                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00007-CV

                 IN THE MATTER OF THE MARRIAGE OF
                         FRANK L. FRANKLIN
                               AND
                         CHONG H. FRANKLIN


                        From the County Court at Law
                             Hill County, Texas
                           Trial Court No. 49,765


                         MEMORANDUM OPINION


      Frank Franklin appeals from a final decree of divorce that awarded Chong

Franklin spousal maintenance and required him to maintain her as his beneficiary on

his survivor benefit plan (SBP).   Frank complains that the trial court abused its

discretion in awarding maintenance, in the calculation of the amount of maintenance,

by including the SBP provisions, and by refusing to enter findings of fact and

conclusions of law. Because we find that the trial court abused its discretion in its

calculation of the amount of spousal maintenance to be awarded, we reverse the

judgment of the trial court awarding $565.00 per month in spousal maintenance to
Chong, remand that issue to the trial court for a new trial, and otherwise affirm the

judgment of the trial court.

        Frank and Chong Franklin were married in Korea in 1977 and separated when

Frank left their residence in El Paso in 1997. Frank retired from the military and was

receiving VA Disability payments in lieu of military retirement.          Frank was also

receiving combat-related special compensation (CRSC) and social security. Chong was

living with their daughter at the time of the final hearing and was unemployed but was

receiving social security. The divorce decree awarded Frank the vast majority of the

community property, all of which Frank had acquired since the parties' separation.

Frank had been paying Chong support during the period of separation.

        Because the trial court's purported refusal to enter findings of fact and

conclusions of law must be decided in order to properly address Frank's other issues,

we will address that issue first.

Findings of Fact and Conclusions of Law

        In his fourth issue, Frank complains that the trial court erred in refusing to make

findings of fact and conclusions of law. Chong responds that Frank did not preserve

this complaint because Frank did not file a reminder pursuant to rule 297 of the rules of

civil procedure after the trial court failed to issue any findings of fact or conclusions of

law. See TEX. R. CIV. P. 297. We agree with Chong. See Averyt v. Grande, Inc., 717 S.W.2d

891, 895 (Tex. 1986) (holding that because reminder not filed, as required by Texas Rule


In the Matter of the Marriage Franklin                                                Page 2
of Civil Procedure 297, appellant waived argument regarding failure to file findings of

fact and conclusions of law). Issue four is overruled.

Spousal Maintenance

        In his first issue, Frank complains that the trial court abused its discretion in its

calculation of spousal maintenance by including his VA Disability and/or Social

Security income in determining his net resources. In his second issue, Frank complains

that the trial court abused its discretion by awarding maintenance to Chong at all

because she did not rebut the presumption that maintenance was not warranted by the

evidence presented at trial. Because the issue of whether the trial court abused its

discretion in awarding maintenance in any amount would be potentially dispositive of

the amount of maintenance awarded, we will address Frank's second issue before his

first issue.

Standard of Review

        We review the trial court's decision to award spousal maintenance under an

abuse of discretion standard. Yarbrough v. Yarbrough, 151 S.W.3d 687, 690 (Tex. App.—

Waco 2004, no pet.).          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 v.

Brooks, 257 S.W.3d 418, 425 (Tex. App.—Fort Worth 2008, pet. denied). If there is some

evidence of a substantive and probative character to support the trial court's decision or


In the Matter of the Marriage Franklin                                                 Page 3
if reasonable minds could differ as to the result, then the trial court does not abuse its

discretion. In re Marriage of McFarland, 176 S.W.3d 650, 656 (Tex. App.—Texarkana

2005, no pet.).

        Because Frank did not comply with rule 279 regarding late findings of fact and

conclusions of law, we will presume the court made findings necessary to support its

judgment. See Yarbrough, 151 S.W.3d at 690. Further, the judgment must be affirmed if

it can be upheld on any legal theory supported by the evidence. Id.

Eligibility for Spousal Maintenance

        The trial court may exercise its discretion to award spousal maintenance only if

the party seeking maintenance meets specific eligibility requirements. See TEX. FAM.

CODE ANN. § 8.051 (West Supp. 2013). When a divorce is sought in a marriage lasting

ten years or more, a spouse is eligible to seek spousal maintenance if the spouse lacks

sufficient property to meet minimum reasonable needs and cannot support himself or

herself due to (1) an incapacitating physical or mental disability, (2) the lack of adequate

earning ability in a marriage lasting ten years or longer, or (3) a child in the home with a

disability requiring substantial care and supervision.        Id. § 8.051(2).   There is a

rebuttable presumption that maintenance is not warranted unless the spouse has been

diligent in seeking suitable employment or is developing skills necessary to become

able to provide for that spouse's minimum reasonable needs during the period of

separation and while the divorce was pending. Id. § 8.053. This presumption only


In the Matter of the Marriage Franklin                                                Page 4
applies to situations where the spouse lacks adequate earning ability and does not

apply to a spouse unable to seek employment due to an incapacitating physical or

mental disability. Id. § 8.053(a).

        The evidence before the trial court was that Chong was 65 years old at the time of

the final hearing and suffered from hypothyroidism which caused her to be continually

tired and required her to take several naps throughout the day even though she took

medication.      Further, Chong suffered from acid reflux, which required dietary

restrictions and additional medication. Chong did not read or write English well but

had been studying English with her daughter. Additionally, Chong and her daughter

testified that Chong had severe memory problems which inhibited her ability to learn

English, caused her to get lost repeatedly to the degree that Chong's daughter and son-

in-law would have to try to find her. Chong drove herself to church several times a

week but otherwise Chong's daughter drove her mostly because of her memory

problems. Chong's daughter further testified that, as an example, her mother could not

remember how to get to their hotel room where they were staying even though they

had come and gone from the room approximately ten times.

        Chong had been employed as a seamstress at a factory from 1997 to 2006 earning

minimum wage but had been laid off from that job. Chong had not been employed

since that time and felt that she was unemployable because she was too old, had no




In the Matter of the Marriage Franklin                                              Page 5
skills, was continually tired, and could not learn to read and write English because of

her memory problems.

         Frank does not contend that Chong was unable to meet her minimum reasonable

needs.     Based on the evidence before the trial court and using the appropriate

standards, we do not find that the trial court's decision to award maintenance was

outside of the zone of reasonable disagreement. We overrule issue two.

Calculation of Spousal Maintenance

         Frank complains that the trial court abused its discretion in ordering him to pay

$565.00 per month in spousal maintenance to Chong because that amount exceeded 20

percent of his average gross monthly income. TEX. FAM. CODE ANN. § 8.055(a)(2). At

the time of trial, Frank's income consisted of $3,023.00 in VA disability, $1,450.00 in

CRSC, and $1,261.50 in social security benefits. Chong contends that there was no

evidence other than Frank's answer to a question propounded by his counsel that the

$3,023     was    "Department        of   Veteran's   Affairs   service-connected   disability

compensation." See TEX. FAM. CODE ANN. § 8.055(a-1)(2)(F). We disagree. Two exhibits

were offered into evidence which demonstrate that the $3,023 was disability

compensation from the Department of Veteran's Affairs. Additionally, Frank testified

that he had a combat-related disability and VA disability. As such, it was not properly

included in Frank's gross monthly income. Additionally, the social security benefits are

likewise excluded. TEX. FAM. CODE ANN. § 8.055(a-1)(2)(G). Frank's gross monthly


In the Matter of the Marriage Franklin                                                  Page 6
income was $1,450 per month with the exclusion of those two sources of income.

Twenty percent of $1,450 is $290.00, which would be the maximum amount allowed by

statute. TEX. FAM. CODE ANN. § 8.055(a)(2). We sustain issue one. Because the amount

of maintenance awarded by the trial court is discretionary within the statutory limits,

we will reverse the judgment of the trial court relating to the amount of spousal support

awarded and remand for a new trial on the amount of spousal maintenance to be

awarded to Chong. See Deltuva v. Deltuva, 113 S.W.3d 882, 889 (Tex. App.—Dallas 2003,

no pet.).

Inclusion of Additional Terms in Decree

        In his third issue, Frank complains that the trial court abused its discretion by

entering a final decree of divorce that contained provisions requiring him to maintain

Chong as the beneficiary on his survivor benefit plan from his military service because a

letter sent to the parties reflecting the trial court's ruling on the division of property and

award of spousal maintenance did not reference the benefits. The trial court took his

decision under advisement after the final hearing and sent the parties a letter that was

to "serve as the decision on the merits of the case." Counsel for Chong was ordered to

prepare an order consistent with the ruling in the letter.

        We initially note that generally, letters to counsel do not constitute a judgment or

order from which an appeal may be taken. See Goff v. Tuchscherer, 627 S.W.2d 397, 398-

99 (Tex. 1982) (per curiam). When a trial court calls on counsel to submit an order


In the Matter of the Marriage Franklin                                                  Page 7
reflecting a ruling in a letter to the parties, it manifests its intent that the letter ruling is

not a final appealable order. Id at 398. The trial court's statement to Chong's counsel to

prepare the final order demonstrates that the trial court did not intend for the letter to

constitute an order. See Goff, 627 S.W.2d at 398.

        Frank has provided no authority to support his claim that the trial court was

without jurisdiction or otherwise legally unable to enter the divorce decree as written.

We note that the trial court has the authority to modify or alter its judgment prior to the

entry of judgment or until its plenary power expires.

        A hearing was set for the entry of the order and the trial court signed the

judgment that day. The record does not reflect whether or not Frank appeared at the

hearing or even whether a formal hearing was conducted. However, the motion to sign

the attached final decree included the setting notice and also contained a certificate of

service that demonstrated that Frank's trial counsel was served with the motion and

copy of the proposed decree which was ultimately signed by the trial court. Frank does

not complain that he did not have notice of the hearing or of the substance of the

proposed final decree of divorce prior to its entry. Because Frank has not argued or

shown that the trial court's inclusion of additional terms was an abuse of discretion or

otherwise erroneous, we overrule issue three.




In the Matter of the Marriage Franklin                                                    Page 8
Conclusion

        Having found that the trial court abused its discretion in its calculation of the

amount of spousal maintenance to be awarded, we reverse the judgment of the trial

court relating to the amount of spousal maintenance and remand this proceeding to the

trial court for a new trial on the amount of spousal support to be awarded. Having

found no additional error, we affirm the judgment of the trial court in all other respects.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded in part, affirmed in part
Opinion delivered and filed August 29, 2013
[CV06]




In the Matter of the Marriage Franklin                                               Page 9
