Chief Justice                                                                                                     Clerk
James T. Worthen                                                                                                  Cathy S.Lusk

                                    Twelfth Court of Appeals
Justices                                                                                                          Chief Staff Attorney
Sam Griffith                                                                                                      Margaret Hussey
Diane DeVasto




           Wednesday, November 30, 2005


           Mr. J. Kevin Dutton                                                         Mr. Scott W. Stover
           Tonahill, Hile, Jacobellis, Dutton & Brag                                   950 N Wheeler
           243 N. Austin                                                               Po Box 480
           Suite 1                                                                     Jasper, TX 75951
           Jasper, TX 75951

           Mr. William S. Morian Jr.
           P.O. Box 480
           Jasper, TX 75951

           RE:       Case Number:                      12-04-00128-CV
                     Trial Court Case Number:          3321


           Style: Gary B. Stafford
                     v.

                     Rosemary D. Stafford

           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK



           By:     KdjUflA, M.fl:
                 Katrina McClenny, Chief Deputy Clerk

           CC:            Hon. Joe B. Golden Jr.
                          Hon. Olen Underwood
                          Ms. Tanya Walker




                 1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
   ServingAnderson, Angelina, Cherokee, Gregg,Henderson, Houston,Nacogdoches,Rains,Rusk, Sabine,San Augustine, Shelby, Smith, Trinity,
                                                  Upshur, VanZandt and Wood Counties
                                                      www.12thcoa.courts.state.tx.us
                                NO. 12-04-00128-CV


                       IN THE COURT OF APPEALS


            TWELFTH COURT OF APPEALS DISTRICT


                                   TYLER, TEXAS
GARY B. STAFFORD,                                §   APPEAL FROM THE FIRST
APPELLANT


V.                                               §   JUDICIAL DISTRICT COURT OF



ROSEMARYD. STAFFORD,                             §   SABINE COUNTY, TEXAS
APPELLEE
                                  MEMORANDUM OPINION

        Gary B. Stafford appeals the trial court's final decree of divorce. In two issues, Gary
challenges the trial court's division of community property and award of spousal maintenance to his
ex-wife, Rosemary D. Stafford. We affirm.


                                         Background

        Gary and Rosemary were married for twelve years but had no children. They owned a long
haul trucking business in which Gary was "on the road" most days each month. While Gary drove
the truck, Rosemary kept their house, which was situated in a remote area several miles from any
neighbors. The sole source of heat for the house was provided by a wood burning stove. There were
times when Rosemary had to rely on members of her church to bring her wood. There was some
evidence that Gary had physically assaulted Rosemary in the past although he denied it. Further,
there was evidence that Rosemary and her daughter did not always get along well, and Gary
threatened to kill Rosemary's daughter if she came to their house. In all, Rosemary was somewhat
isolated.

        Gary's gross income exceeded $100,000 in 2003, but his net income was approximately
$33,000. Consequently, the Staffords suffered financial problems and Gary's father took over the
management of their finances. Gary's father gave fifty dollars to Rosemaryeach week. She was to
use this money for all her needs, including maintenance of the household and vehicle, food, and gas.
For three to four years, Rosemary was required to plead her case to her father-in-law if she needed
more than fifty dollars in any given week. At times, Rosemary relied on people from her church to
bring her food, give her a ride, or provide other necessities.
        Since 1993, Rosemary has received monthly social security disability checks because she has
epilepsy and seizures. She now has fibromyalgia and suffers from panic attacks and anxiety. She
is unable to work. However, Medicare pays for some of her medical needs, including prescriptions.
After twelve years of marriage, Rosemary left Gary and filed for divorce. Gary suggested that
Rosemary was having an extramarital affair, but no evidence was presented in support of the
accusation.

        On February 12, 2004, the trial court heard the Staffords' divorce case. In the final decree,
Gary was awarded the Freightliner truck, Transcraft trailer, Ford pickup, Oldsmobile Cutlass, two
catamaran boats, tools, weightlifting equipment, an insurance check in the amount of $5,716.95 for
damage to the couple's Chevrolet Blazer, a television, a desk, guns, and all clothing, jewelry, and
personal effects in his possession. Additionally, Gary was ordered to pay any debts associated with
these possessions, along with all amounts past due on the real property awarded to Rosemary. The
trial court also ordered that Gary pay the federal income tax liability owed. Finally, the court ordered
Gary to pay Rosemary $368.00 per month for three years as spousal maintenance.
       To Rosemary, the trial court awarded the house, most of the appliances and furnishings, an
insurance check in the amount of $1,800.00 for items stolen from their house, the Chevrolet Blazer,
and all clothing, jewelry, and personal effects in her possession. Rosemary was ordered to pay the
mortgage on the house.
       This appeal followed.


          Disproportionate Division of Property and Spousal Maintenance

       In two issues, Gary contends the trial court erred in awarding a disproportionate share of their
community property to Rosemary and in awarding spousal maintenance to Rosemary.
Standard of Review

       We review a trial judge's division of property and decision to award spousal maintenance
under an abuse of discretion standard. See Murffv. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981)
(property division); Smith v. Smith, 115 S.W.3d 303, 305 (Tex. App.-Corpus Christi 2003, no pet.)
(spousal maintenance). A trial judge abuses his discretion when he 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). A trial judge does not abuse his 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.     In the Matter of Bertram, 981 S.W.2d 820, 826-27 (Tex.
App.-Texarkana 1998, no pet.). Absent a clear abuse of discretion, we do not disturb a trial judge's
division of community property or decision to award spousal maintenance. Murff, 615 S.W.2d at
698; Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980).
Applicable Law and Discussion - Property Division
        In a divorce decree, the judge "shall order a division of the estate of the parties in a manner
that the court deems just and right, having due regard for the rights of each party and any children
of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 1998). Thus, trial judges have wide
latitude and discretion in dividing community property. Schlueter v. Schlueter, 975 S.W.2d 584,
589 (Tex. 1998); Murff, 615 S.W.2d at 700. When dividing community property, the trial judge
may consider many factors, including each party's earning capacity, abilities, education, business
opportunities,physical condition, financialcondition,age, and size of separateestates, as well as any
future needs for support, expected inheritance, custodyof any children, reimbursements, gifts to a
spouse during marriage, excessive community property gifts to others, and wasting of community
assets. Murff, 615 S.W.2d at 699.
       Here, the record shows that Gary's earning capacity is much greater than Rosemary's because
Rosemary is disabled and unable to work. Gary presented no evidence showing any medical or
physical conditions that would prevent him from continuing to earn a living in his trucking business.
Gary's 2003 net income was $33,000. Evidence was presented showing that Gary had a place to
live; namely, in the garage apartment at his father's house. There was some evidence that Gary was
physically abusive to Rosemary. Further, there was some evidence that Gary emotionally abused
Rosemary by verbally abusing her and isolating her from her family and friends. Evidence was
presented that Gary sometimes failed to provide sufficient firewood for their home's only source of
heat, a wood burning stove, while he was away working.
        The record also shows that Rosemary is in poor physical condition, suffering from epilepsy,
seizures, fibromyalgia, anxiety, and panic attacks. She has been unable to work for more than ten
years. She provided homemaking services to Gary during their marriage.                Rosemary receives
$552.00 per month in social security disability. Medicaid provides for Rosemary's prescriptions and
certain other medical expenses.
        After a hearing, the trial judge granted the divorce and divided the community assets and
liabilities. The trial judge awarded the house and the corresponding mortgage to Rosemary. The fair
market value of the house is $50,000.00 while the debt against it is $29,000.00. Rosemary also
received an $1,800.00 insurance check for property stolen when the couple's house was burglarized
and the 1995 Chevrolet Blazer. Based on the undisputed evidence presented, the total value of the
couple's equity in the property awarded to Rosemary was approximately $28,000.00.
        The trial court awarded the trucking company assets to Gary; namely, a Freightliner tractor
truck, a Transcraft trailer, various tarps, tie-downs, and tools. The court also ordered Gary to pay
any amounts owed on these items. The parties disputed the fair market value of the Freightliner
tractor truck, with Rosemary estimating its value to be $50,000.00 and Gary estimating its value to
be $10,000.00. The debt owed on the tractor truck was $28,000.00. Further, Rosemary estimated
the Transcraft trailer's value to be $25,000.00 and Gary estimated its value to be $8,000.00. No debt
was owed on the trailer. The parties also disagreed on the value of the tarps and associated trucking
tools, with Rosemary estimating their fair market value to be $2,500.00 and Gary estimating their
value to be around $800.00. No debt was owed on these trucking accessories. Neither party
presented any evidence to support their assertion of the property values. Gary was awarded his
separate property - a 1984 Ford truck, a 1971 Olds Cutlass, and two catamaran boats. The trial judge
ordered Gary to pay the debt owed to the Internal Revenue Service, estimated at $39,000.00.
        Although Gary contends the trial judge abused his discretion in making a "grossly unequal
division of the community estate," we disagree. The trial court did not file findings of fact and
conclusions of law that reflect the values it assigned to each asset or liability or the total value of the
community property. The trial court order dividing the property clearly disposes of the assets and
liabilities, but makes no effort to value each item. Neither party presented evidence in support of
their valuation of the disputed property. Without sources of the values asserted, we are unable to
adequately assess the values of assets. The appellant bears the burden of demonstrating an abuse
of discretion, but has failed to provide the information necessary to examine his claim. See Siefkas
v. Siefkas, 902 S.W.2d 72, 75 (Tex. App.-El Paso 1995, no pet.). Further, the trial judge was
entitled to consider Gary's abilities, business opportunities, future earning capacity, and good
physical condition, as well as Rosemary's poor health, disability, and lack of any substantive future
earning capacity. After reviewing the record, we cannot conclude that the trial court abused its
discretion in dividing the community estate. Accordingly, we overrule Gary's first issue.
Applicable Law and Discussion - Spousal Maintenance
        Section 8.051 of the family code provides that a judge may order spousal maintenance if the
duration of the marriage was ten years or longer, the spouse seeking maintenance lacks sufficient
property, including property distributed to the spouse under the family code, to provide for the
spouse's minimum reasonable needs (as limited by section 8.053), and the spouse seeking
maintenance is unable to support herself through appropriate employment because of an
incapacitating physical disability. Tex. Fam. Code Ann. § 8.051(2) (Vernon Supp. 2005). Thus,
to be eligible for spousal maintenance, the spouse seeking support must first show that she clearly
lacks property and earning ability adequate to provide for her reasonable needs. Alexander v.
Alexander, 982 S.W.2d 116, 119 (Tex. App.-Houston [1st Dist.] 1998, no pet.).
       After determining a spouse is eligible for maintenance, the judge must then determine the
nature, amount, duration, and manner of period payments by considering all relevant factors,
including, but not limited to:

       (1) the financial resources of the spouse seeking maintenance, including the community and separate
       property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's
       ability to meet the spouse's needs independently;

       (2) the education and employment skills of the spouses, the time necessary to acquire sufficient
       education or training to enable the spouse seeking maintenance to find appropriate employment, the
       availability of that education or training, and the feasibility of that education or training;

       (3) the duration of the marriage;

       (4) the age, employment history, earning ability, and physical and emotional condition of the spouse
       seeking maintenance;
        (5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs
        and to provide periodic child support payments, if applicable, while meeting the personal needs of the
        spouse seeking maintenance;

       (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment,
       or fraudulent disposition of community property, joint tenancy, or other property held in common;

       (7) the comparative financial resources of the spouses, including medical, retirement, insurance, or
       other benefits, and the separate property of each spouse;

       (8) the contribution by one spouse to the education, training, or increased earning power of the other
       spouse;


       (9) the property brought to the marriage by either spouse;

       (10) the contribution of a spouse as homemaker;

       (11) marital misconduct of the spouse seeking maintenance; and

       (12) the efforts of the spouse seeking maintenance to pursue available employment counseling as
       provided by Chapter 304, Labor Code.


Tex. Fam. Code Ann. § 8.052 (Vernon Supp. 2005).
       Although Gary contends the trial judge abused his discretion in ordering spousal
maintenance, we cannot agree. Rosemary meets the threshold requirements to request spousal
maintenance. See TEX. Fam. Code Ann. § 8.051(2). The minimum reasonable needs for a
particular individual or family is a fact-specific determination that must be made by on a case-by-
case basis. SeeIn re MarriageofHale, 975 S.W.2d 694,698 (Tex. App- Texarkana 1998,no pet.).
The record contains ample evidence of Gary's abilities and business opportunities. Based on this
evidence, the judge could conclude Gary's potential for future earning capacity was strong.
Additionally, thejudge could considerGary's goodphysicalconditionascontrasted withRosemary's
poor health, disability, and lack of any substantive future earning capacity. Although she received
monthly social security disability benefits in the amount of $552.00, Rosemary's monthly expenses
for the mortgage, electricity, phone, insurance, food, and fuel were estimated to be $1,030.00,
leaving a $478.00 deficit. The trial judge ordered spousal maintenance for three years in the amount
of $368.00 per month. After reviewing the record, we cannot conclude the judge abused his
discretion in ordering spousal maintenance. Accordingly, we overrule Gary's second issue.
                                                   Disposition

         Having overruled both of Gary's issues, we affirm the trial court's judgment.




                                                                 JAMES T. WORTHEN
                                                                        Chief Justice




Opinion delivered November 30, 2005.
Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.




                                                    (PUBLISH)
                                COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT


                                        NOVEMBER 30, 2005


                                      NO. 12-04-00128-CV



                                        GARY B. STAFFORD,
                                                 Appellant
                                                     V.

                                   ROSEMARY D. STAFFORD,
                                                 Appellee

                            Appeal from the First Judicial District Court
                            of Sabine County, Texas. (Tr.Ct.No. 3321)

                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is the opinion of this Court that there was no error in the judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below Be in All Things Affirmed and that all costs of this appeal are hereby

adjudged against the appellant, Gary B. Stafford, for which execution may issue, and that this

decision be certified to the court below for observance.


                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
