
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-057 CV

____________________


KENNETH CARLIN, Appellant


V.


MARGARET ELIZABETH CARLIN, Appellee




On Appeal from the 1-A District Court
Jasper County, Texas

Trial Cause No. 19,903




OPINION
 Kenneth Carlin appeals the trial court's "Order Granting Extension Of Alimony." 
Kenneth and appellee, Margaret Elizabeth Carlin, were divorced on May 28, 1998. 
Kenneth and Margaret consented to the terms contained in the final decree of divorce to
the extent permitted by law.  One of the provisions agreed to by the parties provided for
Margaret to receive a monthly spousal maintenance payment of $1,100.  Said payment was
based upon Margaret having been found eligible by the trial court for spousal maintenance
pursuant to Chapter 8 of the Texas Family Code.  See Tex. Fam. Code Ann. §§ 8.001 -
8.305 (Vernon Supp. 2002). (1)  At the time of the divorce, Margaret's eligibility for spousal
maintenance was apparently due to her having developed rheumatoid arthritis during the
marriage, either in the year 1983 or 1984.
	The portion of the 1998 decree upon which we must focus reads, in pertinent part,
as follows: 
		(C) The Court finding that [Margaret] is eligible for maintenance
pursuant to Chapter 8, Texas Family Code, [Kenneth] is ORDERED to pay
to [Margaret] the sum of $1,100.00 per month with the first payment thereon
being due on June 1, 1998, and the payments thereafter being due and
payable on [Kenneth's] pay days to amount to $1,100.00 per month, until the
earliest of one of these events occurs:

		. . . .

		(2) Three (3) years from and after the date of this Decree
unless [Margaret] continues to be unable to support herself at
appropriate employment because of the incapacitating physical
disability which the Court finds she is subject to as of May 1,
1998[.]

	Prior to the decree's three-year anniversary date, Margaret's trial counsel sent a
letter to Kenneth.  We reproduce pertinent portions from the letter:
		I have been employed by your ex-wife, Ms. Margaret Carlin,
regarding the Temporary Alimony which you are presently paying to her. 
Under the terms of the Decree of Divorce, the alimony benefits will cease
effective May, 2001, unless it is shown that Ms. Carlin is still disabled.  The
purpose of this letter is to pose two questions so that I will know whether I
need to proceed with filing the appropriate Motion to have that extended:


		Will you agree to an Agreed Order being entered,
acknowledging the fact that Ms. Carlin is still under the
disability that she was under at the time the Decree was
entered?
 		Will you be agreeable to furnish proof of your present
earnings for re-computation of the alimony benefits?

	The record indicates that Kenneth did not respond to the letter from Margaret's trial
counsel.  On June 7, 2001, Margaret filed an instrument with the trial court entitled,
"Motion For Extension Of Alimony."  In said motion, Margaret alleged: "Three years
have passed since the date of the first payment and the disability of which Margaret
Elizabeth Carlin was under at the time of entry of the Decree of Divorce continues and has
increased in severity and therefore she is still incapacitated."  Margaret further requested
the trial court to order Kenneth to continue the $1,100 monthly support payments unless
his earnings had increased in which case the monthly support amount should also increase. 
Margaret's prayer to the trial court requested the $1,100 payments from Kenneth continue
"until said disability ceases, her death or her remarriage[.]"  Kenneth answered with a
general denial. 
	An evidentiary hearing was conducted by the trial court with Kenneth and Margaret
being the key witnesses. (2)  At the conclusion of the hearing, the trial court requested each
party submit written summation and argument and withheld ruling until a later date. 
Following the filing of the written arguments, the trial court ruled that the spousal
maintenance would continue in the amount of $1,100.  This ruling was memorialized by
the order granting the extension of "alimony."  Findings of fact and conclusions of law
were also filed by the trial court. 
	On appeal, Kenneth complains that the trial court abused its discretion in "deciding"
Margaret was unable to support herself because of an incapacitating physical disability, and
also by "failing to decide" that a material and substantial change had taken place in
Kenneth's circumstances warranting a reduction in his monthly spousal support obligation. 
The somewhat detailed procedural history set out above is warranted by the fact that the
issues present us with a case of first impression as they arise from what appears to be an
extension of the spousal support provisions contained in the 1998 decree.  Although our
research has turned up a number of appellate decisions involving the propriety of granting
or denying a request for inclusion of spousal maintenance in the final divorce decree, (3) we
have found no appellate decision in which review of a subsequent modification or
extension of spousal maintenance by the trial court was at issue.
APPLICABLE LAW

 Kenneth argued to the trial court, as he now does to us, that the instant cause filed
by Margaret is a "modification" of the 1998 decree under the provisions of Section 8.057. 
While not explicitly taking issue with Kenneth's "modification" argument, Margaret
appears to characterize her action as an attempt to extend or "continue" what the parties
had already agreed to in the 1998 decree.  At the same time, however, Margaret also
seems to take the position that the 1998 decree provided for cessation of spousal
maintenance payments upon reaching "the earliest of one of five contingencies."  As
quoted above, that provision does appear to terminate the spousal maintenance at the end
of three years from the date of the decree.  On closer examination, however, the clause
following the word "unless" seems to be the operative one.  Said clause provides that if
Margaret "continues" to be unable to support herself because of her "incapacitating
physical disability," which she was found to have as of May 1, 1998, then the spousal
support payments would continue.  Therefore, Margaret's petition is not so much a motion
to modify the 1998 decree as it is either a request of the trial court to review facts in order
to determine whether Margaret's disability is continuing, see Section 8.054(b), or, less
likely, a motion to enforce the maintenance order as by the filing date Kenneth had ceased
to make the monthly payments.  See Section 8.059(a).  While the record is silent as to
Margaret and Kenneth's intent for including the "Three (3) years" language in
Contingency Two of the 1998 decree, a reasonable reading, in light of the statute, would
be that the parties intended for judicial review, after the expiration of three years, of
Margaret's inability to support herself at appropriate employment because of her disability. 
	The significance for our properly framing the cause of action in the trial court is that
under the provisions for modifying the 1998 decree, Margaret would have been required
to prove "a material and substantial change in circumstances" of either herself or Kenneth. 
See Section 8.057(c).  By contrast, a mere request for the trial court to review continuation
of the spousal maintenance order appears to place no special burden of proof on the
petitioner.  See Section 8.054(b).  Therefore, we find Margaret's burden at trial was to
prove to the trial court that her incapacitating physical disability was continuing so as to
prevent her from supporting herself through appropriate employment by a preponderance
of the evidence.  See Ellis County State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994)
(In civil cases, unless a more onerous burden is mandated, all issues of fact are resolved
from a preponderance of the evidence.).
	The parties agree that the standard of appellate review is abuse of discretion.  The
test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, that
is without reference to guiding rules and principles.  See In the Interest of A.D.H., 979
S.W.2d 445, 446 (Tex. App.--Beaumont 1998, no pet.).  Under the abuse of discretion
standard, legal and factual sufficiency of the evidence, although not independent grounds
for asserting error, are relevant factors in assessing whether the trial court abused its
discretion.  See In the Interest of A.D.D., 30 S.W.3d 609, 614 (Tex. App.--Texarkana
2000, no pet.).  Because we have a complete reporter's record before us, the trial court's
findings of fact are not conclusive as to our review.  See Swanson v. Swanson, 148 Tex.
600, 228 S.W.2d 156, 158 (1950); Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.
App.--Houston [14th Dist.] 1996, no writ); Armstrong v. Armstrong, 601 S.W.2d 724, 727
(Tex. Civ. App.--Beaumont 1980, writ ref'd n.r.e.).  
	Recall that, as petitioner, Margaret had the burden to prove to the trial court that
she was still unable to support herself at appropriate employment because of the
incapacitating physical disability which she was found to be under in 1998, by a
preponderance of the evidence.  As we view her burden, Margaret was required to prove
two facts, viz: (1) that she was still suffering from an incapacitating physical disability, and
(2) that said incapacitating physical disability prevented her from being able to support
herself at appropriate employment.  
THE EVIDENCE: INCAPACITATING PHYSICAL DISABILITY

	Kenneth was the first witness called and testified very briefly.  Pertinent testimony
from Kenneth was limited to the fact that Margaret was diagnosed with rheumatoid arthritis
in 1984 and that her condition "progressively worsen[ed]" from the time of diagnosis until
the divorce in 1998.  There was no attempt by Margaret's trial counsel to have Kenneth
describe specifically how Margaret's condition progressively worsened during the fourteen
years of their marriage following the initial diagnosis.  Kenneth was not cross-examined
and the final witness was Margaret. (4) 
	Margaret testified that she did indeed have rheumatoid arthritis and had developed
it sometime around 1983 or 1984.  Trial counsel then inquired about the braces Margaret
was wearing on her legs.  Margaret replied that the braces enabled her to walk as her
ankles were not stable enough to walk without pain.  Trial counsel then inquired if she had
worn the braces prior to the divorce.  Margaret responded as follows: 
	A.  I wore a brace on my left leg for awhile and then the doctor fused my
left ankle and it did fine for awhile; and then I twisted my ankle out in the
yard and then when it continued to hurt and get worse and worse and when
I went back to the doctor about them - - this was after - -

	Q.[Margaret's Counsel] The divorce.

	A.  - - my divorce.

	. . . .

	A.  He said at this time surgery would not do any good, we would wear my
braces for - - and see how long they would hold up, - - 

	Q.  Okay.

	A.  - - my ankles would hold up.

	We note from Margaret's responses that, since the divorce, she apparently began
wearing a brace on her right leg, but it is unclear whether that was a result of her
rheumatoid arthritis or the result of having twisted her ankle or a combination of both.
	Margaret went on to testify that her arthritis was not restricted to her legs but
affected all the major joints of her body.  The record then reflects the following exchange: 
	Q.[Margaret's Counsel] Okay.  Have you had any surgeries since the time
of the divorce?

	A.  Yes, sir.  I've had hand surgery on both my hands.

	Q.  Okay.  I apologize for asking, but can you show - - show us your hands.

	A.  (Indicating.)  I had joint replacement on these on both hands at different
times.  This one, one time and this one six months later.

	Q.  Okay.

	A.  And they - - on my wrists - - on my left and right wrists they cleaned the
tendons and ligaments out to take the nodules off so they wouldn't rip my
tendons, and he fuzed [sic] my right thumb.

	. . . .

	Q.  And they did the surgical procedures, and is that when they fused the
thumb then?

	A.  Yes, sir.

	Q.  Okay.

	A.  Fused my - - on my right hand.

	Q.  Have you had any other surgeries since approximately then the summer
of '99?

	A.  No.

	Margaret then went on to describe problems with one of her shoulders and then
attempted to describe physical limitations stemming from her arthritis.  Such evidence
would be pertinent to proving the "incapacitating" nature of her disability.  The record
reflects the following testimony from Margaret: 
	Q.[Margaret's Counsel] All right.  Can you tell us what that was.

	A.  A shoulder specialist at Fondren told me I needed orthoscopic [sic]
surgery on my left shoulder to clean out the nodules.  And I went to the
doctor because as I sweep usually I move a lot and my shoulders always
hurt, and I rolled over one night and my left shoulder was hurting real bad
and so I rolled over the other way to get off of it and when I got up the next
morning I was like black and blue (indicating).  

	Q.  All right.  And you're indicating where?

	A.  Between my elbow and my left shoulder.

	Q.  Okay.

	A.  This area (indicating).  And the doctor told me that nodules, the
rheumatory [sic] nodules, had ruptured a little art - - blood vessel or a little
vein or something in there and that's what caused the hemorrhaging and
that's why they suggest I have the surgery on my shoulder.

	Q.  All right.  Do you have any restrictions on how far you can raise your
left hand?

	A.  Yes.

	Q.  And what is that restriction?

	A.  About that (indicating).  Like that.  I mean, I can raise it with my other
arm, but that's all I can do without pain.  I mean, I can raise it about here
(indicating).  

	Q.  Okay.  As far as being able to get up and get about and do tasks, do you
have any restrictions there?  And I'm not asking for what a doctor may have
told you, just what you physically can and cannot do.

	A.  Well, I can - - I can make up my bed.

	Q.  Okay.

	A.  I wash my dishes.  I can clean up so high, dust or something, and I
vacuum my floors and I mop them whenever I can.

	Q.  Can you - - you were telling me this morning about a - - how long it
takes you to mop the certain area in your house.

	A.  My living room and dining room and kitchen hear [sic] are all - - run
together, but yes, I can mop my own house but it takes me anywhere from
two to three hours, because whenever my ankles when I stand a long time
they hurt and move about a lot.  So whenever they get to hurting I sit down
a while and rest a while and when they quit I get up and work some more.

	On cross-examination, Kenneth's trial counsel did not question the fact that
Margaret continued to suffer from rheumatoid arthritis, but did attempt to show, from
Margaret herself, that her arthritis was not at the "incapacitating" stage.  The record
reflects the following exchanges: 
	Q.[Kenneth's Counsel] As a matter of fact, the house that you live in that
you have a hard time mopping is 3800 square feet; is that correct?

	A.[Margaret] Yes.

	Q.  Four bedrooms and three baths, I believe?

	A.  Correct.

	. . . .

	Q.  You also testified that you do all your own driving; is that right?

	A.  Sir?

	Q.  You do - - you drive?

	A.  Yes, sir.

	Q.  As a matter of fact, you and one of your relatives took some other
relatives of y'all's a couple of months ago about 700 mile road trip one way
to somewheres in West Texas and back; is that right?

	A.  Correct.

	Q.  And you did about half the driving?

	A.  Probably.

	Q.  You can use a telephone, both push-button and rotary dial; is that right?

	A.  I can use a push-button easily.

	Q.  You told me the other day you use - - can dial a rotary phone with a
pencil; is that right?

	A.  True.  

	Q.  And you also told me that the surgeries that you had on your hands two
years ago significantly improved the usage of your hands; is that right?

	A.  This is true.

	Q.  So actually your hands are in better shape than what they were two years
ago?

	A.  Yes.

	. . . .

	Q.  Okay.  I think you also told me that you do your own cooking and your
own household work; is that right?

	A.  Yes.

	Q.  You take care of your mom; - - 

	A.  Yes.

	Q.  - - is that correct?
		As a matter of fact, you've told me that you thought you gave her
very adequate care?

	A.  I beg your pardon?

	Q.  You told me on - - in your deposition, I believe, that you thought that the
care you gave your mom, whose [sic] an Alzhemiers [sic] patient, was very
adequate?

	A.  At this time it is.  

	. . . .

	Q.  I think you told me the other day that you sometimes attend games of
your grandkid's [sic]; is that correct?

	A.  I go to my granddaughter's volleyball game and I go watch my
grandsons play football.

	Q.  Okay.  And where are those games held?

	A.  Some are here, some are - - we have one tonight in Kirbyville.  It
depend [sic] on where they are.

	Q.  Volleyball games are done inside in a gym?

	A.  Yes, they are.

	Q.  You sit up in the bleachers?

	A.  Yes, I do.

	Q.  So you're able to climb up in the bleachers; is that right?

	A.  One up.  Not by myself.  

EVIDENCE: APPROPRIATE EMPLOYMENT

	Our examination of the record for evidence of Margaret's inability to support
herself at appropriate employment is sparse.  All that appears under both direct and cross-examination of Margaret is reproduced as follows: 
	Q.[Margaret's Counsel] Okay.  At the time of the entree [sic] of the Decree
of Divorce were you employed anywhere outside the home?

	A.[Margaret] No.

	. . . .

	Q.  All right.  What work prior to the divorce - - what type of work had you
done outside the home and when in relation to the divorce?

	A.  I had been doing teller work and banking.  I worked at a doctor's office
for awhile.

	Q.  Okay.  And when was the last time you had work outside the home?  

	A.  The year we went overseas and I think that was about '84, '85.

	Q.  Since the time of the divorce have you been able to work outside the
home any?

	A.  Not until just recently.

	Q.  All right.  And where - - where are you employed now?

	A.  At Ace Hardware.

	Q.  Okay.  And how did you - - well, I'm sorry, strike that.  What type of
work do you do for them?

	A.  Reconciling and balancing - - making the bank deposits.

	Q.  Okay.  Bookkeeping - -

	A.  Yes.

	Q.  - - nature type work?

	A.  Yes.  

	Q.  And what are your work hours?

	A.  I work from 7:00 to about 11:00, 11:30.

	. . . .

	Q.  Five days of the week?

	A.  Oh, yes, sir.

	Q.  With that job are you able to alternately sit and stand as you deem
necessary?

	A.  Yes, sir.

	Q.  And what are you paid?  How much - - 

	A. $6 an hour.

	Q.  Okay.  So you make about 120 hours [sic] a week gross?

	A.  About.

	Q.  And how did you come upon this job, Ms. Carlin?

	A.  Well, I had been seriously thinking about finding some type of
bookkeeping to do when I got my mother situated and the people at Ace
Hardware knew my situation, and my daughter is manager at Ace Hardware
and she - - her man - - the owners gave her an application for me to bring
home.  I could not go ask for an application there because they have a policy
of not hiring family.

	Q.  Okay.

	A.  And they said they'd been talking about it and they asked Pam to bring
it home to me and to fill out.  I filled it out, took it up there and they hired
me.  

	Q.  Okay.  Does that seem to be working - - working pretty good?

	A.  Yes, sir.

	. . . .

	Q.  Do you think your body can stand up to working?

	A.  I couldn't stand up to doing what I'm doing now all day long.

	Q.  Okay.  Why?

	A.  Well, if I stand too long to file or anything like that I have to sit down
because of my ankles, and I can't stand and look down because of my neck. 
It's - - that's, you know - - (5) 

	. . . .

	Q.[Kenneth's Counsel] Ms. Carlin, during the three years you've received
alimony you've made no efforts whatsoever to get a job, have you?

	A.  This is true.

	Q.  As a matter of fact, you didn't even go to Ace Hardware, they - - the
daughter sent an application or brought an application home for you; isn't
that right?

	A.  That's true.

	. . . .

	Q.  You've also testified in your deposition that you took - - during the last
three years you've taken one course regarding getting familiar with
computers; is that right?

	A.  Yes.

	Q.  And that was, I believe, a five week course of about two hours
classroom per week, for a total of about 10 hours instruction; is that right?

	A.  I believe that's right.

	Q.  Okay.  Other than that one course have you done anything to try to
develop skills within the last three years for you to be employed?

	A.  No.

	. . . .

	Q.[Margaret's Counsel] All right.  Have you not done anything to develop
any work skills or go out and work since the time of the divorce just because
you thought you had a gravy train with this $1,100 from Mr. Carlin or - - 

	A.  Well, no, not at all.  The main reason I haven't sought work was
because of my mother, and since I've sought to put her in a nursing home I
haven't felt comfortable just leaving her all the time - - 

	Q.  Okay.

	A. - - for 8 or 10 hours a day.

	Q.  All right.

	A.   And - -

	Q.  If - - if your mother had not been with you at the time of the divorce to
the present do you feel that based upon your knowledge of your body and the
rheumatoid arthritis that you would have been physically able to go out and
work 40 hours, 8 hours a day, 5 days a week?

	A.  I don't - - I don't think so.  I haven't tried it, but I don't think so.  I can
handle part time all right, but I don't think I would be able to hold down a
full time 5 days a week for any - - for a whole year.

	After a careful review of the evidence, we find the trial court abused its discretion
in ruling that Margaret's spousal maintenance should continue.  The "guiding rules and
principles" in this case were the provisions of Section 8.054(b) which permitted the
continuance of spousal maintenance upon a finding that the obligee spouse is "unable to
support [] herself through appropriate employment because of an incapacitating physical
[] disability."  The evidence certainly indicates that at the time of the hearing Margaret
continued to suffer with the variety of maladies indicative of rheumatoid arthritis. 
However, an examination of all the evidence indicates that her condition was far from
"incapacitating."  She was able to drive, cook, clean, and do other household chores in
order to maintain her 3,800 square foot house.  To top it off, Margaret was still able to
provide "very adequate care" to her Alzheimer's-stricken mother.  It appears the trial court
overlooked the need for sufficient proof of this provision in Section 8.054.  
	Further support for our conclusion is indicated by Margaret's totally subjective
testimony that she did not "think" she could hold down full-time employment, although
she admitted she had not tried to do so and her only point of reference was to what she was
doing at her current part-time job with Ace Hardware.  By contrast, the record before us
contains quite a bit of objective facts testified to by Margaret as to what she is physically
able to accomplish in her daily life.  What Margaret testified she is physically able to do
indicates that her arthritis has placed few physical limitations on her life.  Lastly, because
Margaret admittedly never attempted to seek employment that would provide for her
"minimum reasonable needs," (6) a finding that Margaret proved she was unable to support
herself at appropriate employment because of her arthritis would be unreasonable.  
	Clearly, Margaret's ankles, shoulders, and neck are impaired to some degree.  It
simply does not follow, however, that because her job-related activities at Ace Hardware
would possibly present difficulties for her if the job were for a full eight-hour workday,
Margaret has conclusively established that she continues "to be unable to support herself
at appropriate employment."  Because she fully admits that she has done nothing to seek
employment or make any inquiries related thereto, the "link" between what evidence there
is as to Margaret's physical limitations due to the arthritis and her being unable to support
herself through appropriate employment lacks the probative force necessary to prove the
statutory conditions for continuing the spousal maintenance.    
	Finally, we find very probative the two portions of Margaret's testimony where she,
quite candidly, admits that the main reason for her not seeking employment was because
of the need to provide continued care for her mother.  We do not take Margaret's sense
of duty to her mother lightly.  Nevertheless, we must also do justice to Kenneth's right to
have the provisions of Chapter 8 applied as the legislature intended.  The legislature set-out
the purpose of Chapter 8 as follows:
	   SECTION 10.01.  PURPOSE.  (a) It is the intent of the legislature in this
article to provide spousal maintenance primarily as a temporary rehabilitative
measure for a divorced spouse whose ability for self-support is lacking or
had deteriorated through the passage of time while the spouse was engaged
in homemaking activities and whose capital assets are insufficient to provide
support.

See Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 10.01(a), 1995 Tex. Gen. Laws
3543, 3577.  
	It is an abuse of discretion for a trial court to rule without supporting evidence.
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).  In the instant case, while there is
"some" evidence of Margaret's inability to support herself at appropriate employment
because of her disability, the great weight and preponderance of the trial evidence is
against such a finding.  We have detailed all relevant evidence from the record, as set out
above, in reaching this conclusion.  See Rose v. Doctors Hospital, 801 S.W.2d 841, 848
(Tex. 1990).  We therefore reverse the trial court's ruling of November 13, 2001,
(granting extension of spousal maintenance) and remand this cause for further proceedings
consistent with the analyses and holding made in this opinion.
	REVERSED AND REMANDED.


						_______________________________
							RONALD L. WALKER
								Chief Justice

Submitted on October 17, 2002
Opinion Delivered December 19, 2002
Publish
Before Walker, C.J., Burgess and Gaultney, JJ.
1. All subsequent statutory references are to provisions contained in the Texas Family
Code currently in effect unless otherwise noted.
2. Margaret's trial counsel briefly testified as to attorney's fees but this testimony is
not pertinent to the instant appeal.
3. See Amos v. Amos, 79 S.W.3d 747 (Tex. App.--Corpus Christi 2002, no pet.);
O'Carolan v. Hopper, 71 S.W.3d 529 (Tex. App.--Austin 2002, no pet.); Pickens v.
Pickens, 62 S.W.3d 212 (Tex. App.--Dallas 2001, pet. denied); Lopez v. Lopez, 55
S.W.3d 194 (Tex. App.--Corpus Christi 2001, no pet.); In re Hale, 975 S.W.2d 694 (Tex.
App.--Texarkana 1998, no pet.); and DuBois v. DuBois, 956 S.W.2d 607 (Tex. App.--Tyler 1997, no writ).
4. Although Margaret's trial counsel briefly testified as to attorney's fees his
testimony is not pertinent to this appeal.
5. No further testimony explains or elaborates on Margaret's neck condition which
did not permit her to "look down."
6. See Section 8.054(a)(2).  
