                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                              No. 04-13-00325-CV

                                        Ruben Guadalupe GALINDO,
                                                Appellant

                                                     v.
                                                  Tanya Sue
                                            Tonya Sue GALINDO,
                                                   Appellee

                        From the 37th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2011-CI-20303
                               Honorable Karen H. Pozza, Judge Presiding

Opinion by:        Marialyn Barnard, Justice

Sitting:           Marialyn Barnard, Justice
                   Rebeca C. Martinez, Justice
                   Patricia O. Alvarez, Justice

Delivered and Filed: April 9, 2014

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

           This is an appeal from a final divorce decree and a temporary order pending appeal.

Appellant Ruben Guadalupe Galindo (“Ruben”) raises three issues, contending the trial court erred

by: (1) ordering Ruben to pay spousal maintenance to appellee Tonya Sue Galindo (“Tonya”); 1

(2) ordering Ruben to pay Tonya’s trial attorney’s fees; and (3) assessing attorney’s fees against

Ruben in the temporary order. 2 We affirm the trial court’s judgment as to the final decree of



1
    Tonya did not file an appellee’s brief.
2
    The temporary order for attorney’s fees was granted by Judge Michael Mery.
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divorce. However, we reverse that portion of the trial court’s temporary order awarding Tonya

appellate attorney’s fees, but affirm the remainder of the temporary order.

                                          BACKGROUND

       Ruben and Tonya were married in 1993. They had one child prior to marriage, and two

children during the marriage – one of whom is a minor. Although Ruben has a career in law

enforcement, Tonya has a ninth grade education and has not worked outside the home since 1996.

Tonya focused on raising the couple’s children rather than working outside the home.

Additionally, Tonya’s ability to work outside the home has been impeded by a physical ailment.

       Tonya began receiving treatment in the late 1990s for what was later diagnosed as a

“neuromuscular disorder of the intestinal tract.”      Tonya’s disorder has resulted in multiple

hospitalizations for the sudden onset of symptoms, including: severe abdominal pain, vomiting,

uncontrolled bowel movements, and immobility. Because of the unpredictable nature and severity

of her symptoms, Tonya’s ability to sustain outside employment is uncertain. However, Tonya

has not filed for social security disability, despite a treating physician’s recommendation that she

do so; she does not consider herself disabled.

       After dealing with increasingly strained marital relations that resulted in multiple police

dispatches to the couple’s home, the Galindos separated in 2011. Ruben filed for divorce shortly

thereafter citing insupportability of the marriage, which Tonya countered with a petition for

divorce citing cruel treatment as an additional ground for divorce. Although the Galindos agreed

to terms for the possession of their minor child, both sought a disproportionate award of the

community estate. Tonya also sought spousal maintenance.

       After a bench trial, the trial court divided most of the community estate evenly between

Ruben and Tonya. However, the trial court found Tonya disabled due to her intestinal disorder



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and ordered Ruben to pay her spousal maintenance. The trial court also ordered Ruben to pay

Tonya’s trial attorney’s fees. Ruben perfected this appeal.

       After Ruben perfected this appeal, Tonya filed a motion for temporary orders pending

appeal seeking various forms of interim relief, including payment of her appellate attorney’s fees

by Ruben. See TEX. FAM. CODE ANN. § 6.709. The trial court granted Tonya’s requested relief

and, among other things, ordered Ruben to pay her appellate attorney $1,000.00 in attorney’s fees

and expenses as well as $5,000.00 in fees in the event Tonya prevails on the appeal.

                                             ANALYSIS

       As mentioned above, Ruben raises three issues on appeal, contending the trial court erred

in ordering Ruben to pay: (1) spousal maintenance; (2) Tonya’s trial attorney’s fees; and (3)

Tonya’s appellate attorney’s fees.

                                      Spousal Maintenance

       Ruben contends the trial court abused its discretion when it ordered him to pay Tonya

spousal maintenance after finding she “has an ongoing incapacitating physical disability.”

Specifically, Ruben contends the trial court erred because there is insufficient evidence that Tonya

is disabled. He also argues the award is improperly indefinite with regard to how long the

obligation is to continue.

       We review the trial court’s award of spousal maintenance for an abuse of discretion. Diaz

v. Diaz, 350 S.W.3d 251, 254 (Tex. App.—San Antonio 2011, pet. denied). The legal and factual

sufficiency of the evidence are relevant factors in assessing whether the trial court abused its

discretion, but are not independent grounds for asserting error. Id. Accordingly, the trial court

does not abuse its discretion if there is some evidence of a substantive and probative character to

support the decision or if reasonable minds could differ as to the result. Id.



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Evidence of Disability

       Ruben’s first contention is that the award of spousal maintenance is improper because there

is insufficient evidence of Tonya’s disability. We disagree. The Texas Family Code allows an

award of spousal maintenance where the spouse seeking maintenance “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 ANN. § 8.051(2)(A). As noted by other Texas

courts, there is “no authority directly addressing the quantum of evidence required to prove

incapacity in a spousal maintenance action.” Pickens v. Pickens, 62 S.W.3d 212, 215 (Tex. App.—

Dallas 2001, pet. denied); see also Smith v. Smith, 115 S.W.3d 303, 309 (Tex. App.—Corpus

Christi 2003, no pet.). Without a statutory requirement to the contrary, a fact finder may

reasonably infer an individual’s incapacity from circumstantial evidence or the competent

testimony of a lay witness. Pickens, 62 S.W.3d at 215 (citing Reina v. Gen. Accident Fire & Life

Assur. Corp., 611 S.W.2d 415, 417 (Tex. 1981); Smith, 115 S.W.3d at 309. The extent and

duration of incapacity is an issue that can be proven by lay opinion and does not require medical

testimony. See Pickens, 62 S.W.3d at 216 (citing Reina, 611 S.W.2d at 417).

       Here, Tonya’s testimony supports the trial court’s finding of incapacity. She testified she

was diagnosed with a “neuromuscular disorder of the intestinal track” in the year 2000. According

to Tonya, the disorder causes her to “get severe pain in the upper gut area, and it is so bad that I

just start vomiting and going to the bathroom and can’t move . . . I just have to go to the hospital.”

Along with the sudden onset symptoms, Tonya testified she is always in at least moderate pain and

suffers from anxiety. To treat her medical and psychological issues, she takes anxiety medication,

ibuprofen, a muscle relaxer, and receives a “bilateral splanchnic nerve block,” which is an injection

used to treat her pain. According to Tonya, the nerve block alone impairs her for “[s]ometimes



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two, three days, depend[ing] on how the nerve block went, how much medicine they had to give”

her.

         Although a small portion of Tonya’s testimony belied the existence of a “disability,” 3 this

testimony, when viewed in context, merely reflected Tonya’s refusal to be labeled as “disabled.”

Because a fact finder could reasonably infer Tonya’s incapacity from this evidence, we hold the

substance of her testimony is such that she qualifies for spousal maintenance under section

8.051(2)(A). Accordingly, we overrule this portion of Ruben’s first issue and hold there is

sufficient evidence to support a finding of disability such that the trial court did not abuse its

discretion in finding Tonya “has an ongoing incapacitating physical disability.” See Diaz, 350

S.W.3d at 254.

Indefinite Award of Maintenance

         Ruben next contends the trial court erred by awarding Tonya spousal maintenance for an

indefinite period of time. As noted above, the trial court awarded Tonya spousal maintenance

under Section 8.051(2)(A) based on her incapacitating, physical disability. See TEX. FAM. CODE

ANN. § 8.051(2)(A). An indefinite award of spousal maintenance under section 8.051(2)(A) is

permitted under section 8.054(b). See TEX. FAM. CODE ANN. § 8.054(b) (“The court may order

maintenance for a spouse to whom Section 8.051(2)(A) or (C) applies for as long as the spouse

continues to satisfy the eligibility criteria prescribed by the applicable provision.”). Accordingly,

we overrule this portion of the first issue.




3
  At various points in her testimony, Tonya asserted her belief that she is able to sustain employment and is not what
she considers “disabled” – despite her physical issues. Tonya clarifies she is not disabled because “[t]o me disabled,
I look at it is somebody that’s handicapped or in a wheelchair or something like that, as to where . . . I look at it that I
see somebody else needs disability more than myself, because when I’m not sick, I’m fine.”

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                                       Trial Attorney’s Fees

       Ruben next contends the trial court erred by awarding Tonya trial attorney’s fees because

the award gave her a disproportionate share of the marital estate. We disagree.

       A trial court may apportion attorney’s fees as part of the just and right division of property

in a divorce action. Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011,

no pet.); Phillips v. Phillips, 296 S.W.3d 656, 671 (Tex. App.—El Paso 2009, pet denied). We

review the trial court’s division of the estate for an abuse of discretion. See Monroe v. Monroe,

358 S.W.3d 711, 719 (Tex. App.—San Antonio 2011, pet. denied).

       Because it is presumed the trial court properly exercised its discretion in dividing the

community estate, it must be shown from the record that the division was so disproportionate it

constituted an abuse of discretion. Id. We consider every reasonable presumption in favor of the

trial court’s proper exercise of discretion in dividing the community estate. Id. In using its

discretion to make a just and right division of the property, the trial court may consider the

following factors: (1) the spouses’ capacities and abilities; (2) benefits which the party not at fault

would have derived from continuation of the marriage; (3) education; (4) business opportunities;

(5) relative physical conditions; (6) relative financial condition and obligations; (7) disparity of

ages; (8) size of separate estates; (9) the nature of the property; and (10) disparity in the spouses’

income or earning capacity. Id. at 719–20; Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

       Here, it is undisputed that Tonya has a ninth grade education and has not worked outside

the home since 1996. Further, the trial court found Tonya is sufficiently disabled to receive spousal

maintenance under section 8.051(2)(A). Given the presumption in favor of the trial court’s

discretion and Tonya’s education level, employment history, and disability, when compared to

Ruben’s, we hold the trial court did not abuse its discretion in awarding Tonya attorney’s fees as



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part of its just and right division of property. See Monroe, 358 S.W.3d at 719. Accordingly, we

overrule Ruben’s second issue.

                               Temporary Orders Pending Appeal

       In his final issue, Ruben contends the trial court improperly awarded Tonya appellate

attorney’s fees in the temporary order pending appeal because there was insufficient evidence to

support the award. We agree.

       A trial court is authorized to award appellate attorney’s fees when it is necessary and

equitable to protect the parties or preserve the property during the appeal. See In re Garza, 153

S.W.3d 97, 101 (Tex. App.—San Antonio 2004, no pet.); TEX. FAM. CODE ANN. § 6.709(a)(2).

“As long as there is a credible showing of the need for [appellate] attorney’s fees in the amount

requested and the ability of the opposing spouse to meet that need, the trial court has authority by

temporary orders to require payment of such fees.” Halleman v. Halleman, 379 S.W.3d 443, 454

(Tex. App.—Fort Worth 2012, no pet.) (quoting Herschberg v. Herschberg, 994 S.W.2d 273, 279

(Tex. App.—Corpus Christi 1999, no pet.)). Moreover, the party seeking to recover attorney’s

fees has the burden of proving those fees are “reasonable and necessary.” Doncaster v. Hernaiz,

161 S.W.3d 594, 606 (Tex. App.—San Antonio 2005, no pet.). Although the award of attorney’s

fees is reviewed for an abuse of discretion, the reasonableness and necessity of the fees is reviewed

for sufficiency of the evidence. Id. (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).

       Here, there is insufficient evidence to support the reasonableness of the appellate attorney’s

fees awarded to Tonya. Tonya’s motion did not request a specific amount of fees, and at the

hearing on the motion for temporary orders there was neither testimony nor an affidavit to support

the reasonableness of the fees awarded. Rather, it appears the trial court awarded Tonya’s counsel

the challenged amount sua sponte without proof of the reasonableness of the fees. Accordingly,



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we hold there is insufficient evidence to support the award of appellate attorney’s fees in the

temporary order. We therefore sustain Ruben’s third issue.

                                         CONCLUSION

       Based on the foregoing, we overrule Ruben’s first two issues, but sustain the third issue.

Accordingly we affirm the trial court’s judgment granting divorce and reverse the portion of the

trial court’s temporary order awarding Tonya appellate attorney’s fees.


                                                Marialyn Barnard, Justice




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