Opinion issued December 22, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00023-CV
———————————
JEFFERY DWAYNE BENOIT, Appellant
V.
BRENDA FAYE BENOIT, Appellee
On Appeal from County Court at Law No. 2
Orange County, Texas
Trial Court Case No. E-140080-D1
MEMORANDUM OPINION
Jeffrey Dwayne Benoit appeals from a divorce decree, dissolving his
marriage to Brenda Faye Benoit. In fifteen issues, Jeffrey challenges the trial
1
This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
transferred by the Supreme Court of Texas, pursuant to its docket equalization
authority, to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
court’s award of spousal maintenance and its award of appellate attorney’s fees in
a post-decree temporary order.
We affirm the divorce decree. We reverse the portion of the post-decree
order awarding attorney’s fees and remand that issue to the trial court for
redetermination.
Background
Brenda and Jeffrey were married on February 16, 1990. Jeffrey filed for
divorce on January 14, 2013. Brenda filed a counter-petition. Before trial, the
parties entered into a Rule 11 agreement, governing the division of property and
debts between the parties. The case was tried to the bench on August 14, 2014.
The parties agreed that the only issue to be resolved at trial was whether Brenda
was entitled to spousal maintenance.
At trial, Brenda stated that she would be 65 years old the following month.
She testified that she netted $706 per month in social security disability benefits,
and she confirmed that would be her only income after the divorce. 2 She stated
that she had been receiving disability benefits since 2005. Brenda testified that she
had been employed in the past, but she had to stop working because she suffered
from spasms in her neck, back, legs, arms, and hands, and she has carpal tunnel
2
Brenda testified that the gross amount of her disability benefits was $806;
however, $100 of that amount is paid to Medicare.
2
syndrome. With respect to her educational level, Brenda indicated that she had a
GED.
Brenda also presented evidence to establish her monthly living expenses. As
an exhibit, Brenda offered an expense sheet listing her monthly expenses in 12
different categories. Brenda testified regarding a number of these categories. The
evidence showed that her monthly living expenses were $2,809.
Averaging Jeffrey’s earnings from the last three years, Brenda submitted
evidence indicating that Jeffrey had an average monthly income of $8,122.75.
Brenda requested that she receive 20 percent, or $1,625 a month, in spousal
maintenance from Jeffrey for the next seven years. In its October 30, 2014 decree,
the trial court granted Brenda’s request and ordered Jeffrey to pay Brenda $1,625 a
month in spousal maintenance for seven years. The decree also provided that early
termination of the spousal maintenance provision would occur at the death of
either party, Brenda’s re-marriage, or on further order by the trial court, including a
finding of cohabitation by Brenda. The decree also divided the property and debt
as set out in the parties’ Rule 11 agreement.
Jeffrey requested findings of fact and conclusions of law, which were filed
by the trial court. Among its findings of fact, the trial court determined:
4. [Brenda] will lack sufficient property, including her separate
property, on dissolution of the marriage to provide for her
minimum reasonable needs.
3
5. [Brenda] is unable to earn sufficient income to provide for her
minimum reasonable needs because of an incapacitating
physical disability.
6. The following factors were taken into consideration in
determining the nature, amount, duration, and manner of
periodic payments:
(a) each spouse’s ability to provide for that spouse’s
minimum reasonable needs independently, considering
that spouse’s financial resources on dissolution of the
marriage;
(b) the education and employment skills of the spouses,
the time necessary to acquire sufficient education or
training to enable the spouse seeking maintenance to earn
sufficient income, and the availability and feasibility of
that education or training;
(c) the duration of the marriage;
(d) the age, employment history, earning ability, and
physical and emotional condition of the spouse seeking
maintenance;
(e) the effect on each spouse’s ability to provide for that
spouse’s minimum reasonable needs while providing
periodic child support payments or maintenance, if
applicable;
(f) acts by either spouse resulting in excessive or
abnormal expenditures or destruction, concealment, or
4
fraudulent disposition of community property, joint
tenancy, or other property held in common;
(g) the contribution by one spouse to the education,
training, or increased earning power of the other spouse;
(h) the property brought to the marriage by either spouse;
and
(i) the contribution of a spouse as homemaker.
7. [Brenda] and [Jeffrey] were married for at least twenty years
but not more than thirty years.
8. [Jeffrey] is forty-seven years old. [Brenda] is sixty-five years
old.
9. [Brenda’s] ability to provide for her minimum reasonable needs
is substantially or totally diminished because of a physical
disability. [Brenda] is currently receiving Social Security
Disability benefits.
10. The average monthly gross income of [Jeffrey] is $8,122.75.
Twenty percent (20%) of that amount is $1,624.55.
11. [Brenda’s] monthly gross income, including the court ordered
spousal maintenance, is $2,331.00. [Brenda’s] average monthly
living expenses are $2,809.00.
5
Based on the findings of fact, the trial court stated, in a conclusion of law, that
Jeffrey should pay monthly spousal maintenance of $1,625 to Brenda for seven
years.
Jeffrey appealed the trial court’s decree on November 24, 2014. That same
day, Brenda filed a motion for temporary orders, pending appeal. In response to
Brenda’s request for temporary orders, Jeffrey filed a plea to the jurisdiction. He
asserted that the trial court lost plenary power when the notice of appeal was filed.
The trial court conducted a hearing on the plea to the jurisdiction and on the
request for temporary orders. The trial court denied Jeffrey’s plea and granted
Brenda’s request for temporary orders. On December 15, 2014, the trial court
signed an order, requiring Jeffrey to pay Brenda $1,625.00 per month in temporary
spousal support, while the appeal is pending. The order also required Jeffrey to
pay Brenda $5,000 in appellate attorneys’ fees by March 1, 2015. The award was
not conditioned on Jeffrey’s failure to succeed on appeal.
This appeal was originally filed in the Ninth Court of Appeals. In that court,
Jeffrey filed a motion to stay, abate, vacate, or reform the trial court’s
unconditional award of $5,000 appellate attorneys’ fees. On January 8, 2015, the
Supreme Court of Texas transferred the appeal to this Court pursuant to its docket
equalization authority. As a result, Jeffrey’s motion to stay, abate, vacate, or
reform the trial court’s unconditional award of $5,000 in appellate attorneys’ fees
6
was also transferred to this Court. In considering the motion, we explained that the
$5,000 attorneys’ fee award should have been conditioned on Jeffrey’s
unsuccessful appeal. We noted that such error did not require reversal of the order
because the order could be modified on appeal. We stayed the trial court’s
temporary order with respect to the requirement that Jeffrey had to pay Brenda
$5,000 for appellate attorney’s fee. Although we granted Jeffrey’s motion with
respect to the stay, we did not modify the attorney’s fees award. Instead, we
ordered that Jeffrey’s alternate motion to abate, vacate, or reform the trial court’s
temporary order would be considered with the merits of the appeal.
Spousal Maintenance
Jeffrey challenges that trial court’s award of spousal maintenance in his first
through eleventh issues and in his fifteenth issue.
A. Standard of Review
We review a trial court’s ruling on spousal maintenance under an abuse of
discretion standard. Tomsu v. Tomsu, 381 S.W.3d 715, 718 (Tex. App.—
Beaumont 2012, no pet.); Bonner v. Bonner, No. 09–11–00194–CV, 2011 WL
5588746, at *1 (Tex. App.—Beaumont Nov. 17, 2011, no pet.) (mem. op.) (citing
Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—Dallas 2001, pet. denied)). A
trial court abuses its discretion when it acts in an arbitrary or unreasonable manner,
or when it acts without reference to any guiding principles. Downer v.
7
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court’s
findings of fact are reviewed for legal and factual sufficiency of the evidence under
the same legal standards applied to review jury verdicts for legal and factual
sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996);
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
The abuse-of-discretion standard of review overlaps with traditional
sufficiency standards of review in family law cases. See In re S.N.Z., 421 S.W.3d
899, 908–09 (Tex. App.—Dallas 2014, pet. denied). As a result, legal and factual
insufficiency challenges are not independent grounds for reversal; rather, these
challenges constitute factors relevant to the assessment of whether the trial court
abused its discretion. See Wilson v. Wilson, No. 09–07–484 CV, 2008 WL
2758147, at * 1 (Tex. App.—Beaumont July 17, 2008, no pet.) (referencing
Granger v. Granger, 236 S.W.3d 852, 856 (Tex. App.—Tyler 2007, pet. denied));
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied).
“Accordingly, to determine whether there has been an abuse of discretion because
the evidence is legally or factually insufficient to support the trial court’s decision,
we engage in a two-pronged inquiry: (1) did the trial court have sufficient evidence
upon which to exercise its discretion, and (2) did the trial court err in its
application of that discretion?” Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—
Fort Worth 2004, no pet.).
8
With respect to the first question, we apply the appropriate sufficiency
standard. In re B.P.R., No. 09–12–00575–CV, 2014 WL 5306530, at *5 (Tex.
App.—Beaumont Oct. 16, 2014, no pet.) (citing Boyd, 131 S.W.3d at 611). With
respect to the second question, we determine whether, based on the evidence
presented at trial, the trial court made a reasonable decision. Id. (citing Moroch,
174 S.W.3d at 857). “Stated inversely, we must conclude that the trial court’s
decision was neither arbitrary nor unreasonable.” Boyd, 131 S.W.3d at 611.
In determining whether there is legally sufficient evidence to support a
finding, we examine the record and credit evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding unless a
reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). A trial judge does not abuse his discretion if some evidence of a
substantial and probative character exists to support the decision. Wilson, 2008
WL 2758147, at * 1 (citing Granger, 236 S.W.3d at 855–56).
In a factual sufficiency review, we consider all the evidence supporting and
contradicting the factfinder’s finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237,
242 (Tex. 2001). The evidence is factually insufficient if the finding is so against
the great weight and preponderance of the evidence as to be clearly wrong and
unjust. Id. When sitting as factfinder, the trial court is in the best position to judge
9
and weigh all the evidence presented and resolve the substantial conflicts in the
evidence. See Wilson, 2010 WL 2545579, at *5–6.
B. Applicability of Presumption against Spousal Maintenance
In his first three issues, Jeffrey asserts that Brenda failed to rebut the
statutory presumption, found in Family Code section 8.503, that spousal
maintenance is not warranted. Brenda responds that, pursuant to the trial court’s
findings of fact, the presumption does not apply to the trial court’s award in this
case. We agree with Brenda.
A trial court may exercise its discretion and award spousal maintenance if
the party seeking maintenance meets specific eligibility requirements found in
Family Code section 8.051, entitled “Eligibility for Maintenance.” TEX. FAM.
CODE ANN. § 8.051 (Vernon Supp. 2014). Relevant to this case, Family Code
section 8.051(2) provides:
In a suit for dissolution of a marriage or in a proceeding for
maintenance in a court with personal jurisdiction over both former
spouses following the dissolution of their marriage by a court that
lacked personal jurisdiction over an absent spouse, the court may
order maintenance for either spouse only if the spouse seeking
maintenance will lack sufficient property, including the spouse’s
separate property, on dissolution of the marriage to provide for the
spouse’s minimum reasonable needs and:
....
(2) the spouse seeking maintenance:
10
(A) is unable to earn sufficient income to provide for the
spouse’s minimum reasonable needs because of an
incapacitating physical or mental disability;
(B) has been married to the other spouse for 10 years or longer
and lacks the ability to earn sufficient income to provide for the
spouse’s minimum reasonable needs; or
(C) is the custodian of a child of the marriage of any age who
requires substantial care and personal supervision because of a
physical or mental disability that prevents the spouse from
earning sufficient income to provide for the spouse’s minimum
reasonable needs.
Id.
In its findings of fact, the trial court determined that “[Brenda] is unable to
earn sufficient income to provide for her minimum reasonable needs because of an
incapacitating physical disability.”3 The trial court’s finding indicates that it
3
Jeffrey has raised no specific issue challenging this finding. He does, however,
weave comments throughout his briefing that indicate he questions the trial court’s
incapacity finding. In any event, we note that sufficient evidence was presented to
support this finding. Brenda, who was almost 65 years old, testified that she has
been receiving social security disability payments since 2005. She also testified
that she worked as a endoscopy technician in a doctors’ office until 2000. As part
of her job she had to use a scope. She had to quit that job because she had neck,
back, leg, arm, and hand spasms, and she could no longer grip the scope. In
addition, she stated that she has carpal tunnel syndrome, which prevented her from
being able to perform her job duties. Brenda later worked part-time at a daycare.
She testified that she had to quit that job because, on a number of occasions, she
nearly dropped babies that she was holding due to her weak arms. Brenda
admitted that she can engage in certain household and recreational activities. She
testified that she does these activities at her own pace and that, after she engages in
certain activities, she “pay[s] for it the next day.” From this, the trial court could
have reasonably found that, while Brenda can engage in certain activities on
occasion, she could not engage in them for employment purposes.
11
determined Brenda was entitled to spousal maintenance pursuant to Family Code
section 8.051(2)(A). See id.
In his brief, Jeffrey asserts that Brenda was required to “overcome the
presumption found in [Family Code section] 8.053 that maintenance would be
unwarranted for her.” We disagree.
Section 8.053 provides,
(a) It is a rebuttable presumption that maintenance under Section
8.051(2)(B) is not warranted unless the spouse seeking maintenance
has exercised diligence in:
(1) earning sufficient income to provide for the spouse’s
minimum reasonable needs; or
(2) developing the necessary skills to provide for the spouse’s
minimum reasonable needs during a period of separation and
during the time the suit for dissolution of the marriage is
pending.
Id. § 8.053 (Vernon Supp. 2014). Reading the plain language of section 8.053, a
spouse who has been found under section 8.051(2)(B) to be eligible to receive
spousal maintenance because she “has been married to the other spouse for 10
years or longer and lacks the ability to earn sufficient income to provide for the
spouse’s minimum reasonable needs” must also rebut the section 8.053
presumption that maintenance is unwarranted. Id. §§ 8.051(2)(B), 8.053; see Day
v. Day, 452 S.W.3d 430, 434–35 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). To rebut the presumption, a spouse eligible for maintenance under section
12
8.051(2)(B) must show that she has “exercised diligence” in “earning sufficient
income to provide for the spouse’s minimum reasonable needs” or in “developing
the necessary skills to provide for the spouse’s minimum reasonable needs.” Id.
§ 8.053; see Day, 452 S.W.3d at 434–35.
As mentioned, the trial court found Brenda was eligible to receive spousal
maintenance under section 8.051(2)(A) because she was “unable to earn sufficient
income to provide for her minimum reasonable needs because of an incapacitating
physical disability.” The trial court did not find she was eligible to receive
maintenance under section 8.051(2)(B). The rebuttable presumption against
maintenance, stated in section 8.053, does not apply in this case. As a result,
Brenda had no obligation to offer evidence showing that she “exercised diligence”
in “earning sufficient income to provide for [her] minimum reasonable needs” or in
“developing the necessary skills to provide for [her] minimum reasonable needs,”
as required by section 8.053. Id. § 8.053.
In his brief, Jeffrey points out that Family Code section 8.053 was amended
in 2011. Act of May 18, 2011, 82nd Leg., R.S., ch. 486, § 9, 2011 Tex. Sess. Law
Serv. 1239, 1242. The amendment is the current version of the statute and applies
to this case. See Act of May 18, 2011, 82nd Leg., R.S., ch. 486, § 10(a), 2011 Tex.
Sess. Law Serv. 1239, 1242. Jeffrey notes that, before that amendment, section
8.053 specifically excluded spouses who had “an incapacitating physical or mental
13
disability” from the rebuttal presumption. Act of April 3, 1997, 75th Leg., R.S.,
ch. 7, § 1, sec. 8.004, 1997 Tex. Sess. Law Serv. 8, 35 (renumbered 2001 and
amended 2011) (current version at TEX. FAM. CODE ANN. § 8.053). Jeffrey points
out that the 2011 amendment to section 8.053 deleted this exclusion. See TEX.
FAM. CODE ANN. § 8.053. He asserts that the deletion of the exclusionary language
shows that the rebuttable presumption applies to Brenda. However, Jeffrey fails to
recognize that section 8.053, as amended, now only provides when the rebuttable
presumption does apply, rather than also stating, as it previously did, when it does
not apply. Under the statute’s plain language, the rebuttable presumption applies
only to spouses found to be eligible for maintenance pursuant to section
8.051(2)(B); it does not apply to a spouse, such as Brenda, who is found to be
eligible for maintenance under 8.051(2)(A) because she has an incapacitating
physical disability.
Even if the presumption did apply, Brenda offered ample evidence showing
that she could no longer work. As discussed above, 65-year-old Brenda has been
receiving disability benefits since 2005. She has no education beyond a GED. She
had to quit her job at a doctor’s office in 2000 because she could no longer perform
her job duties due to spasms in her back, neck, legs, arms, and hands. She also has
carpal tunnel syndrome, which affects her ability to work. After working at the
doctor’s office, Brenda had a part-time job in a daycare. Brenda had to quit that
14
job after she nearly dropped babies she was holding on a couple of occasions
because of her diminished arm strength.
We note Jeffrey points out that Brenda admitted that she mows her own
grass, cleans her own house, and has gone fishing and bowling. Addressing this
evidence, Brenda testified that she completes tasks at her own pace and that her
grandchildren help her with her yard work. She acknowledged that she has
engaged in recreational activities, but she indicated that she suffers later for it. In
sum, the evidence showed that, while Brenda could engage in certain activities
occasionally, she could not engage in them for a sustained period of time for
employment purposes. Applying the appropriate standards of review, the evidence
is legally and factually sufficient to rebut the section 8.053 presumption against
maintenance. Thus, it was within the trial court’s discretion to determine that
Brenda had rebutted the presumption.
We are also mindful that, in its findings of fact, the trial court indicated that
it took the following into consideration when determining maintenance: (1) “each
spouse’s ability to provide for that spouse’s minimum reasonable needs
independently, considering that spouse’s financial resources on dissolution of the
marriage”; (2) “the education and employment skills of the spouses, the time
necessary to acquire sufficient education or training to enable the spouse seeking
maintenance to earn sufficient income, and the availability and feasibility of that
15
education or training”; and (3) “the age, employment history, earning ability, and
physical and emotional condition of the spouse seeking maintenance.” These
findings indicate that the trial court did take Brenda’s employability and earning
capacity into consideration when it determined maintenance.
We overrule Jeffrey’s first three issues.
C. Marital Standard of Living
In his fourth issue, Jeffrey challenges the basis for the monthly $1,625
maintenance. Jeffrey claims that the trial court abused its discretion by improperly
basing the award on Brenda’s “former marital standard of living.”
As mentioned, Family Code section 8.051 provides that a trial court may
order spousal maintenance if the spouse seeking maintenance will lack sufficient
property upon dissolution of the marriage to provide for her minimum reasonable
needs and if certain other conditions are satisfied. TEX. FAM. CODE ANN. § 8.051.
Family Code section 8.052 lists factors for the trial court to consider when
determining the “nature, amount, duration, and manner” of spousal maintenance.
TEX. FAM. CODE ANN. § 8.052 (Vernon Supp. 2014). These factors include the
following: (1) the ability of the spouse seeking maintenance to provide for his or
her own minimum reasonable needs independently; (2) the spouses’ education and
employment skills; (3) the duration of the marriage; (4) the age, employment
history, earning ability, and physical and emotional condition of the spouse seeking
16
maintenance; (5) the effect on each spouse’s ability to provide for that spouse’s
minimum reasonable needs while providing periodic child support payments or
maintenance, if applicable; (6) “acts by either spouse resulting in excessive or
abnormal expenditures or destruction, concealment, or fraudulent disposition of
community property”; (7) the contribution by one spouse to the education, training,
or increased earning power of the other spouse; (8) property brought to the
marriage by either spouse; and (9) the contribution of a spouse as homemaker. Id.
In its findings of fact, the trial court stated that it considered the foregoing
nine factors, including Brenda’s ability to meet her own “minimum reasonable
needs,” when it determined the nature, amount, duration, and manner of the
spousal maintenance award. Jeffrey asserts that the maintenance award was not
based on Brenda’s minimum reasonable needs; rather, he claims it was improperly
based on Brenda’s “former marital standard of living.” In support of this assertion,
Jeffrey avers that the trial court “look[ed] to what [Brenda] was buying during her
marriage to [Jeffrey].”
To establish her living expenses, Brenda offered into evidence, without
objection from Jeffrey, a list of the following monthly expenses:
17
1. House Note $879.00
2. Car Note $225.00
3. Car Insurance $ 85.00
4. Utilities $300.00
5. Gasoline $350.00
6. Food $300.00
7. Various Sundries $200.00
8. Health Insurance $100.00
9. Clothes $100.00
10. Cell Phone $130.00
11. House Insurance $70.00
12. Property Taxes $70.00
Total Living Expenses $2,809.00
Brenda also testified regarding a number of these expenses.4
To support his argument that the trial court’s award was based on Brenda’s
marital standard of living, rather than her minimum reasonable needs, Jeffrey
points out that Brenda’s itemized expenses included payments for a pickup truck
and the couple’s home, items purchased during their marriage. However, these
items were listed to show Brenda’s post-divorce living expenses, not to show her
marital standard of living. The two cited items related to housing and
transportation, items that the trial court could have reasonably inferred were
reasonable living necessities. Brenda made no attempt to offer evidence to show
her marital lifestyle. To the contrary, at trial, Brenda’s attorney asked her, “[Y]ou
4
Brenda clarified that the monthly house-note payment was actually $979.00 rather
than $879.00. Thus, Brenda’s total monthly expenses are $2,909.00 rather than
$2,809.00. However, the trial court found Brenda’s monthly living expenses to be
$2,809, so that is the amount to which we will also refer.
18
understand that I cannot—based on limitations under the law—potentially keep
you in the lifestyle to which you were accustomed when you have a husband
earning 90 to 100,000 a year? I mean, I can’t get you there.” Brenda
acknowledged she understood that the maintenance award would not maintain her
marital lifestyle. And, as mentioned, the trial court’s findings of fact reflect that
the trial court properly considered the statutory factors listed in Family Code
section 8.052 in determining the amount of the maintenance. See TEX. FAM. CODE
ANN. § 8.052. The stated factors did not include consideration of Brenda’s former
marital standard of living. We conclude that Jeffrey has not shown that the trial
court abused its discretion by basing the maintenance award on an improper
standard.
We overrule Jeffrey’s fourth issue.
D. Minimum Reasonable Needs
In his fifth issue, Jeffrey asserts that the trial court abused its discretion by
awarding Brenda “spousal maintenance amounts which exceed her ‘minimum
reasonable needs.’” See TEX. FAM. CODE ANN. § 8.051.
The term “minimum reasonable needs” is not defined in the Family Code.
Slicker v. Slicker, 464 S.W.3d 850, 860 (Tex. App.—Dallas 2015, no pet.) (citing
Cooper v. Cooper, 176 S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no
pet.)). A trial court determines whether a party’s minimum reasonable needs are
19
met on a fact-specific, individualized, case-by-case basis. Slicker, 464 S.W.3d at
860 (citing Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus Christi 2002,
no pet.)). In its fourth finding of fact, the trial court determined that “[Brenda] will
lack sufficient property, including her separate property, on dissolution of the
marriage to provide for her minimum reasonable needs.”
The Rule 11 agreement provided that Brenda would be awarded the couple’s
marital homestead in Mauriceville, Texas, and a pickup truck. Money was still
owed on each of these items. In her expense statement, Brenda listed the $879
house note for the Mauriceville home and the $225 car note for the pickup truck as
monthly expenses. On appeal, Jeffrey asserts that the trial court should not have
considered the $879 house note or the $225 car note in determining Brenda’s
monthly living expenses. Jeffrey points out that, in addition to being awarded
these items, Brenda was also awarded, as her separate property, a classic 1965
Mustang and a lake home. Jeffrey avers that, because she was awarded her
separate property, the Mustang and the lake home, Brenda “has a place to stay and
a way around (i.e., shelter and transportation).” For this reason, Jeffrey asserts that
the $879 house note and the $225 car note should not be included as a basis for
spousal maintenance. Jeffrey claims that inclusion of these expenses in the amount
of maintenance was an abuse of the trial court’s discretion.
20
At trial, Brenda testified that the market value of the lake house was $28,000
to $30,000. As Brenda points out, no evidence was offered to show the condition
or habitability of the lake house. Jeffrey’s attorney asked Brenda if she knew that
the tax rolls indicated the lake house was valued at $45,000. Brenda responded
that she had protested the $45,000 valuation because of the condition of the house.
She stated that the value on the tax rolls was then lowered. From this testimony,
the trial court may have inferred that the home was in need of repair.
With regard to the 1965 Mustang, Brenda testified that it had been appraised
at $22,995. However, no evidence was presented whether the the 50-year-old car
was operable or in good working condition. The trial court may have reasonably
inferred that a 50-year-old car Mustang would not be practical transportation for
everyday use for a 65-year-old disabled woman. Given the fact-specific nature of
the inquiry, it was within the trial court’s discretion to consider the house and car
notes in determining Brenda’s reasonable minimum needs.
We overrule Jeffrey’s fifth issue.
E. Factual Sufficiency of Evidence to Support Maintenance of $1,625
Jeffrey frames his sixth issues as follows: “The evidence was factually
insufficient to set spousal maintenance at $1,625 per month, where [Brenda’s]
monthly expense sheet contained vague headings which claimed expenses in round
numbers, but had no receipts to verify the amount claimed.” Jeffrey asserts that
21
Brenda’s monthly expense sheet, to which he offered no objection at trial,
“contains ubiquitous and overbroad categories for which no receipts were put in
evidence, such as ‘Various Sundries,’ which are valued at $200/month.” Jeffrey
also asserts that the $130 cellular phone bill that Brenda listed on her expense sheet
should not have been considered by the trial court in its determination of spousal
maintenance.
Jeffrey remarks that Brenda did not offer receipts to support her claimed
monthly expenses. There is, however, no requirement that a spouse produce
receipts as evidence of her minimum reasonable needs. In fact, other courts have
upheld an award of maintenance even when the spouse receiving maintenance had
not submitted a list of expenses. See, e.g., Diaz v. Diaz, 350 S.W.3d 251, 254–55
(Tex. App.—San Antonio June 22, 2011, pet. denied) (noting that “[w]hile a list of
expenses is helpful, such a list is not the only evidence upon which a trial court can
determine a person’s ‘minimum reasonable needs’”) (citing 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.) (rejecting husband’s
argument that wife was required to offer itemized list of monthly expenses as
evidence to support her minimum reasonable needs)). Here, Brenda did provide a
monthly expense sheet and testified regarding certain categories listed on the sheet.
22
With respect to the $200 expense listed under the heading “various
sundries,” Jeffrey complains, “[I]t is never specified anywhere what this is other
than to imply it means woman’s toiletries, which largely are not necessaries, nor
should they be so expensive for a post-menopausal woman.” At trial, Brenda’s
attorney questioned her about this category. He stated: “And when I said various
sundries I put on here, that’s lady stuff. I don’t know all the stuff you guys buy;
but you might get some makeup or you might have some other items that you buy
that we estimated at $200 a month.” Brenda responded affirmatively.
Besides challenging the $200 expense for “women’s toiletries,” Jeffrey also
characterizes Brenda’s monthly cell phone bill as being “exorbitant.” But, Jeffrey
points to no evidence to show that the $130 bill was not an acceptable charge.
Jeffrey further avers that an unemployed 65-year-old woman has no need of a cell
phone. However, the trial court may have reasoned that it was because Brenda is a
65-year-old woman with disabilities that she needs a mobile phone.
Jeffrey also points to language in Tedder v. Gardner Aldrich, LLP in which
the Supreme Court of Texas stated, “We have suggested that a spouse’s necessaries
are things like food, clothing, and habitation—that is, sustenance—and we have
squarely rejected the view that a spouse’s legal fees in a divorce proceeding fall
into this category.” 421 S.W.3d 651, 656 (Tex. 2013) (footnotes omitted). This
statement in Tedder was made in the context of the court’s determination of
23
whether a husband was liable for his wife’s legal fees incurred in their divorce
proceeding. See id. Tedder is of limited guidance here because it did not involve a
determination of what is appropriately considered in determining a spouse’s
minimum reasonable needs in the context of awarding monthly spousal
maintenance. Thus, Tedder did not compel the trial court to discount the expenses
for the cell phone and “women’s toiletries,” as Jeffrey claims.
As mentioned, the term “minimum reasonable needs” is not defined in the
Family Code. Slicker, 464 S.W.3d at 860. Nor has any case authority attempted to
define it. Rather, a trial court determines whether a party’s minimum reasonable
needs are met on a fact-specific, individualized, case-by-case basis. Id. As one
court correctly observed, “Deciding what the minimum reasonable need is for a
particular individual or family is a fact-specific determination that ordinarily
should be made by the trial court.” In re Marriage of Hale, 975 S.W.2d 694, 698
(Tex. App.—Texarkana 1998, no pet.). Given the realities of modern living and
the evidence in the record, the trial court could have reasonably determined that the
monthly fee for the cell phone and “various sundries” fell within Brenda’s
reasonable minimum needs. See id. (rejecting husband’s argument that credit card
bill was not a “need” within the context of determining minimum reasonable needs
for spousal maintenance).
24
In any event, even if we were to subtract the $330 for these two items from
Brenda’s monthly living expenses of $2,809, her monthly expenses would be
$2,479. This still exceeds Brenda’s net income of $706 a month and supports a
determination by the trial court that Brenda lacked sufficient property to meet her
minimum reasonable needs. See TEX. FAM. CODE ANN. § 8.051.
Jeffrey also intimates that the specific amount of the maintenance—$1,625
per month—was not supportable because of the claimed deficiencies with these
two items. However, the trial court did not indicate that the $1,625 per month
maintenance was intended to be a one-to-one correspondence with Brenda’s
monthly living expenses. Nor does the Family Code require such a one-to-one
correspondence in setting the amount of maintenance. Rather, Family Code
section 8.502 lists factors for the trial court to consider when determining “the
nature, amount, duration, and manner” of the maintenance award. See TEX. FAM.
CODE ANN. § 8.052. Here, the trial court stated that it relied on a number of these
factors in determining the award, including Brenda’s ability to provide for her own
minimum reasonable needs independently.
With respect to the specific amount of maintenance, Family Code section
8.055 provides that a court may not order a spouse to pay monthly maintenance in
an amount more than the lesser of $5,000 or 20 percent of the spouse’s average
monthly gross income. TEX. FAM. CODE ANN. § 8.055(a) (Vernon Supp. 2014).
25
Within the parameters of section 8.055, the trial court found: “The average
monthly gross income of [Jeffrey] is $8,122.75. Twenty percent (20%) of that
amount is $1,624.55.”
After considering Jeffrey’s assertions in this issue, we conclude that the trial
court’s award of $1,625 is not so against the great weight and preponderance of the
evidence that it is clearly wrong and unjust. Within the context of this issue,
Jeffrey has not shown that the trial court abused its discretion when it awarded
Brenda $1,625 in monthly spousal maintenance.
We overrule Jeffrey’s sixth issue.
F. Debts for the Mauriceville Home and the Truck
In his seventh and eighth issues, Jeffrey asserts that the trial court abused its
discretion because the spousal maintenance award violates the parties’ Rule 11
agreement wherein the parties agreed to the division of property and debts. The
Rule 11 agreement was approved by the trial court and its terms incorporated into
the final divorce decree.
Pursuant to the Rule 11 agreement, Brenda was awarded the couple’s
Mauriceville home and a pickup truck. Both the home and the truck had
outstanding debt. The monthly payment on the house note is $979 (though
Brenda’s expense sheet states it as $879) and the monthly payment on the car note
26
is $225. It is not in dispute that, under the Rule 11 agreement, Brenda is
responsible for paying the house note and the car note.
At trial, Brenda showed that her monthly living expenses were $2,809.
Without objection from Jeffrey, Brenda included the $879 house note and the $225
car note in this sum. In his brief, Jeffrey claims that the trial court abused its
discretion because it “found that [Jeffrey] would pay both notes on the homestead
and the truck over the next 7 years as maintenance.” Jeffrey asserts “[c]onverting a
debt into spousal maintenance is a change in the substantive division of the
property. . . .” Jeffrey intimates that the trial court converted the debts for the
house and car notes into spousal maintenance. Jeffrey’s assertion is not, however,
supported by the record.
As discussed above, the trial court’s findings of fact indicate that it
determined the nature, amount, duration, and manner of maintenance by applying
factors listed in Family Code section 8.052. And, the specific award of $1,625 is
20 percent of Jeffrey’s average monthly income, as permitted by Family Code
section 8.055. See TEX. FAM. CODE ANN. § 8.055(a). Nothing in the record
indicates that the $1,625 maintenance was intended to correspond to the $225 car
note or to the $879 house note any more than it was intended to correspond to
Brenda’s remaining $1,709 in monthly expenses.
27
Jeffrey cites Everett v. Everett, 421 S.W.3d 918 (Tex. App.—El Paso 2014,
no pet.) to support his assertion that the trial court improperly converted the debt
for the house and car notes into spousal maintenance. Everett, however, is
distinguishable from this case.
There, the trial court rendered a clarification order of the divorce decree. Id.
at 921. In the clarification order, the trial court increased the amount of the
husband’s spousal maintenance payments in direct correlation to a specifically
identified debt in a specifically identified amount. Id.
On review of the clarification order, the court of appeals noted, “Under
section 9.007 of the Texas Family Code, a trial court is prohibited from amending,
modifying, altering, or changing the division of property as finalized in the divorce
decree.” Id. The court indicated that a division of debt is part of the division of
property. See id. The Everett court held that the trial court had abused its
discretion by rendering a clarification order that increased the amount of
maintenance to cover a corresponding debt. See id. The court explained,
“[C]onverting a debt into spousal maintenance is not merely a clarification, it is a
change in the substantive division of property and cannot be enforced under the
statute.” Id. (citing TEX. FAM. CODE ANN. § 9.007(b)). Unlike in Everett, the trial
court here did not indicate that a certain portion of the maintenance corresponded
to any specific debt, including the debts owed on the car and house notes. Rather,
28
the record shows that the trial court determined maintenance by considering the
governing statutory provisions.
We hold that Jeffrey has not shown that the trial court improperly converted
the debt owed by Brenda on the house and car notes into spousal maintenance.
Thus, we hold that Jeffrey has not shown that the trial court abused its discretion in
this regard.
We overrule Jeffrey’s seventh and eighth issues.
E. Lack of Sufficient Property
As we construe his ninth issue, Jeffrey asserts that the trial court abused its
discretion by awarding Brenda maintenance because she failed to show that she
would “lack sufficient property, including [her] separate property, on dissolution of
the marriage to provide for [her] minimum reasonable needs,” as required by
Family Code section 8.051. See TEX. FAM. CODE ANN. § 8.051.
“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.” Everitt v. Everitt, No. 01–11–00031–CV, 2012
WL 3776343, at *8 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem.
op.). Jeffrey claims that Brenda was not eligible for maintenance because she has
sufficient property, specifically the lake home, valued at approximately $30,000,
29
and the classic 1965 Mustang, valued at $23,000, to meet her reasonable minimum
needs. These two items were awarded to Brenda in the divorce as her separate
property. The evidence indicated that Brenda owned the lake home and the
Mustang before she married Jeffrey. In its findings of fact, the trial court stated
that it had considered property brought to the marriage by either spouse in its
determination of the nature, amount, duration, and manner of spousal maintenance.
See FAM. CODE ANN. § 8.052 (listing property brought to marriage as a factor for
determining maintenance).
“In considering assets awarded in the divorce, the law does 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.” 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.). “[C]ourts, in considering if a
spouse is eligible for spousal maintenance, have upheld the award in situations
where the spouse receiving the maintenance obtained substantial property in the
divorce proceeding when those capital assets provided insufficient support.” In re
McFarland, 176 S.W.3d 650, 658 (Tex. App.—Texarkana 2005, no pet.)
(discussing O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002,
no pet.); Lopez v. Lopez, 55 S.W.3d 194 (Tex. App.—Corpus Christi 2001, no
pet.); Trueheart, 2003 WL 22176626, at *3; Alaghehband v. Abolbaghaei, No. 03–
30
02–00445–CV, 2003 WL 1986777, at *5, (Tex. App.—Austin May 1, 2003, no
pet.) (mem. op.)).
Here, the trial court may have reasonably determined that the property was
not sufficiently liquid in nature to meet Brenda’s present minimum reasonable
needs because the lake home and classic car may take time to sell. As a result,
Brenda may not realize any value from these items for some time and be unable to
meet her current financial needs. See In re Boyd, No. 07–14–00211–CV, 2015 WL
3941614, at *5 (Tex. App.—Amarillo June 24, 2015, no pet.) (mem. op.)
(indicating that, because home, “various collections,” long-term insurance policy,
and retirement account awarded to wife were types of property that may require
time to sell, such property was not necessarily “liquid” in nature and did not
establish that wife had sufficient property to meet her minimum needs);
McFarland, 176 S.W.3d at 659 (“[T]he home is not a readily liquid asset and is
incapable of producing current income.”).
The trial court may have also taken into consideration the deficit Brenda has
in paying her monthly expenses, even while receiving maintenance. The trial court
found, “[Brenda’s] monthly gross income, including the court ordered spousal
maintenance, is $2,331.00. [Brenda’s] average monthly living expenses are
$2,809.00.” Thus, the trial court may have determined that any money realized
from the sale of the lake house and Mustang could help cover this deficit. In
31
addition, even if she could successfully liquidate the property for the combined
value of $53,000, the money realized from the sale, combined with her net social
security disability benefits, would be exhausted in a little over two years.
We hold that Jeffrey has not shown that the trial court abused its discretion
when it awarded Brenda maintenance, even though she was awarded the lake home
and the Mustang as her separate property. We overrule Jeffrey’s ninth issue.
F. Considering Parties’ Income Sources
Jeffrey’s tenth, eleventh, and fifteenth issues are intertwined. In these
issues, Jeffrey claims that the trial court abused its discretion by considering the
bonuses he had received from his employer while not considering potential income
sources for Brenda. Jeffrey also asserts that the trial court should have considered
his living expenses as it had considered Brenda’s expenses when calculating the
maintenance. Jeffrey further claims that the seeming disparity in how the trial
court viewed the income and the expenses of each party violated the Equal Rights
Amendment to the Texas Constitution. See TEX. CONST. art. I, § 3a.
We begin by addressing Jeffrey’s argument that the trial court abused its
discretion because it considered his past bonuses in determining maintenance.
At trial, Brenda offered Jeffrey’s W-2s for the years 2011, 2012, and 2013.
These showed that Jeffrey earned $96,323 in 2011, $92,838 in 2012, and $103,258
in 2013. These amounts included bonuses earned by Jeffrey in each year.
32
Using all three years, Brenda offered a worksheet demonstrating that the
average monthly income for these three years was $8,122.75. Brenda requested 20
percent of this amount, $1,625 per month, as maintenance. In its findings of fact,
the trial court determined, “The average monthly gross income of [Jeffrey] is
$8,122.75. Twenty percent (20%) of that amount is $1,624.55.”
On appeal, Jeffrey complains that the trial court should not have included his
bonuses when calculating his gross income. In support of this assertion, Jeffrey
points to his testimony regarding the bonuses. Jeffrey testified that his base salary,
without a bonus, is $65,000. He stated the he receives his bonus in a lump sum at
the end of the year. Jeffrey testified that his receipt of a bonus and its amount are
dependent on how profitable his employer is in any given year. He indicated that
there is no guarantee he will continue to receive a bonus or that it will be in the
amounts that he has received in the past. Based on this testimony, Jeffrey claims
that the trial court abused its discretion “by imputing a non-current and
undependable salary bonus . . . to [him] before calculating the amount of spousal
maintenance.” We disagree.
Family Code section 8.055 provides that a trial court may not order
maintenance that requires payment monthly of more than the lesser of $5,000 or 20
percent of the spouse’s average monthly gross income. TEX. FAM. CODE ANN.
§ 8.055(a). Section 8.005 further provides that, for purposes of Chapter 8,
33
governing maintenance, “gross income” includes “100 percent of all wage and
salary income and other compensation for personal services (including
commissions, overtime pay, tips, and bonuses).” See id. § 8.055(a–1)(1)(A)
(emphasis added). Thus, Family Code section 8.055 expressly provides that
bonuses are included when calculating gross income for purposes of determining
spousal maintenance. See id.
In addition, although Jeffrey testified that it is possible that his income could
decrease, the evidence showed that Jeffrey had received a bonus for the three
consecutive years preceding trial. Hence, there was some evidence to support an
inference by the trial court that Jeffrey would likely continue to receive a bonus in
the amounts that he had received in the past. We conclude that it was within the
trial court’s discretion to consider Jeffrey’s bonus when calculating his gross
monthly income. See id.
Jeffrey also complains that the trial court abused its discretion because it did
not consider possible future sources of income for Brenda to “offset” the amount of
maintenance he is required to pay. Jeffrey points out that, at the time of trial,
Brenda was one month away from her 65th birthday. He asserts that the trial court
should have considered the social security payments Brenda was eligible to receive
after she turned 65. However, no evidence was presented at trial regarding any
aspect of social security benefits to which Brenda would be entitled based on her
34
age. Instead, the record showed only that Brenda was netting $706 in social
security disability benefits.
Jeffrey further asserts that Brenda may be entitled to income from her first
husband’s social security benefits. The testimony indicated that Brenda had
divorced her first husband, and he is now deceased. Brenda testified that she had
inquired about whether she was entitled to her first husband’s social security
benefits. Brenda indicated that she had been told that she may be entitled to them;
however, because her first husband had remarried, she was not certain whether she
would be entitled to his benefits.
Jeffrey further asserts that the trial court should have taken into
consideration the potential for Brenda to rent out the lake house. However, no
evidence was presented regarding the amount of rent that could be charged or
whether the lake house was in a rentable condition.
In short, the trial court could have inferred that, at the time of trial, Brenda’s
only source of income was the $706 in monthly social security disability benefit
that she received. With regard to Jeffrey’s assertion that Brenda had other income
sources, the evidence was speculative at best. Thus, it was proper for the trial
court not to impute any other source of income to Brenda.
Jeffrey also claims that the trial court violated his rights under the Equal
Rights Amendment to the Texas Constitution, which provides, “Equality under the
35
law shall not be denied or abridged because of sex, race, color, creed, or national
origin.” TEX. CONST. art. I, § 3a. Jeffrey asserts that, by considering his bonuses
but not considering Brenda’s other potential sources of income, the trial court
violated his rights under this constitutional provision.
Jeffrey acknowledges that he did not assert his constitutional complaint in
the trial court. However, he claims that he did not need to assert his constitutional
complaint in the trial court because it was “self-operative.” We disagree.
To preserve an argument for appellate review, including constitutional
arguments, a party must present it to trial court by timely request, motion, or
objection, state specific grounds therefore, and obtain a ruling. See TEX. R. APP. P.
33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). For this reason, Jeffrey
waived his constitutional argument by not presenting it in the trial court.
Jeffrey further complains that the trial court abused its discretion because it
should have considered his monthly expenses, such as his monthly rental payment,
when calculating the amount of maintenance he was required to pay Brenda.
However, as pointed out, Family Code section 8.052 provides the factors for the
trial court to consider when determining the nature, amount, duration, and manner
of the maintenance payments. The trial court indicated that it had applied many of
these factors in determining the maintenance award. Among these factors, the trial
court indicated that it had considered “each spouse’s ability to provide for that
36
spouse’s minimum reasonable needs independently, considering that spouse’s
financial resources on dissolution of the marriage.”
Lastly, Jeffrey claims that the trial court should have ordered his monthly
payments to decrease when Brenda pays off the house and car notes. However,
Jeffrey does not show where in the record he requested the trial court to
incorporate such a decrease. We further note that, a trial court may modify the
amount of spousal maintenance a person is required to pay if the circumstances of
a party have materially and substantially changed since the date of the prior order’s
rendition. See TEX. FAM. CODE ANN. § 8.057(c) (Vernon Supp. 2014); Rother v.
Rother, No. 04–13–00899–CV, 2014 WL 4922898, at *2 (Tex. App.—San
Antonio Oct. 1, 2014, no pet.) (mem. op.). Thus, to the extent that any material
and substantial change in financial circumstances occurs, Jeffrey may request the
trial court to modify the maintenance order.
We overrule Jeffrey’s tenth, eleventh, and fifteenth issues.
Appellate Attorney’s Fees
In his fourteenth issue, Jeffrey challenges the appellate attorney’s fees
awarded to Brenda in the temporary order pending appeal.5 Jeffrey asserts that
Brenda failed to offer sufficient evidence to support the award.6 We agree.
5
We have previously recognized that challenges to a post-decree temporary order
may be raised in the appeal of the decree. See Massey v. Massey, 813 S.W.2d 605,
606 (Tex. App.—Houston [1st Dist.] 1991, no writ).
37
We first address a jurisdictional argument raised by Jeffrey. Jeffrey asserts
that the trial court lacked plenary power to award the post-decree attorney’s fees
because the order awarding the fees was signed more than 30 days after the decree
was rendered.
The Family Code provides that, within 30 days of the date an appeal is
perfected in a suit for dissolution of marriage, the trial court may render a
temporary order “necessary for the preservation of the property and for the
protection of the parties during the appeal,” including an order to require the
payment of reasonable attorney’s fees and expenses. TEX. FAM. CODE ANN.
§ 6.709(a)(2) (Vernon 2006).
Here, the decree was signed on October 30, 2014. Jeffrey timely filed a
notice of appeal on November 24, 2014. See TEX. R. APP. P. 26.1. The trial court
signed its temporary order, awarding the appellate attorney’s fees less than 30 days
later on December 15, 2014. Because it rendered the order within 30 days of when
the appeal was perfected, the trial court had jurisdiction to render the temporary
6
Brenda asserts that Jeffrey has waived this issue because it is not adequately
briefed. In his brief, Jeffrey avers that Brenda did not “make an adequate prove-
up” of her attorney’s fees. He points out that Brenda did not offer evidence of her
attorney’s hourly rate or show how many hours the attorney had worked on the
appeal. We reject Brenda’s claim that Jeffrey waived the issue due to inadequate
briefing. See TEX. R. APP. P. 38.1(i); cf. City of Arlington v. State Farm Lloyds,
145 S.W.3d 165, 167–68 (Tex. 2004) (holding appellate court must search entire
record for legal sufficiency challenge even though appellant did not include
specific record citations but instead cited to “the entire record”).
38
order awarding Brenda her appellate attorney’s fees. See TEX. FAM. CODE ANN.
§ 6.709(a)(2).
With respect to the merits of the award, we review the trial court’s decision
to award attorney’s fees for abuse of discretion. Tomsu, 381 S.W.3d at 719. To
recover attorney’s fees, the party must prove the reasonableness of the fees. Id.
(citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). The non-exhaustive
Arthur Andersen factors provide the guiding principle for determining whether
attorney’s fees are reasonable. Id. (citing Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997)).
The record shows that, after the trial court rendered the decree, Brenda filed
a motion for temporary orders pending appeal. In the motion, Brenda requested
the trial court to render an order “[r]equiring payment of reasonable attorney’s fees
and expenses to [Brenda] in the amount of at least $10,000.00 . . . .” Brenda did
not offer an affidavit or any other evidence to support her motion.
The trial court conducted a hearing regarding the motion. Although he had
already retained an appellate attorney, Jeffrey’s trial counsel appeared at the
hearing on his behalf. Brenda’s appellate counsel also appeared.
With respect to the attorney’s fees, the trial court began by informing
Brenda’s counsel: “I’m not going to grant 10,000 [dollars.].” At that point,
Jeffrey’s trial counsel spoke up, stating that it was his understanding that Jeffrey
39
had paid his appellate counsel a $2,600 retainer. Trial counsel characterized the
retained appellate attorney as “a longtime” family appellate attorney.
Brenda’s counsel responded by stating that he had already prepared findings
of fact and conclusions of law and had yet to read the record and prepare her
appellate briefing. He pointed out that he may also have to participate in oral
argument. Brenda’s counsel continued,
The Court can decide what’s reasonable for that; but to me, if she
came in to hire me for an appeal, I wouldn’t do that for . . . $2,600. I
would not. So, whatever his lawyer charged has nothing to do with
me or what the Court considers reasonable in this case.
The trial court and Brenda’s trial counsel then commented that neither of
them knew Brenda’s appellate counsel. The trial court stated, “So, that’s not to say
anything good. That’s not to say anything bad. I just don’t know him. And—
well, what I’m going to do is order, at this time, attorney fees of $5,000 to
[Brenda’s counsel].” No further discussion was held regarding the specific amount
of the attorney’s fees to be awarded, and the record contains no documentary or
other evidence to support the fees. Jeffrey points out in his brief that no evidence
was offered to show the hourly rate of Brenda’s counsel or how many hours he
anticipated spending on the appeal.
In the temporary order, the trial court stated: “The Court finds that
reasonable interim attorney’s fees and expenses to be paid by [Jeffrey] to
[Brenda’s] attorney are necessary for [Brenda’s attorney] to properly prepare for
40
appeal.” Despite this finding, we agree with Jeffrey that Brenda presented no
evidence to support the reasonableness of the $5,000 attorney’s fee award, as
required. See id.
Nonetheless, as Brenda points out, the trial court was familiar with the
issues, the complexity of case, and the size of the record. And, as stated, Brenda’s
counsel verbally detailed the tasks he had to undertake in representing her on
appeal. Although there is no evidence to show the reasonableness of a $5,000
attorney’s fee, there is support in the record to warrant an award of attorney’s fees
to Brenda. See id.
We hold that, without supporting evidence showing the reasonableness of
the fees, the trial court abused its discretion by awarding appellate attorney’s fees
of $5,000. See id. We sustain Jeffrey’s fourteenth issue to the extent it challenges
the sufficiency of the evidence to support the attorney’s fees award. We need not
reach Jeffrey’s twelfth and thirteenth issues, which also challenge the award of
attorney’s fees.
Conclusion
We affirm the trial court’s divorce decree. We reverse the portion of the
trial court’s temporary order awarding $5,000 in attorney’s fees, and we remand
41
the case to the trial court for a determination of Brenda’s appellate attorney’s fees.7
We further dismiss as moot Jeffrey’s motion to abate, vacate, or reform the trial
court’s temporary order, which is pending in this Court and was ordered to be
considered with the merits of the appeal.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Brown.
7
In the temporary order, the trial court also ordered Jeffrey to pay spousal
maintenance during the pendency of the appeal. Jeffrey has not challenged that
portion of the order; thus, it is affirmed. See Reeder v. Wood Cty. Energy, LLC,
395 S.W.3d 789, 798 (Tex. 2012) (op. reh’g) (affirming portions of judgment not
challenged by appellant, even though reversing other parts of judgment).
42
Jeffery Dwayne Benoit v. Brenda Faye Benoit
Combined Opinion