                                  NO. 07-05-0205-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                NOVEMBER 2, 2006
                         ______________________________

                   IN THE MATTER OF THE MARRIAGE OF
               RACHEL M. GONZALEZ AND HECTOR N. GONZALEZ
                    _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2004-525,138; HONORABLE CECIL G. PURYEAR, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Hector N. Gonzalez presents a single issue by which he challenges the provision

of his divorce decree directing payment of spousal maintenance to appellee Rachel M.

Gonzalez. We affirm the decree.


      During their 22 years of marriage the couple had two daughters. Rachel also earned

a college degree and taught in private school. Hector worked as a gospel singer with

family members for several years. In 1999 the couple sold their house and invested the

proceeds in equipment for Hector to establish a carpet cleaning business. He operated

this business as a sole proprietorship through the time of trial. In 2000 and 2003 Rachel
had been diagnosed and treated for cancer. Hector moved out of their rented house in the

fall of 2003. Rachel filed a petition for divorce in January 2004 alleging the marriage had

become insupportable and Hector engaged in “cruel treatment.” At that time the couple’s

older daughter, Crystal, was 18 years old and attending college in Lubbock. Their second

child, Celeste, was 17 years old. Rachel’s first amended petition sought a disproportionate

division of the community estate and spousal maintenance. Temporary orders issued April

30, 2004 directed Hector to pay rent and utilities through that date on the house occupied

by Rachel, insurance and loan payments on vehicles used by Rachel and Celeste, health

insurance for Rachel and a $70 per week cash payment. Beginning May 1, 2004, Hector

was ordered to pay $1715 as “spousal/child support.” In the summer of 2004 Rachel and

Celeste moved to Austin where Celeste began college in the fall. Celeste turned 18 in

November 2004.


       At the final hearing in April 2005 Hector and Rachel were the only witnesses. The

parties presented differing views of the value of the carpet cleaning business. Hector

believed the business had no net value while Rachel, though conceding no knowledge of

business debts, valued the business at approximately $20,000. Calculation of the income

from the business and its value was hindered by the poor state of business records and

Hector’s failure to file tax returns in 2003 and 2004. The major community debt was a joint

student loan with a balance just under $38,000.1 Rachel testified she was employed full-

time as a recruiter for Austin Community College. She also testified to her income and




      1
          Evidence indicates both spouses benefitted from the proceeds of the loan.

                                            2
expenses while living in Austin. The parties also presented testimony concerning Hector’s

failure to make payments to Rachel required under the court’s temporary support order.


       The final decree terminated the marriage and divided the community estate by

awarding each spouse personal property, cash and accounts. It awarded to Rachel a 1998

Chevrolet Blazer. Hector was awarded the sole proprietorship business and the 1986 van

used in that business. The decree made Rachel responsible for the debt on the Chevrolet

Blazer and half of the outstanding student loan. Hector was made solely responsible for

all debts of the business, half of the student loan, outstanding tax liability attributable to

operation of the business, and the balance due on a credit card account. He was also

ordered to pay Rachel $1000 per month in spousal maintenance for twelve months

beginning May 1, 2005. Finally, the order found Hector in contempt for failing to make

support payments under the court’s temporary orders. He was ordered to serve 180 days

in jail, commitment being suspended conditioned on his payment of $6540 in past due

support. Hector timely perfected appeal from the trial court’s decree and, as noted,

presents a single issue challenging the award of spousal maintenance.


       The award of post-divorce spousal maintenance or alimony was impermissible

under the statutes and public policy of Texas until 1995. Ex parte Casey, 944 S.W.2d 18,

19 (Tex.App.–Houston [14th Dist.] 1997, no pet.). Such awards are now authorized in

limited circumstances by Chapter 8 of the Family Code. Tex. Fam. Code Ann. §§ 8.001-

.305 (Vernon 2006). Section 8.051 provides a court may order maintenance payments for

a spouse only if:



                                              3
      (1) the spouse from whom maintenance is requested was convicted of or
      received deferred adjudication for a criminal offense that also constitutes an
      act of family violence under Title 4 and the offense occurred:


             (A) within two years before the date on which a suit for dissolution of
             the marriage is filed; or


             (B) while the suit is pending; or


      (2) the duration of the marriage was 10 years or longer, the spouse seeking
      maintenance lacks sufficient property, including property distributed to the
      spouse under this code, to provide for the spouse's minimum reasonable
      needs, as limited by Section 8.054, and the spouse seeking maintenance:


             (A) is unable to support himself or herself through appropriate
             employment because of an incapacitating physical or mental
             disability;


             (B) is the custodian of a child of the marriage of any age who requires
             substantial care and personal supervision because a physical or
             mental disability makes it necessary, taking into consideration the
             needs of the child, that the spouse not be employed outside the
             home; or


             (C) clearly lacks earning ability in the labor market adequate to
             provide support for the spouse's minimum reasonable needs, as
             limited by Section 8.054.


Tex. Fam. Code Ann. § 8.051 (Vernon 2006). Chapter 8 also establishes a presumption

against an award of spousal maintenance which may be overcome by evidence the spouse

seeking maintenance has exercised diligence in seeking suitable employment or

developing skills to become self supporting, or is unable to do so because the spouse or

a child under the spouse’s care suffers from a disability. Tex. Fam. Code Ann. § 8.053


                                            4
(Vernon 2006); see Pickens v. Pickens, 62 S.W.3d 212, 215 (Tex.App.–Dallas 2001, pet.

denied) (addressing disability). Additional limitations are placed on the amount and

duration of maintenance awards. Monthly maintenance may be no more than 20 percent

of the obligor’s average gross income or $2500, whichever is less. Tex. Fam. Code Ann.

§ 8.055 (Vernon 2006).       The period of payments must be limited to “the shortest

reasonable period that allows the spouse seeking maintenance to meet the spouse’s

minimum reasonable needs by obtaining appropriate employment or developing an

appropriate skill,” unless the spouse’s ability to provide for the spouse’s own needs is

precluded by disability, care for a young child or other “compelling impediment.” Tex. Fam.

Code Ann. § 8.054(a) (Vernon 2006).


       We review an award of spousal maintenance for abuse of discretion. Alexander v.

Alexander, 982 S.W.2d 116, 119 (Tex.App.–Houston [1st Dist.] 1998, no pet). The trial

court does not abuse its discretion if there is some probative and substantive evidence to

support the trial court's decision or if the evidence is conflicting. In re A.S.M., 172 S.W.3d

710, 717 (Tex.App.–Fort Worth 2005, no pet.). Where, as here, no findings of fact and

conclusions of law are requested or filed, we presume the court made findings necessary

to support its judgment. Yarbrough v. Yarbrough, 151 S.W.3d 687, 690 (Tex.App.–Waco

2004, no pet.). Further, the judgment must be affirmed if it can be upheld on any legal

theory supported by the evidence. Id.




                                              5
       We agree with Hector’s position there is no evidence of family violence or evidence

that Rachel is unable to support herself because of an incapacitating disability.2 The trial

court’s order can be upheld only if there is some probative evidence supporting implied

findings that (1) the parties were married at least ten years, (2) Rachel lacks sufficient

property to provide for her minimum reasonable needs, and (3) she clearly lacks earning

ability adequate to provide for her minimum reasonable needs. Limbaugh v. Limbaugh,

71 S.W.3d 1, 12 (Tex.App.–Waco 2002, no pet.).


       There is no question the parties were married more than ten years. Hector also

concedes that Rachel lacks sufficient property to provide for her minimum reasonable

needs. Hector’s brief and our review focus on the third element. The presence of that

element depends on two factual determinations: Rachel’s minimum reasonable needs,

and whether she clearly lacked the earning ability to meet those needs. Rachel testified

her expenses totaled $2824 a month, and submitted a list of monthly expenses totaling that

amount. The list included the monthly payments on the 1998 Blazer, for which she was

responsible under the property division, but the list did not include other needs to which

Rachel testified, such as the need for new tires for the vehicle.3 Her testimony and the list

provide some probative evidence from which the court could determine her minimum




       2
         Hector does not deny that Rachel was unable to work while recovering from
surgery to treat her cancer. However, those events occurred before the divorce petition
was filed.
       3
       Rachel’s evidence also included a list of unpaid medical expenses totaling some
$7100. Her monthly expense list did not make any provision for payment of those medical
expenses.

                                             6
reasonable needs. See Limbaugh, 71 S.W.3d at 14 (relying on similar evidence to support

findings of minimum reasonable needs).


       Rachel’s employment history is not fully developed in the evidence. As noted, at

some time during the marriage, she obtained a college degree. She testified she did not

hold a state teacher’s certificate,4 but had taught in a private high school that did not

require certification. She last taught during the school year ending in 2003. After she and

Celeste moved to Austin in the summer of 2004, Rachel worked at a department store and,

for a week, at another job. She also worked part-time as a substitute teacher, earning $70

a day. Her tax return shows total 2004 wages of just over $1500. Rachel testified she

borrowed money from several family members and friends. In January 2005, she obtained

a full-time job as a recruiter for Austin Community College. She said her health insurance

through her employer would become effective on May 1, 2005. Her monthly net income

from her full-time employment was $2170, leaving a shortfall of some $650 a month when

compared with her estimate of monthly expenses of $2824.


       Rachel’s progression from part-time to full-time employment, with increasing

benefits, during the pendency of the divorce proceeding provides some evidence she

exercised diligence in seeking suitable employment. The trial court did not abuse its

discretion through its implied finding that she overcame the presumption established by

section 8.053(a).




       4
         She said she attempted to obtain state certification at one point, but did not “pass
the test.”

                                             7
           Hector argues that Rachel’s possession of a college degree and her acquisition

of full-time employment by the time of trial disqualify her from spousal maintenance

through the operation of section 8.054, which limits the duration of maintenance to the

“shortest reasonable period that allows the spouse seeking maintenance to meet the

spouse’s minimum reasonable needs by obtaining appropriate employment or developing

an appropriate skill . . . .” Tex. Fam. Code Ann. § 8.054 (Vernon 2006). He contends the

evidence is clear that Rachel has appropriate skills and had obtained appropriate

employment. We do not agree that the possession of a college degree disqualifies one

from spousal maintenance. See Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex.App.–

Dallas 2003, no pet.) (award of spousal maintenance to college graduate realtor not abuse

of discretion). Nor do we agree that Rachel’s mere obtaining of full-time employment

precludes the award of spousal maintenance to her when evidence shows she still is not

yet able to meet her minimum reasonable needs. Section 8.054 does not focus simply on

the period necessary to obtain employment, but that which allows the spouse to meet

minimum reasonable needs.


       Hector’s argument is essentially the same as that rejected by the court in In re

Marriage of Hale, 975 S.W.2d 694 (Tex.App.–Texarkana 1998, no pet.), which found no

statutory language and no authority to support the husband’s contention that the wife’s

gainful employment during their separation before divorce precluded an award of spousal

maintenance.5 Id. at 698. We find no abuse of discretion in the trial court’s implicit finding


       5
         We recognize Rachel’s earning ability in the labor market greatly exceeds that of
the wife seeking maintenance in Marriage of Hale, 975 S.W.2d at 695-96. That difference
does not detract from the applicability of the court’s holding to our situation.

                                              8
that Rachel, at the time of trial, clearly lacked earning ability in the labor market adequate

to provide support for her minimum reasonable needs. See Deltuva, 113 S.W.3d at 888

(no abuse of discretion in award of maintenance to wife who acquired real estate license

and sold one house before trial) (citing Limbaugh, 71 S.W.3d at 15).


       Appellant’s issue is overruled, and the trial court’s judgment is affirmed.




                                                  James T. Campbell
                                                      Justice




                                              9
