                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-18-00183-CV

                IN THE MATTER OF THE MARRIAGE OF
                  YOSSEF ELABD AND SONIA ELABD
                                AND
           IN THE INTEREST OF J.E., E.E. AND S.E., CHILDREN



                      From the County Court at Law No. 2
                              Brazos County, Texas
                      Trial Court No. 17-000880-CVD-CCL2


                                      OPINION


       In three issues, appellant, Yossef Elabd, complains about the final divorce decree

signed by the trial court. Specifically, Yossef argues that: (1) the evidence is legally

insufficient to support the trial court’s determination that appellee, Sonia Elabd, is

entitled to spousal maintenance; (2) the trial court abused its discretion by awarding

Sonia $1,500 per month in spousal maintenance; and (3) the trial court abused its

discretion by making a disproportionate division of the community estate. Because we

overrule all of Yossef’s issues, we affirm.
                                    I.   SPOUSAL MAINTENANCE

         In his first issue, Yossef complains that the spousal-maintenance award is not

supported by legally-sufficient evidence. Specifically, Yossef contends that because the

trial court made no findings concerning Sonia’s minimum reasonable needs, and because

no such findings can be implied from this record, Sonia was not entitled to spousal

maintenance. We disagree.

A.       Applicable Law & Standard of Review

         Spousal maintenance is an award of “periodic payments from the future income

of one spouse for the support of the other spouse.” TEX. FAM. CODE ANN. § 8.001(1) (West

2006). The purpose of spousal maintenance is “to provide temporary and rehabilitative

support for a spouse whose ability to 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. Hooper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no

pet.).

         Section 8.051 of the Family Code governs a spouse’s eligibility for spousal

maintenance. See TEX. FAM. CODE ANN. § 8.051 (West Supp. 2018). As relevant to the

instant case, section, 8.051(2) provides that a spouse is eligible to receive spousal

maintenance if the spouse seeking maintenance:

         (A) is unable to earn sufficient income to provide for the spouse’s minimum
             reasonable needs because of an incapacitating physical or mental
             disability;


In the Matter of the Marriage of Elabd                                                 Page 2
        (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. § 8.051(2). It is undisputed that subsection (B) is the sole provision of section 8.051(2)

that is at issue in this case. Id. § 8.051(2)(B).

        There is a rebuttable presumption that maintenance under section 8.051(2)(B) is

not warranted unless the spouse seeking maintenance has exercised diligence in

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(a)(2) (West Supp. 2018). The term “minimum reasonable needs”

is not statutorily defined. 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.)). Rather, minimum reasonable needs is a fact-specific inquiry, which the courts

determine on an individualized, case-by-case basis. Id. (citing Amos v. Amos, 79 S.W.3d

747, 749 (Tex. App.—Corpus Christi 2002, no pet.)).

        We review an award of spousal maintenance under an abuse-of-discretion

standard. Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably,

without regard to guiding legal principles, or without supporting evidence. Id. Under
In the Matter of the Marriage of Elabd                                                  Page 3
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. Because of the overlap between the

abuse-of-discretion and sufficiency-of-the-evidence standards of review, we engage in a

two-step analysis to determine whether the trial court (1) had sufficient information on

which to exercise its discretion and (2) erred in its application of that discretion. Day v.

Day, 452 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).             “In

determining the first prong, ‘[w]e apply the same standards when reviewing the legal

and factual sufficiency of the evidence supporting the trial court’s fact findings as we do

when reviewing the evidence supporting a jury’s answer to a special issue.’” Id. (quoting

Dunn, 177 S.W.3d at 396).

        To prevail on a legal-sufficiency challenge on an issue for which the opposing

party had the burden of proof, the complaining party must show that there is no evidence

that would enable reasonable and fair-minded people to reach the verdict under review.

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing a legal-

sufficiency challenge, we consider all of the evidence supporting the judgment,

“credit[ing] favorable evidence if reasonable jurors could, and disregard[ing] contrary

evidence unless reasonable jurors could not.” Id. We consider the evidence in the light

most favorable to the findings and indulge every reasonable inference that would

support them. Id. at 822.


In the Matter of the Marriage of Elabd                                                Page 4
B.      Entitlement to Spousal Maintenance Under Section 8.051(2)(B)

        As noted above, Yossef asserts that the spousal-maintenance award should be

reversed because the trial court did not make sufficient factual findings with regard to

Sonia’s “minimum reasonable needs” in its findings of fact, and because the award

cannot be supported by presumed findings under Texas Rule of Civil Procedure 299. See

TEX. R. CIV. P. 299. Rule 299 governs whether we may presume omitted findings of fact

to support a judgment. Id. Specifically, Rule 299 provides:

        When findings of fact are filed by the trial court they shall form the basis of
        the judgment upon all grounds of recovery and of defense embraced
        therein. The judgment may not be supported on appeal by a presumed
        finding upon any ground of recovery or defense, no element of which has
        been included in the findings of fact; but when one or more elements thereof
        have been found by the trial court, omitted unrequested elements, when
        supported by evidence, will be supplied by presumption in support of the
        judgment. Refusal of the court to make a finding requested shall be
        reviewable on appeal.

Id. In other words, if a party secures an express finding on at least one element of a

ground of recovery or defense, then deemed findings may arise as to the balance of the

elements. See Howe v. Howe, 551 S.W.3d 236, 245 (Tex. App.—El Paso 2018, no pet.)

(citations omitted); see also Smith v. McDonald, No. 12-12-00165-CV, 2013 Tex. App. LEXIS

11769, at **12-13 (Tex. App.—Tyler Sept. 18, 2013, pet. denied) (mem. op. on reh’g).

        In the instant case, the trial court considered numerous factors regarding Sonia’s

eligibility for spousal maintenance and made one specific fact finding—that Sonia earns

$76,000 per year working full time. Moreover, in its conclusions of law, the trial court


In the Matter of the Marriage of Elabd                                                    Page 5
determined that: “Good cause exists to order HUSBAND to pay Spousal Support to

WIFE in the amount of $1,500.00 per month beginning March 2018 and continuing

through May 2021.”

        As shown above, the trial court concluded that spousal maintenance was

warranted and listed the facts and factors that it considered, including the fact that Sonia

earns $76,000 per year working full time. These express findings support an implied

finding that the trial court determined Sonia eligible for spousal maintenance. See TEX.

R. CIV. P. 299; Howe, 551 S.W.3d at 245; see also Smith, 2013 Tex. App. LEXIS 11769, at **12-

13 (noting that “if the findings are not as definite and specific as they should be, a

reviewing court will consider not only the facts expressly found, but those that are

implied from those expressly found”). We, therefore, are not persuaded by Yossef’s

contentions that the trial court did not make sufficient findings to support its spousal-

maintenance award and that the trial court’s award cannot be supported by an implied

finding under Rule 299.

        Furthermore, such an implied finding is supported by the record evidence. In

particular, the evidence includes testimony from Sonia that she needs spousal support to

get back on her feet as she adjusts to supporting a household and improving her own

career. Additionally, both parties submitted budgets detailing their monthly income and

expenditures.      Specifically, Sonia indicated that her monthly expenses are $9,057.

Combining her gross monthly income of $6,333.33 with the $2,565 in ordered child


In the Matter of the Marriage of Elabd                                                 Page 6
support, Sonia’s total gross income per month is $8,898.33, which is less than the $9,057

in expenses alleged in her monthly budget. This constitutes sufficient evidence that her

current earnings and the court-ordered child support do not meet her minimum

reasonable needs, as impliedly found by the trial court.

        Therefore, considering the evidence in the light most favorable to the trial court’s

ruling, we conclude that there was some evidence upon which the trial court based its

decision that Sonia rebutted the statutory presumption against spousal maintenance and,

thus, was entitled to spousal maintenance under section 8.051(2)(B). See TEX. FAM. CODE

ANN. §§ 8.051(2)(B), 8.053; see also City of Keller, 168 S.W.3d at 827; Slicker, 464 S.W.3d at

860; Day, 452 S.W.3d at 433. As such, we cannot say that the trial court abused its

discretion by determining that Sonia was entitled to spousal maintenance in this case. See

Dunn, 177 S.W.3d at 396; see also Day, 452 S.W.3d at 433. We overrule Yossef’s first issue.

C.      Section 8.052 and the Amount of Spousal Maintenance Awarded

        In his second issue, Yossef argues that, even if Sonia was entitled to spousal

maintenance, the trial court abused its discretion by awarding her $1,500 per month.

More specifically, Yossef asserts that the evidence does not support the amount of spousal

maintenance awarded when the factors outlined in section 8.052 of the Family Code are

considered. Once again, we disagree.

        Once the determination is made that a spouse is entitled to spousal maintenance

under section 8.051, courts consider several factors in determining the nature, amount,


In the Matter of the Marriage of Elabd                                                  Page 7
duration, and manner of the periodic payments under section 8.052 of the Family Code.

See TEX. FAM. CODE ANN. § 8.052 (West Supp. 2018). These factors include:

        (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 education or training;

        (3) the duration of the marriage;

        (4) the age, employment history, earning ability, and physical and
            emotional condition of the spouse seeking 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, joint tenancy, or other property held in common;

        (7) the contribution by one spouse to the education, training, or increased
            earning power of the other spouse;

        (8) the property brought to the marriage by either spouse;

        (9) the contribution of a spouse as a homemaker;

        (10) marital misconduct, including adultery and cruel treatment, by
            either spouse during the marriage; and

        (11) any history or pattern of family violence, as defined by Section
            71.004.

Id.
In the Matter of the Marriage of Elabd                                                 Page 8
        After determining that Sonia was eligible for spousal maintenance, the trial court

considered numerous factors, including the property available to both parties; each

spouse’s ability to provide for that spouse’s minimum reasonable needs independently,

considering that spouse’s financial resources on the dissolution of the marriage; the

education and employment skills of the spouses; the duration of the marriage; the age,

employment history, earning ability, and physical and emotional condition of Sonia—the

spouse seeking maintenance; and Sonia’s contribution to the marriage as a homemaker.

These factors mirror those articulated in section 8.052 of the Family Code. See TEX. FAM.

CODE ANN. § 8.052.

        Moreover, the record contains ample evidence supporting these factors. It is

undisputed that the parties were married for nineteen years and that Sonia spent the

marriage dedicated to supporting Yossef in the furtherance of his education and career.

Sonia testified that, since 2003, she worked part-time so that she could spend most of her

time as a “stay-at-home mom.” Sonia works from home as a medical editor; however,

since the divorce was filed, Sonia had to increase her work hours. The trial testimony

established that, if she lost her existing job, it would be very difficult for her to find a

comparable position in the Bryan-College Station area because there is no major medical

center. Indeed, Sonia testified that she sought other employment in the Bryan-College

Station area, but was unsuccessful. Sonia’s ability to find other employment is not only

limited by the nature of her job but also the fifty-mile geographic restriction regarding


In the Matter of the Marriage of Elabd                                                Page 9
the designation of the children’s primary residence. Also, Sonia testified that she has a

rare blood cancer for which there is no remission.

         Additional evidence adduced at trial showed that both Yossef and Sonia have

advanced degrees—Youssef has a Ph.D. in chemical engineering and Sonia has a Master’s

degree in writing. And while Sonia earns $76,000 per year, Youssef makes approximately

$193,000 per year as a Professor of Chemical Engineering at Texas A&M University.

Moreover, the record reflects that the parties decided to use their accrued retirement to

purchase their first house. Youssef has had years to replenish his retirement accounts,

whereas Sonia has not. And though Sonia testified that, at the time of trial, she had

“nothing in retirement,” the record includes a statement from Vanguard pertaining to a

retirement account solely in Sonia’s name with a $15,325.91 balance. Furthermore, the

record demonstrates that Yossef agreed to pay $2,565 per month in child support.

         Considering the evidence in the light most favorable to the trial court’s ruling, we

conclude that there was some evidence touching on many of the section 8.052 factors

upon which the trial court based its decision regarding the nature, amount, duration, and

manner of the periodic spousal-maintenance payments. See TEX. FAM. CODE ANN. § 8.052;

see also City of Keller, 168 S.W.3d at 827; Day, 452 S.W.3d at 433; Slicker, 464 S.W.3d at 860.

Accordingly, we hold that the trial court did not abuse its discretion in this regard. See

Dunn, 177 S.W.3d at 396; see also Day, 452 S.W.3d at 433. We overrule Yossef’s second

issue.


In the Matter of the Marriage of Elabd                                                  Page 10
                                   II.   THE COMMUNITY ESTATE

        In his third issue, Yossef contends that the trial court abused its discretion by

awarding seventy percent of the community estate to Sonia. He specifically challenges

the division of the couples’ retirement accounts and the role fault in the breakup of the

marriage played in the disproportionate division of the community estate.

A.      Standard of Review & Applicable Law

        We review a trial court’s division of property under an abuse-of-discretion

standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court has wide latitude

in the exercise of its discretion in dividing the marital property in a divorce proceeding,

and that division will not be overturned on appeal unless the trial court has abused its

discretion.    Id.   The mere fact that a trial judge may decide a matter within his

discretionary authority differently than an appellate judge is not an abuse of discretion.

Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.—Texarkana 1991, no writ) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). To constitute an abuse of

discretion, the trial court’s division of the property must be manifestly unfair. Mann v.

Mann, 607 S.W.2d 243, 245 (Tex. 1980).

        Section 7.001 of the Family Code provides that the trial court shall, in its divorce

decree, order a division of the marital estate in a manner that it deems just and right. TEX.

FAM. CODE ANN. § 7.001 (West 2006). The trial court is not required to divide the marital

estate equally; however, its division must be equitable. Zieba v. Martin, 928 S.W.2d 782,


In the Matter of the Marriage of Elabd                                                Page 11
786 (Tex. App.—Houston [14th Dist.] 1996, no writ). “The trial court’s discretion is not

unlimited, and there must be some reasonable basis for an unequal division of the

property.” O’Carolan, 71 S.W.3d at 532. In determining whether the division of the

community estate is equitable, the trial court may consider the following non-exclusive

factors: (1) the spouses' capacities and abilities; (2) benefits that the party not at fault

would have derived from the continuation of the marriage; (3) business opportunities; (4)

education; (5) physical conditions of the parties; (6) the relative financial conditions and

obligations of the parties; (7) size of the separate estates; (8) the nature of the property;

(9) disparities in earning capacities and income; (10) the fault of the breakup of the

marriage; and (11) any wasting of the community assets by one of the spouses. Murff,

615 S.W.2d at 698-99; see Garcia v. Garcia, 170 S.W.3d 644, 653 (Tex. App.—El Paso 2005,

no pet.).

        Furthermore, because the trial court is in a better position to determine the candor,

demeanor, and credibility of the witnesses, we will not substitute our judgment for that

of the trial court. See In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.]

2009, no pet.) (noting that the trial court is best able to observe and assess witnesses’

demeanor and credibility and to sense “forces, powers, and influences” that may not be

apparent merely from reading the record on appeal). Instead, we defer to the trial court’s

resolution of underlying facts and to the credibility determinations that may have

affected its decision. Id. Thus, an abuse of discretion generally will not occur when a trial


In the Matter of the Marriage of Elabd                                                Page 12
court bases its decision on conflicting evidence. In re De La Pena, 999 S.W.2d 521, 526 (Tex.

App.—El Paso 1999, no pet.).

B.      Discussion

        In arguing that the trial court’s division of the community estate was an abuse of

discretion, Yossef focuses on fault in the breakup of the marriage and the couples’

retirement accounts. He does not address the remaining Murff factors on appeal.

        While there was testimony by both Yossef and Sonia regarding fault in the

breakup of the marriage, the trial court, in its conclusions of law, specifically granted the

divorce on the ground of insupportability. The record also demonstrates that Sonia,

though college educated with a Master’s degree in writing, has spent the majority of the

marriage as a homemaker, raising the couple’s three children. And though she has

worked part-time in the past as a medical editor, Sonia put her career on hold to support

Yossef as he pursued further educational and career opportunities. This allowed Yossef

to increase his earning capacity to the current level of approximately $193,000 per year as

a college professor at Texas A&M University, whereas Sonia earns $76,000 per year in her

current job.

        Additionally, unlike Yossef, Sonia cannot move for other employment

opportunities because of the geographic restriction involved in this case, and because of

the nature of her job. This significantly limits Sonia’s income opportunities. And while

Sonia received a disproportionate percentage share of the community estate, the majority


In the Matter of the Marriage of Elabd                                                Page 13
of the assets that she received are not liquid. The house and the retirement funds, which

comprise the majority of the community estate that was divided, do not give her

immediate access to funds should she have additional needs for the children or for herself

should she lose her job. Furthermore, the record reflects that Sonia has a rare form of

blood cancer, which she will suffer with the rest of her life. This testimony touches on

several of the Murff factors and does not demonstrate a manifest unfairness constituting

an abuse of the trial court’s discretion in the division of the marital estate. See Murff, 615

S.W.2d at 698-99; Mann, 607 S.W.2d at 245; Garcia, 170 S.W.3d at 653; see also TEX. FAM.

CODE ANN. § 7.001. We therefore overrule Yossef’s third issue.

                                         III.   CONCLUSION

        Having overruled all of Yossef’s issues on appeal, we affirm the judgment of the

trial court.




                                                   JOHN E. NEILL
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
       (Chief Justice Gray dissenting with an opinion)
Affirmed
Opinion delivered and filed September 4, 2019
Publish
[CV06]



In the Matter of the Marriage of Elabd                                                 Page 14
