      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00010-CV



                                  Colleen Dickinson, Appellant

                                                  v.

                                 Bruce Dana Hardesty, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
      NO. D-1-FM-13-006978, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Colleen Dickinson contends that the trial court erred by not awarding her spousal

maintenance from Bruce Dana Hardesty. We will affirm the judgment.

                We review the trial court’s decision on whether to award spousal maintenance under

an abuse of discretion standard. Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex. App.—Dallas 2011,

no pet.). The trial court abuses its discretion when it acts arbitrarily or unreasonably, or without

any reference to guiding rules and principles. See E.I. du Pont de Nemours & Co. v. Robinson,

923 S.W.2d 549, 558 (Tex. 1995). The trial court does not abuse its discretion if there is some

evidence of a substantive and probative character to support the decision. Tellez, 345 S.W.3d at 691.

An award of spousal maintenance is discretionary for the court if the spouse meets threshold criteria,

including those under which Dickinson sought maintenance:1


       1
           There was no written pleading for maintenance, but the parties plainly tried the issue by
consent.
       [T]he court may order maintenance for either spouse only if the spouse seeking
       maintenance will lack sufficient property, including the spouse’s separate property,
       on dissolution of the marriage to provide for the spouse’s minimum reasonable needs
       and:

       ...

                (2) the spouse seeking maintenance:
                        (A) is unable to earn sufficient income to provide for the
                        spouse’s minimum reasonable needs because of an
                        incapacitating physical or mental disability;


Tex. Fam. Code § 8.051 (emphases added).

                Hardesty testified that Dickinson was receiving disability payments before they

married in 2010. Dickinson testified that she had lupus hypertension arrhythmia and that she

was able to work when they married because her condition was then under control. Shortly after

they married, Hardesty was diagnosed with throat cancer.2 Dickinson testified that she quit working

during the marriage to take care of her parents and then Hardesty when he was diagnosed with

cancer. Hardesty testified that Dickinson and her brother tried to manage his veterinary practice.

He testified about his income, including investments and other income, and his impending tax debt

due to his brother-in-law’s alleged underreporting of Hardesty’s income in previous years. Hardesty

also had issues with the Internal Revenue Service from pre-marriage conduct.

                Hardesty testified that Dickinson was seeking work when they separated near the

end of 2013, but Dickinson testified that at the time of trial her doctors would not let her work. She

said that she was suffering night sweats, improper sleep, and swollen ankles and wrists. Dickinson

testified that she received $814 per month in social-security payments and food stamps and, based


       2
           He was in remission at trial.

                                                  2
on her income, lived in Section 8 housing for $142 per month. She asserted that she quit working

to take care of Hardesty when he had cancer in exchange for his promise that he would take care of

her when he regained his health. She testified that he did not pay her for her work at the veterinary

clinic and hid farm income from her. She also claimed $100,000 in damages due to his alleged

assault and battery to compensate her for counseling and medications. There was evidence that

the maximum spousal maintenance award for Dickinson based on Hardesty’s income was $1,667

per month. Dickinson testified that if the court awarded her spousal maintenance she might lose

some or all of her governmental supplement payments totaling $1,482 per month.

               The trial court granted the divorce, denied the assault and fraud claims, divided

the assets (granting Dickinson the larger share of the community portion of Hardesty’s retirement

accounts), and denied spousal maintenance. No findings of fact or conclusions of law were filed.

               The trial court heard the evidence and exercised its discretion. Dickinson indicates

that the trial court improperly considered the existence of her disability when the marriage began and

the three-year duration of the marriage as a reason not to find Hardesty liable to provide her spousal

maintenance. Although those issues were discussed during closing argument, the trial court did

not state them as a basis for the final decision either orally or in the written divorce decree. The

court may have decided that the larger share of community property, combined with her subsidies

and potential for work income, provided enough for Dickinson to provide for her minimum

reasonable needs. Dickinson has not shown that the trial court acted unreasonably, arbitrarily, or

without reference to guiding rules and principles. We find no abuse of discretion in the denial of

spousal maintenance payments. See Tellez, 345 S.W.3d at 691; see also Robinson, 923 S.W.2d

at 558.

                                                  3
              We affirm the divorce decree.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: May 25, 2016




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