Opinion issued November 20, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00839-CV
                           ———————————
                            JERRY DAY, Appellant
                                        V.
                            JEANIE DAY, Appellee


                   On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-32248


                                  OPINION

      Jerry Day appeals from a final decree of divorce awarding Jeanie Day

spousal maintenance of $500 per week for 60 calendar months and thereafter $300

per week for 15 calendar months. On appeal, Jerry argues in five issues that “there

is no evidence” to satisfy the statutory requirements for spousal maintenance or
support either of the two findings necessary to overcome the presumption that

spousal maintenance is not warranted. We affirm.

                                     Background

      Jerry and Jeanie married in 1992. After a five-year separation, Jeanie filed

for divorce in 2012. Jerry and Jeanie have one child, who is over the age of 18. 1 At

trial, Jeanie testified that Harvey Home Health has employed her as a receptionist

for five years, and over that time her pay has increased from $30,000 to $34,000

annually. She testified that her income is not enough money to financially support

herself. Jeanie also alleged that Jerry had wasted community funds in violation of a

court order. To remedy this fraud on the community estate, she asked the trial court

to award her a reconstitution 2 of the estate against Jerry through court-ordered

spousal maintenance. Following a two-day bench trial, the trial court awarded

Jeanie spousal maintenance in the amount of $500 per week for 60 calendar

months and thereafter $300 per week for 15 calendar months, for a total of

$149,500.

      The next week, Jerry submitted a request for findings of facts and

conclusions of law. Jeanie then submitted proposed findings of facts and


1
      The child was a minor when the divorce petition was filed, but reached age 18
      shortly before the final divorce decree.
2
      The reconstituted estate is the total value of the community estate that would exist
      if an actual or constructive fraud on the community had not occurred. TEX. FAM.
      CODE ANN. § 7.009 (West Supp. 2014).

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conclusions of law, which the court signed without modification. In those findings,

the trial court found, in pertinent part, that:

       6.     Jeanie Day will lack sufficient property, including her separate
              property, on dissolution of the marriage to provide for her
              minimum reasonable needs.

       7.     The duration of the marriage was ten years or longer, and Jeanie
              Day lacks the ability to earn sufficient income to provide for
              her minimum reasonable needs.

       8.     The following factors were taken into consideration in
              determining the nature, amount, duration, and manner of
              periodic payments:

              a.     Jeanie Day and Jerry Day were married for at least
                     twenty years but not more than thirty years;

              b.     Jerry Day’s excessive or abnormal expenditures or
                     destruction, concealment, or fraudulent disposition of
                     community property;

              c.     Jeanie Day’s contribution as primary caregiver of the
                     parties’ child;

              d.     Jeanie Day’s contribution as homemaker; and

              e.     Jerry Day’s marital misconduct, including adultery and
                     cruel treatment.

       9.     The net resources of Jerry Day per month are $10,174.00.

                                      .      .    .

       25.    Jerry W. Day should pay spousal maintenance in the amount of
              $500.00 per week for a period of 60 months, beginning August
              8, 2013 and thereafter $300.00 per week for a period of 15
              months.




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The court also made findings concerning Jerry’s fraud on the community and

valued the reconstituted estate at $299,466.26.

                                Standard of Review

      In his third through fifth issues, Jerry argues that there is legally insufficient

evidence that Jeanie lacks the ability to earn sufficient income (issue three), has

exercised diligence in earning sufficient income (issue four), or has exercised

diligence in developing the necessary skills to provide for her reasonable needs

during their separation (issue five). Therefore, Jerry claims, Jeanie has not

overcome the presumption that spousal maintenance should not be awarded.

      We review a spousal maintenance award 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. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Dunn, 177

S.W.3d at 396. “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.”

Dunn, 177 S.W.3d at 396. “Because of the overlap between the abuse-of-discretion

and sufficiency-of-the-evidence standards of review, this court engages in a two-

pronged inquiry to determine whether the trial court (1) had sufficient information



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on which to exercise its discretion and (2) erred in its application of that

discretion.” Corrick v. Corrick, 01-09-00656-CV, 2011 WL 664007, at *3 (Tex.

App.—Houston [1st Dist.] Feb. 17, 2011, no pet.). 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.” Dunn, 177 S.W.3d at 396.

(citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)); see Stamper v. Knox, 254

S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

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

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; see Zenner

v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston

[1st Dist.] 2012, pet. denied).




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           Evidence on Income Sufficient to Meet Reasonable Needs

      There are several scenarios for which Texas law allows an award of spousal

maintenance from one divorcing spouse to the other. TEX. FAM. CODE ANN.

§ 8.051 (West Supp. 2014). In all cases, the spouse receiving maintenance must

lack sufficient property upon dissolution of the marriage to provide for her

reasonable minimum needs. Id. In the dissolution of a marriage lasting 10 years or

longer, the spouse seeking maintenance must also lack the ability to earn sufficient

income to provide for her minimum reasonable needs. 3 Id. § 8.051(2)(B); in re

Green, 221 S.W.3d 645, 647 (Tex. 2007); Cooper v. Cooper, 176 S.W.3d 62, 64

(Tex. App.—Houston [1st Dist.] 2004, no pet.).

      Jerry does not challenge the trial court’s finding that Jeanie will lack

sufficient property upon dissolution of the marriage. He also concedes that “there

is evidence” that Jeanie’s current income does “not meet her minimum reasonable

needs.” But, in his third issue, he contends that the trial court erred because “there

is no supporting evidence that she lacked the ability to earn more.” Because Jerry



3
      The trial court may also order spousal maintenance if the other spouse was
      convicted of or received deferred adjudication for a criminal offense that also
      constitutes an act of family violence, if the maintenance-seeking spouse has an
      incapacitating disability, or if she must care for a child of the marriage with a
      disability. TEX. FAM. CODE ANN. § 8.051. Jeanie did not seek spousal maintenance
      under these provisions. Jerry’s first two issues contend that there was no evidence
      of these requirements. We agree, but those issues do not resolve this case because
      Jeanie sought spousal maintenance on another basis: lack of an adequate income.


                                           6
limits his argument to whether Jeanie is able to earn additional income, we limit

our review accordingly. See Cooper, 176 S.W.3d at 64.

         Section 8.051(2) focuses on whether Jeanie can provide for her minimum

reasonable needs currently, not whether she can do so in the future with additional

training or education. See Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.—

Dallas 2003, no pet.) (spouse seeking maintenance who obtained real estate license

while divorce was pending but needed about one year to “get her real estate

business ‘rolling’” lacked ability to earn sufficient income). We therefore consider

Jeanie’s current, not future, ability to earn “sufficient income.”

         The evidence shows that Jeanie earns approximately $1,900 per month and

that her expenses are approximately $3,000 per month. She adduced evidence that

she presently lacks the ability to earn more. Jeanie already works full time. Her

paystubs indicate that she works additional overtime hours. She has no assets that

could provide rental income. She has dramatically limited her expenses and

exhausted her savings to make ends meet. This evidence supports the conclusion

that she lacks the ability to supplement her current income.

         Based on the evidence, the trial court did not abuse its discretion in

concluding that Jeanie presently lacks the ability to earn sufficient income to

provide for her minimum reasonable needs. Accordingly, we overrule Jerry’s third

issue.



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          Overcoming the Presumption Against Spousal Maintenance

      If a spouse demonstrates that she presently lacks the ability to earn sufficient

income to provide for her minimum reasonable needs, she must also overcome a

rebuttable presumption that spousal maintenance is not warranted by showing that

she 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.” TEX. FAM.

CODE ANN. § 8.053 (West Supp. 2014); see also Cooper, 176 S.W.3d at 64. Jerry

contends that neither condition was satisfied here.

A.    Evidence on diligence in earning an adequate income

      In his fourth issue, Jerry contends that Jeanie presented no evidence that she

exercised diligence in earning sufficient income, and thus has failed to satisfy

section 8.053(a)(1). We disagree. Unlike section 8.053(a)(2), section 8.053(a)(1)

does not limit the diligence inquiry to “the period of separation and . . . the time the

suit for dissolution of the marriage is pending.” Compare TEX. FAM. CODE ANN.

§ 8.053(a)(1) with § 8.053(a)(2). Jeanie testified that, while she and Jerry lived

together as a married couple, she was the primary caregiver of their daughter; she

was often the only source of steady, regular income and she paid most of the




                                           8
couple’s bills. She testified that Jerry’s income was “sporadic,” he was jailed

twice, and he was violent and abusive.

      When Jeanie and Jerry separated in 2007, she had been unemployed for nine

months. Jeanie immediately obtained full-time employment and she has kept this

job for more than five years, increasing her annual salary from $30,000 to $34,000.

She also produced evidence that she has purposefully limited her expenses. She

quit a substance-abuse habit and negotiated a $150 per hour reduction in her

divorce lawyer’s fees. She has bought no home furnishings save for replacing her

refrigerator. Her car is seven years’ old and needs maintenance. She has continued

to raise the couple’s daughter, who graduated from high school during the divorce

proceedings.

      Although Jerry sent Jeanie a monthly stipend to help pay for their daughter,

Jeanie testified that parenthood has been a major financial strain. She testified that

she sold separate real property—two homes purchased prior to her marriage and an

inherited one-half interest in her parent’s home—and took out personal loans to

make ends meet. She also produced evidence that she used her money inherited

from her parents—her separate property—to help support her and her daughter.

When asked on cross-examination why she needed to take these measures to cover

her expenses, she responded: “I have a daughter that I support.”




                                          9
      Jerry contends that Jeanie must show that she has sought additional or more

lucrative employment. While an earlier version of the statute required diligence in

seeking “suitable employment,” in 2011 the Legislature broadened the inquiry to

“earning sufficient income.” Compare TEX. FAM. CODE ANN. § 8.053 (West 2006)

with § 8.053 (West Supp. 2014). Jeanie met this requirement by limiting her

expenses, selling her separate property, exhausting her inheritance, and taking

loans—all while working more than full time and being the sole caregiver to the

couple’s daughter. Therefore, we overrule Jerry’s fourth issue.

B.    Diligence in developing necessary skills

      In his fifth issue, Jerry contends that Jeanie did not overcome the

presumption against spousal maintenance because she did not present any evidence

that she exercised diligence in developing the necessary skills to provide for her

minimum reasonable needs, and thus has failed to satisfy section 8.053(a)(2).

      To overcome the presumption, the spouse seeking maintenance must satisfy

section 8.053(a)(1) “or” section 8.053(a)(2). TEX. FAM. CODE ANN. § 8.053(a). The

statute’s use of the disjunctive indicates that these are two independent methods to

overcome the presumption. We have already concluded that Jeanie has shown

diligence under section 8.053(a)(1). Therefore, she need not satisfy section

8.053(a)(2). Accordingly, we overrule Jerry’s fifth issue.




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                                  Conclusion

      We affirm the trial court’s spousal maintenance award.




                                            Harvey Brown
                                            Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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