the divorce, Jo Ann was “approved” for a position at a disaster relief

company, but she was not hired when funding for a particular project “never came

through.” At the time of trial, she was scheduled for a follow-up interview with a

Scandinavian oil company and for other interviews for a retail company and a

management position. Nonetheless, Jo Ann testified that her age, the time elapsed

since she last worked, and the difficult economy hindered her efforts to obtain

employment. She further testified that she could fill a minimum wage position and

that she had been doing substitute teaching while working on her teacher’s

certification and computer skills. Jo Ann testified to having earned about $600 for

having worked six or seven days as a substitute teacher, but various health

problems requiring surgery and recuperative therapy prevented her from working

more. Conversely, Thomas testified that Jo Ann could have furthered her

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education or sought a job during the pendency of the divorce, but she instead chose

to “just stay home.”

The trial court made the following findings of fact:

13. The duration of the marriage was more than ten years; [Jo Ann]
lacks sufficient property, including property distributed to her in the
divorce, to provide for her minimum reasonable needs, and presently
clearly lacks earning ability in the labor market adequate to provide
support for her minimum reasonable needs.

14. [Jo Ann] has been seeking suitable employment during the time
the suit for dissolution of marriage is pending, as well as working to
develop the necessary skills to return to the work force and become
self-supporting.

15. The following factors were taken into consideration in
determining the nature, amount, duration and manner of periodic
payments: Because [Thomas] depleted the liquid assets in the estate,
in violation of his fiduciary duty and of the temporary orders, [Jo
Ann] will receive little in the way of liquid assets. Until she is able to
collect the judgment awarded her, [Jo Ann] will not have sufficient
funds to continue her schooling and provide for her minimum
reasonable needs. The duration of spousal support is for 12 months,
or until [Jo Ann] obtains employment which nets her $2500 per month
after taxes, whichever occurs sooner.

A trial court, as the trier of fact, is the sole judge of the credibility of the witnesses

and the weight to be given their testimony and may accept or reject all or any part

of that testimony. Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex. App.—

Houston [1st Dist.] 1994, no writ). Thus, the trial court had discretion to credit Jo

Ann’s testimony over Thomas’s concerning her diligence in obtaining employment

and necessary skills. See id. The evidence in this case was sufficient to support

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the trial court’s conclusion that Jo Ann demonstrated diligence in seeking suitable

employment or in developing necessary skills to support herself. See, e.g.,

Alexander v. Alexander, 982 S.W.2d 116, 118–19 (Tex. App.—Houston [1st Dist.]

1998, no pet.).

B. Sufficiency of property after divorce

Thomas also argues that Jo Ann was not eligible for spousal maintenance

because she received sufficient property after the divorce to provide for her

reasonable minimum needs. Jo Ann presented a worksheet that itemized the

“necessary monthly living expenses” for her and her son, which totaled $7,073.

The monthly child support assessed against Thomas—$1,500 for the statutory

presumptive amount, $1,150 for private school expenses, and $83 for summer

camp—is $2,733 per month. Thomas did not challenge the amount of these

expenses in the trial court, nor does he challenge them on appeal. Thus, after

subtracting the monthly child support, Jo Ann’s remaining monthly expenses total

$4,340 per month.

The divorce decree awarded as separate property to Jo Ann several liquid or

easily liquidated assets in the form of savings, checking, money market and stock

accounts that were worth a combined $87,621 according to the trial court’s

valuation. Although Jo Ann received several retirement assets worth several

hundred thousand dollars, the trial court was not required to consider these illiquid

21
assets in making its determination of spousal maintenance. See Dunaway, 2007

WL 3342020, at *3.

The evidence supported a conclusion that Jo Ann’s monthly expenses of

$4,340 would consume her liquid and easily liquidated assets in less than 21

months. After including the maximum spousal maintenance award of $30,000

over twelve months, Jo Ann’s monthly expenses would exhaust her combined

spousal maintenance and liquid and easily liquidated assets in less than 28 months.

By comparison, the Family Code in effect at the time of the spousal maintenance

order generally allowed a trial court to award an eligible spouse maintenance for

up to three years from the date of the order, subject only to the requirement that the

maintenance order be limited to the shortest reasonable period to allow that spouse

to earn sufficient income to meet her minimum reasonable needs. See Act of June

14, 2001, 77th Leg., R.S., ch. 807, § 1, sec. 8.054, 2001 Tex. Gen. Laws 1574,

1576. If the Legislature considered a maximum of 36 months an appropriate outer

limit during which a former spouse should pay spousal maintenance, we cannot

conclude that the trial court abused its discretion in awarding to Jo Ann liquid and

easily liquidated assets and spousal maintenance that would last her up to 28

months. See, e.g., McFarland, 176 S.W.3d at 659.

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 Thomas has not demonstrated that the trial court’s order on spousal

maintenance constituted an abuse of discretion. Accordingly, we overrule his

second issue.

III. Child support

In his third issue, Thomas challenges the trial court’s award of child support

to the extent that it exceeded the statutory guidelines. He was ordered to pay

$1,500 per month in child support, which is the statutory guideline for one minor

child given Thomas’s net monthly resources, plus all of the child’s private school

tuition and costs, and annual camp costs of up to $1,000. Thomas argues that the

trial court did not file adequate findings to support the above-guidelines award, as

required by statute. He also argues that there was insufficient evidence that the

awards for private school and camp expenses were for “proven needs” of the minor

child.

Jo Ann argues that the applicable statutes do not require the trial court to file

findings of fact when the child support obligor earns a monthly net income of more

than $7,500, but even if the statutes do require it, the court made all the findings

that Thomas had requested. As to the private school expenses, she argues that the

record reflects undisputed testimony concerning the youngest son’s additional

needs. She alternatively argues that because Thomas requested the trial court order

that he pay for the child’s private school expenses, Thomas may not complain

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about it on appeal. As to the summer camp, she argues that the costs were not

disputed by Thomas and that his annual contribution was capped in a way that

obligated Jo Ann to share the costs.

A. Invited error

“As a general rule, the doctrine of estoppel precludes a litigant from

requesting a ruling from a court and then complaining that the court committed

error in giving it to him.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex.

2005). “The doctrine is grounded in justice and dictated by common sense.” Id.

To be estopped from complaining of an alleged judicial error on appeal, the trial

court must have taken a specific action that the complaining party requested, and

the complaining party must have unequivocally taken a position in the trial court

that is clearly adverse to its position on appeal. See id. at 862.

At the close of the trial testimony, the trial court ruled that the minor son

would go to private school, but the court did not state at that time who would be

required to pay for it and in what amount. Thomas did not object to the ruling at

that time. During a hearing on the parties’ requested relief, Thomas’s counsel

informed the court that “based on what you told us about your inclination on

paying,” Thomas was seeking an order that he pay $9,000 per year to the child’s

private school. The trial court subsequently ordered that Thomas pay all tuition

and expenses related to the private school. In his motion for reconsideration,

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Thomas objected that the evidence did not prove that the child had needs beyond

what the statutory presumptive amount could satisfy. The court overruled the

objection at a hearing on the motion.

On this record, we do not conclude that Thomas is estopped from

challenging on appeal the orders on child support, because the trial court did not

take a specific action that Thomas requested. After the trial court ruled that the

youngest son would attend private school, Thomas requested that the trial court

order that he pay a lump sum of $9,000 per year for tuition. Instead, the trial court

ordered that he pay all tuition and related expenses, without a dollar-figure

limitation. Because Thomas’s request varies from the trial court’s order, the

invited error doctrine is inapplicable. See Tittizer, 171 S.W.3d at 862 (holding no

invited error when trial court granted relief similar but not identical to appellant’s

requested relief). As to the summer camp expenses, there is no indication in the

record that Thomas ever requested that he be ordered to pay for that. Thus,

Thomas is not estopped on appeal from challenging the above-guidelines child

support orders for private school and camp costs. See id.

B. Fact findings

The Family Code provides that the trial court, in rendering an order of child

support, shall make certain findings in the child support order if (1) a party files a

written request with the court not later than 10 days after the date of the hearing;

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(2) a party makes an oral request in open court during the hearing; or (3) the

amount of child support ordered by the court varies from the amount computed by

applying the statutory percentage guidelines, as applicable. TEX. FAM. CODE ANN.

§ 154.130 (West Supp. 2011). The language in Section 154.130 is mandatory, and

in an appropriate case, this court may stay proceedings and direct the court to

prepare a supplemental transcript containing the statutorily required findings. See

Chamberlain v. Chamberlain, 788 S.W.2d 455, 455 (Tex. App.—Houston [1st

Dist.] 1990, writ denied). Alternatively, this court may reverse and remand the

case for a new trial. See Hanna v. Hanna, 813 S.W.2d 626, 628 (Tex. App.—

Houston [1st Dist.] 1991, no writ).

In this case, the trial court filed “Child Support Findings of Fact” that were,

according to the findings, “in accordance with Texas Family Code 154.130.”

Thomas’s challenge to these findings does not go to their existence, but rather to

their sufficiency and compliance with Section 154.130. Any alleged error for

failure to enter more specific findings is harmless when the complaining party has

not demonstrated, or even argued, that the lack of more specific findings prevented

him from properly presenting a case to the appellate court. Kendall v. Kendall, 340

S.W.3d 483, 514 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Because Thomas

has not argued or demonstrated that he was prevented from properly presenting a

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case to this court, we conclude that to the extent he challenges the adequacy of the

findings, any error in that regard was harmless. See id.

C. Challenges to child support award

A trial court has discretion to set child support within the parameters

provided by the Family Code. Iliff, 339 S.W.3d at 78. “A court’s order of child

support will not be disturbed on appeal unless the complaining party can show a

clear abuse of discretion.” Id. (quoting Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990) (per curiam)). A trial court abuses its discretion when it acts

arbitrarily or unreasonably, or by failing to analyze or apply the law correctly. Id.

The Family Code provides a bifurcated analysis in setting child support,

depending on whether an obligor has net monthly resources above or below

$7,500. See Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.—Houston

[1st Dist.] 1997, pet. denied); TEX. FAM. CODE ANN. § 154.125 (West Supp. 2011);

id. § 154.126 (West 2008). The trial court found that Thomas’s statutory net

resources exceeded $7,500 per month, and the parties do not dispute this finding.

The pertinent statute concerning the calculation of support for an obligor who has

more than $7,500 in monthly net resources reads as follows:

(a) If the obligor’s net resources exceed [$7,500], the court shall
presumptively apply the percentage guidelines to the portion of the
obligor’s net resources that does not exceed that amount. Without
further reference to the percentage recommended by these guidelines,
the court may order additional amounts of child support as

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 appropriate, depending on the income of the parties and the proven
needs of the child.

(b) The proper calculation of a child support order that exceeds the
presumptive amount . . . requires that the entire amount of the
presumptive award be subtracted from the proven total needs of the
child. After the presumptive award is subtracted, the court shall
allocate between the parties the responsibility to meet the additional
needs of the child according to the circumstances of the parties.
However, in no event may the obligor be required to pay more child
support than the greater of the presumptive amount or the amount
equal to 100 percent of the proven needs of the child.

TEX. FAM. CODE ANN. § 154.126. Subsection (a) grants the court discretion to

order additional amounts over and above the presumptive award, depending on the

income of the parties and the proven needs of the child. Nordstrom, 965 S.W.2d at

579 & n.4. If the court awards more than the presumptive amount, subsection (b)

requires that the court first determine the proven needs of the child. Id. at 579. If

the needs of the child exceed the presumptive award, the court must subtract the

presumptive award from those needs. Id. The court must then allocate between

the parties the responsibility to meet the additional needs of the child, depending

on the circumstances of the parties. Id. However, the court is forbidden from

requiring the obligor to pay more than 100% of the proven needs of the child. Id.

What constitutes the “proven needs of the child” is not defined by statute.

Id. (citing Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993)).

“‘[N]eeds of the child’ includes more than the bare necessities of life, but is not

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determined by the parents’ ability to pay or the lifestyle of the family.” Rodriguez,

860 S.W.2d at 417 n.3 (interpreting predecessor child-support statute). “[I]n child

support decisions, the ‘paramount guiding principle’ of the trial court should

always be the best interest of the child.” Iliff, 339 S.W.3d at 81 (quoting

Rodriguez, 860 S.W.2d at 417 n.3).

1. Private school

The Everitts’ children had always attended private schools, except for the

first year after Jo Ann and her youngest son returned to Texas, during which time

the youngest son attended public school. Jo Ann testified that she and Thomas

agreed that their youngest son would attend private school in Texas. However, the

mediated settlement agreement stated that the youngest son would remain

“enrolled in public school determined by attendance zone of [Jo Ann]’s residence.”

Thomas testified that he did not consent to Jo Ann enrolling his youngest son in

private school and that he first learned of Jo Ann’s decision when he received the

private school’s billing statement.

When asked whether she was happy with the public school that her son

initially attended, Jo Ann testified:

Well, [my son] was [happy], I think, his year worked out well. But
what I didn’t like about it was his class size, what he was accustomed
to. It was only fifth and sixth grades and there were probably 15 sixth
grade classes—yeah, about 16 sixth grade classes. And I just felt in
the classroom there were about 32 kids in each classroom and he had

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 been accustomed to smaller groups and only maybe three or four of
that grade class in that class.

She testified that although the public school was “not an exemplary school,” it was

“a good school.” When Jo Ann attempted to enroll the youngest son in private

school, Thomas filed a motion to block it. But Thomas subsequently withdrew the

motion after the child’s guardian ad litem convinced him that the private school

was superior to the local public schools. Jo Ann testified that her son was doing

well at the private school, he was happy, he had made friends, and he was playing

soccer there. The child’s most recent report card showed that he had received

grades ranging between “exceeds minimum standards” and “far exceeds minimum

standards.”

Jo Ann testified that Thomas was unhappy with the public school that the

youngest son initially attended. However, Thomas testified that he would have

accepted his son attending public school in another part of Harris County. He

denied that the youngest son had particular educational needs requiring him to

attend private school. At the close of the parties’ testimony, the trial court stated

that the minor child would “go to the [private] school. It’s a very fine school. We

will give him an excellent education.”

The foregoing testimony supports the trial court’s determination that it was

in the best interest of the youngest child to remain in the private school. Jo Ann

testified to that effect, and she presented a report card showing that her son was
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performing well there. As the child’s managing conservator, she was in the best

position to explain the needs of the child. Scott v. Younts, 926 S.W.2d 415, 421

(Tex. App.—Corpus Christi 1996, writ denied). Although Thomas refused to pay

for his youngest son’s private school, he withdrew a motion seeking to enjoin

enrollment after the guardian ad litem convinced him that the private school was

the superior choice. The trial court could have reasonably inferred that Thomas

recognized that the private school was in the child’s best interest.

“In evaluating the needs of the child, and, thus, the exercise of the court’s

discretion in determining those needs, we are guided by the paramount principle in

child support decisions: the best interest of the child.” Nordstrom, 965 S.W.2d at

579 (citing Rodriguez, 860 S.W.2d at 417 n.3). Although private school may not

be a bare necessity for the minor child, it is not necessarily a lifestyle choice,

either. See Rodriguez, 860 S.W.2d at 417 n.3; Scott, 926 S.W.2d at 422. Given the

child’s good academic performance and social adjustment at the private school, Jo

Ann’s decision to enroll him there after having tried the public school for one year,

and Thomas’s decision to withdraw his legal opposition to that enrollment on the

advice of the guardian ad litem, we conclude that the trial court was presented with

sufficient evidence of the child’s best interest and need to remain in the private

school. In light of the evidence and the trial court’s broad discretion in child

support matters, we hold that the court did not abuse its discretion in ordering

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Thomas to pay for the child’s private school and related expenses. See Hatteberg,

933 S.W.2d at 530; Scott, 926 S.W.2d at 422.

2. Summer camp

Jo Ann requested $115 per week, or $1,380 per year, for the youngest son’s

camp costs. The trial court’s final decree ordered Thomas to pay for one camp

activity per year, and it capped his annual contribution for that expense at $1,000.

The divorce decree expressly stated that it was the court’s intention that the

youngest son “enjoy . . . the broadening experiences of a camp each year similar to

those of his older brothers.”

The part of the decree explaining the order on camp costs apparently

references Thomas’s testimony. Responding to questions concerning his expenses

during the pendency of the divorce, Thomas testified that his older sons had

participated in a mandatory summer program organized by their school in Cairo.

The program allowed students to visit various foreign countries to study another

culture, perform service-oriented activities, or experience an adventure. He

testified that the program was “a tremendous opportunity for the kids to go see

other parts of the world to understand how other people live” and that it was

“important” for the boys to travel and experience such things.

From this testimony, the trial court could have reasonably concluded, as it

apparently did, that it was in the youngest son’s best interest to have a summer

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camp experience similar to what his older brothers enjoyed. Although camp and

extracurricular activities “are not bare necessities, we cannot say that they are

contrary to the best interests of the child.” Id.; see also In re T.A.W., No. 02-09-

00309-CV, 2010 WL 4813356, at *8 (Tex. App.—Fort Worth Nov. 24, 2010, no

pet.) (mem. op.) (overruling challenge that camp and recreation are not needs).

Given Thomas’s testimony and the broad discretion allowed courts to determine

the needs of the child, we hold that the trial court did not abuse its discretion in

ordering Thomas to pay for annual camp expenses. See Hatteberg, 933 S.W.2d at

530; Scott, 925 S.W.2d at 422.

We overrule Thomas’s third issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

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