                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-155-CV


HARLON H. COLEMAN                                                APPELLANT

                                       V.

MELINDA F. COLEMAN                                                  APPELLEE

                                   ------------

          FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

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                                I. Introduction

     In three issues, Appellant Harlon H. Coleman asserts that the trial court

erred by awarding spousal maintenance to Appellee Melinda F. Coleman in their

divorce decree. We affirm in part and reverse and remand in part.




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          See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      Harlon and Melinda married on November 22, 1985. On June 1, 2007,

Harlon filed for divorce. Twenty days later, Melinda entered a general denial.

On November 10, 2008, Melinda filed a counterpetition for divorce requesting,

among other things, spousal maintenance. Harlon responded with a motion to

strike, alleging surprise and lack of discovery. Harlon and Melinda both testified

at the November 13, 2008 bench trial.

A. Harlon’s Employment

      Harlon testified that he works as a maintenance technician at Alcon

Laboratories and grosses $1,572 per week; by trial, he had worked there for

seven years.   In 2007, he reported a little over $109,000 in income.          He

testified that, during the eighteen months they had been separated, he had

given Melinda approximately $29,000 in cash for maintenance and that he had

moved out of the marital residence, allowing her to live there while he

continued to pay the monthly mortgage payment. 2




      2
       Melinda moved out of the marital residence in June or July 2008
because of a conflict with their son, who was living there at the time, and
moved in with her parents.

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B. Melinda’s Employment

      Melinda had been certified to be a nursing home activity director and had

worked in that field, making $10 an hour, around nine years before trial. But

for most of their son’s life, she was a stay-at-home mother. 3

      According to Harlon, Melinda had not sought employment since they

separated; prior to his filing for divorce, Melinda worked at Alcon Laboratories

full-time in a temporary position as a Quality Assurance analyst making $20 an

hour for around three or four months.      Melinda had earned approximately

$10,000 while working at Alcon in the two years before trial.

      Harlon testified that Melinda’s temporary position with Alcon had the

potential to become a permanent full-time position and that the temporary

employee that replaced her at Alcon had become a full-time employee. Melinda

testified that the Alcon position was temporary and that there were never any

discussions that it would become permanent. Melinda testified that she quit

the Alcon job because a co-worker lied about her, making her “working

circumstances very difficult” and causing her stress. She testified that the

reason she gave Alcon for leaving was “[c]onflict issues with co-worker” and

that she just quit.



      3
        Harlon testified that he and Melinda have a twenty-year-old son who
is in college and who Harlon supports by paying his rent, car payment, and
automobile insurance.

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      Since the separation, Melinda had earned approximately $500 by

providing travel and transportation assistance for elderly persons.        Melinda

testified that she had not kept her activity director certification current. She

testified that she had a strong desire to be a missionary, which required sixteen

months of training.

C. Trial Court’s Decision

      After taking the matter under advisement, the trial court issued a letter

ruling on November 13, 2008, denying Harlon’s motion to strike, ordering a

distribution of the marital estate that roughly equalized the assets and liabilities

apportioned to each party, and ordering Harlon to pay Melinda $1,000 per

month in spousal maintenance for twenty months. On May 8, 2009, the trial

court signed a final decree of divorce incorporating these orders and granting

divorce on the ground of insupportability. This appeal followed.

                            III. Spousal Maintenance

      In his third issue, Harlon asserts that there is insufficient evidence to

overcome the presumption under section 8.053(a) of the family code that

spousal maintenance is not warranted.

A. Standard of Review

      A trial court’s award of spousal maintenance is subject to an abuse of

discretion review. Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex. App.—Fort



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Worth 2008, pet. denied) (citing Chafino v. Chafino, 228 S.W.3d 467, 474

(Tex. App.—El Paso 2007, no pet.)). The trial court may exercise its discretion

to award spousal maintenance if the party seeking maintenance meets specific

eligibility requirements. Id. (citing Crane v. Crane, 188 S.W.3d 276, 278 (Tex.

App.—Fort Worth 2006, pet. denied)).           When there is no evidence or

insufficient evidence to support a spousal maintenance claim, a trial court

abuses its discretion by granting spousal maintenance. See Dunn v. Dunn, 177

S.W.3d 393, 397 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      Under the abuse of discretion standard, legal and factual sufficiency of

the evidence are not independent grounds for asserting error, but they are

relevant factors in assessing whether the trial court abused its discretion.

Brooks, 257 S.W.3d at 425. 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.); see also Moroch v.

Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied).




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B. Family Code Section 8.053(a)

      Family code section 8.053(a) creates a presumption that spousal

maintenance is not warranted unless the spouse seeking the maintenance has

exercised diligence in either “(1) seeking suitable employment; or (2) developing

the necessary skills to become self-supporting during a period of separation and

during the time the suit for dissolution of the marriage is pending.” 4 Tex. Fam.

Code Ann. § 8.053(a) (Vernon 2006).

C. The Evidence

      The only testimony pertinent to our inquiry came from Melinda under

direct examination:

      Q. . . . When was the last time you were working . . . [as a nursing
      home activities director]?

      A. Nine years ago.

      Q. All right. How am I going to put this. And so, let’s say, when
      you and your husband separated 18 months ago or two years ago
      even, what would it have taken two years ago for you to get your
      certification back?




      4
        The presumption applies to maintenance under section 8.051(2),
which states that in a suit for dissolution of a marriage, the court may order
maintenance for either spouse only if the marriage lasted ten years or longer,
the spouse seeking maintenance lacks sufficient property to provide for the
spouse’s minimum reasonable needs, and the spouse seeking maintenance
“clearly lacks earning ability in the labor market adequate to provide support for
the spouse’s minimum reasonable needs.”              See Tex. Fam. Code Ann.
§ 8.051(2)(C) (Vernon 2006).

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      A. I would have had to have done some type of continuing
      education. I don’t know what that is. I haven’t checked into it.

      Q. Why didn’t you check into it?

      A. Because I don’t want to do that.

      Q. What is it that you want to do?

      A. I want to go into the mission field and be a missionary.

      Q. Okay. And you have looked into that?

      A. Yes. I have.

      Q. Roughly how long does that training take?

      A. There’s different time periods. The one I’m looking at now is
      16 months.

      Q. Okay. And you’d rather do that than try to catch up on nine
      years of continuing legal—continuing education for being an
      activities director?

      A. Yes. [Emphasis supplied.]

      Melinda also testified that in the two years prior to trial she had made

about $500 providing travel and transportation assistance to the elderly, but

she testified further as follows:

      Q. So, it’s obvious you can’t make a living doing that?

      A. No, it wasn’t for the money. I didn’t do it for the money.

      Q. You did it—why did you do it then?

      A. Because it is what I was lead to do and meant to do.



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       Q. You were just helping them out?

       A. Yeah.

D. Analysis

       Melinda cites In re Marriage of McFarland, 176 S.W.3d 650 (Tex.

App.—Texarkana 2005, no pet.), to support her argument that the foregoing

testimony is sufficient to rebut the statutory presumption. In that case, the

wife

       testified that she had been a homemaker for most of the marriage,
       had allowed her manicurist’s license to expire several years ago,
       and had only recently been able to find employment (from which
       she earned between $7.00 and $9.00 per hour because of her
       limited education, training, experience, and lack of professional
       licensure).

Id. at 653–54.     In its conclusions of law, the trial court found, “Susan

McFarland had exercised due diligence in attempting during the pendency of the

divorce to obtain suitable employment.” Id. at 654. Based on the foregoing,

the appellate court affirmed the award of spousal maintenance. Id. at 659–60.

       In In re Marriage of Eliers, the wife testified that following the couple’s

separation, she secured a low paying job in a grocery store that barely covered

her rent. 205 S.W.3d 637, 646 (Tex. App.—Waco 2006, pet. denied). Her

van was repossessed because of her inability to make monthly payments, and

the lack of transportation and her child-rearing responsibilities prevented her

from being able to pursue job training. She had explored other jobs in the


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vicinity without success. The court concluded that the trial court did not abuse

its discretion by finding that she overcame the statutory presumption against

spousal maintenance “because she provided ample evidence that she ha[d]

exercised diligence in seeking suitable employment under her circumstances.”

Id.

      In comparison to the cases above, Melinda’s only testimony in support of

her spousal maintenance claim was that she had “looked into” going into the

mission field—which required sixteen months of training—and that she had

made $500 in the previous two years by transporting people—work that she did

not do for the money. In light of the statutory language and the cases above,

we hold that there was insufficient evidence upon which the trial court could

exercise its discretion to award spousal maintenance. Therefore, the trial court

erred by awarding spousal maintenance. We sustain Harlon’s third issue. 5




      5
          Because Harlon challenged the trial court’s award of spousal
maintenance on the ground that there was insufficient evidence, his remedy is
a new trial on the issue of spousal maintenance. See Glover v. Tex. Gen.
Indem. Co., 619 S.W.2d 400, 401–02 (Tex. 1981) (holding that if the court
of appeals sustains an issue or point because the evidence is factually
insufficient, it must reverse the judgment of the trial court and remand for new
trial); but cf. Watson v. Watson, 286 S.W.3d 519, 523, 525 (Tex. App.—Fort
Worth 2009, no pet.) (reversing and rendering judgment when appellant
complained that, rather than insufficient evidence, there was no evidence to
support the award of spousal maintenance).

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                               IV. Conclusion

     Harlon’s third issue is dispositive. Having sustained that issue, we need

not reach his first two issues. See Tex. R. App. P. 47.1. We affirm the trial

court’s divorce decree except for the part pertaining to spousal maintenance.

We reverse the portion of the decree granting spousal maintenance and remand

this case to the trial court for a new trial solely on the issue of spousal

maintenance.




                                          BOB MCCOY
                                          JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: December 10, 2009




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