                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-19-00198-CV

                      ODELIA LAURA CAUDILLO, APPELLANT

                                           V.

                           DANIEL CAUDILLO, APPELLEE

                         On Appeal from the 140th District Court
                                  Lubbock County, Texas
            Trial Court No. 2015-517,163; Honorable Jim Bob Darnell, Presiding

                                      April 24, 2020

                            MEMORANDUM OPINION
                     Before QUINN, C.J., and PIRTLE and DOSS, JJ.


      Daniel Caudillo and Odelia Laura Caudillo were divorced by a Final Decree of

Divorce signed April 24, 2019. As part of the decree, Daniel was ordered to pay spousal

maintenance in the amount of $400 per month, with the first payment being due

retroactively on November 1, 2018, and each subsequent payment being due on the first

day of each consecutive month until the earliest of one of several listed events occurred.

Odelia argues the trial court abused its discretion by (1) changing the start date and

duration of the court-ordered spousal maintenance and (2) determining she was eligible
for spousal maintenance under section 8.054(a)(1)(C) instead of section 8.054(a)(2)(A)

of the Texas Family Code. For the reasons that follow, we will affirm the divorce decree

of the trial court.


       BACKGROUND

       Daniel and Odelia married in 1977 and separated in 2015. On August 24, 2015,

Daniel filed for divorce. Odelia counter-petitioned, requesting temporary spousal support

and post-divorce spousal maintenance. A hearing regarding temporary orders was held

before an associate judge. At the conclusion of that hearing, the associate judge ordered

Daniel to pay to Odelia $700 per month in temporary spousal support. Daniel appealed

that ruling to the district court. Following a full de novo hearing, the judge ordered Daniel

to pay to Odelia $400 per month, beginning on November 15, 2015. Daniel did not begin

paying at that time and Odelia filed a motion to enforce the order. Daniel began paying

the temporary spousal support in April 2016.


       On October 15, 2018, the court held a contested hearing concerning the

disposition of property in relation to Daniel and Odelia’s divorce. During that hearing,

both parties testified. Odelia testified she was disabled. She told the court it affected her

everyday life and her ability to obtain employment. She testified she began receiving

social security disability benefits the previous year. She also testified “[t]here’s no way I

can go back and get a job . . . [b]ecause I’m disabled. I got chronic arthritis, osteoarthritis.

I can’t do anything physical that much.” She said, “I can’t lift, crawl, climb stairs, stoop,

bend or—everything.” She testified that if she tries to do these things, it is “painful, very

painful.” Odelia also testified about her income from her disability benefits, her retirement,

as well as her customary monthly expenses. She answered “No” when asked whether

                                               2
she would be able to pay for all of the expenses without Daniel’s spousal support. She

told the court her previous employment had been as a teacher but that she had not

worked in that capacity for many years.


       Daniel answered affirmatively when asked whether he was aware that Odelia was

disabled. He also stated that he knew the federal government had determined she was

unable to work because of her disability. With regard to spousal maintenance, he said

he “could live with what I’m giving her right now,” which was the $400 per month ordered

after the de novo temporary hearing.


       At the close of the hearing, the court asked for additional documentation and took

the matter under advisement. On October 18, 2018, the judge sent an email to counsel

with an attachment entitled “Property Division.” That document included the statement,

“Daniel will pay $400 per month beginning Nov[ember] 1, 2018.” The email was filed with

the court on October 29, 2018. Odelia’s attorney did not receive notice of the October 18

email until October 29 because the October 18 email was sent to an incorrect email

address.   Through email exchanges between October 18 and October 29, Daniel’s

attorney and the judge discussed the duration of the spousal maintenance award. The

judge responded to Daniel’s inquiry concerning the duration of the award, stating “10 yrs

but would start when payments started under temporary orders.”            Daniel had been

ordered to pay temporary spousal support beginning in November 2015. The Final

Decree of Divorce provided, however, that Daniel pay spousal maintenance in the amount

of $400 per month, “with the first payment being due on November 01, 2018, and a like

amount being due on the first (1st) day of each consecutive month thereafter until the

earliest of one of the following events: (1) seven (7) years; (2) death of either [Daniel] or

                                             3
[Odelia]; (3) remarriage of Odelia [ ]; or (4) further orders of the Court affecting the spousal

maintenance obligation . . . .”


       In early 2019, Odelia filed motions to enter judgment, requesting the trial court to

sign her proposed Final Decree of Divorce, which contained a spousal maintenance

provision that corresponded to the October 18 email, which included the memorandum

stating that “Daniel will pay $400 per month beginning November 01, 2018.” According

to Odelia’s interpretation, the email constituted a rendition of judgment providing for

indefinite spousal maintenance. In April 2019, the trial court held a hearing on Odelia’s

motion for judgment.       At that hearing, Daniel’s counsel acknowledged the email

conversation between himself and the judge but argued there was not a substantial

change in the court’s ruling; rather, it was a mere clarification. Odelia argued the email

ruling left open the question of whether the court found she was disabled and also

changed the beginning date of the spousal maintenance award. On April 24, 2019, the

trial court signed its Final Decree of Divorce, containing the spousal maintenance

provision described above.


       Thereafter, on June 7, 2019, the trial court filed findings of fact and conclusions of

law.    The conclusions of law included the above-stated provision for spousal

maintenance, with the exception of adding “or co-habitation” to the third contingency. The

trial court made no findings or conclusions that specifically contain the words “disabled”

or “disability” with reference to Odelia. Rather, the court made a more general finding

that Odelia “will lack the ability to earn sufficient income to provide for [her] minimum

reasonable needs on dissolution of the marriage.” The court further stated that, in

determining the nature, amount, duration, and manner of payment of spousal

                                               4
maintenance, it had considered the “future earning potential of the parties” and the “ability

of each party to meet their minimum reasonable needs.”


       ANALYSIS

       ISSUE ONE—MODIFICATION OF SPOUSAL MAINTENANCE ORDER

       In her first issue, Odelia contends the October 18 email and attached

memorandum constituted a rendition of judgment and the trial court erred because the

Final Decree contained a provision that changed the start date and duration of spousal

maintenance from that set forth in the email. We disagree.


       Judgment is rendered when the trial court officially announces its decision in open

court or by written memorandum filed with the clerk. S & A Rest. Corp. v. Leal, 892

S.W.2d 855, 857-58 (Tex. 1995) (citations omitted). The judge’s intention to render

judgment in the future cannot be a present rendition of judgment. Id. at 858 (citation

omitted). The rendition of judgment is “a present act, either by spoken word or signed

memorandum, which decides the issues upon which the ruling is made.” Id. (citation

omitted). A judgment is “‘signed’ when a judge actually signs a written order or decree;

and, it is ‘entered’ when the clerk performs the task of entering it in the minutes of the

court. Cook v. Cook, 243 S.W.3d 800, 804 (Tex. App.—Fort Worth 2007, no pet.).

Whether a trial court has rendered a judgment is a question of fact. Escobar v. Escobar,

711 S.W.2d 230, 232 (Tex. 1986).


       Citing Cook, 243 S.W.3d at 804, Odelia begins her argument by saying “[t]he entry

of judgment goes through three stages: rendition, signing, and entry.” Odelia argues the

judge rendered his ruling when he signed, dated, and filed the memorandum entitled


                                             5
“Property Division,” attached to his October 18 email which included the statement,

“Daniel will pay $400 per month beginning Nov[ember] 1, 2018.” Because she considers

this document to be the judgment rendered by the court, she contends the Final Decree

of Divorce later entered is incorrect because it contains different terms. We disagree.


       The October 18 email to which the “Property Division” memorandum was attached

stated as follows:

       Attached is a copy of property/debt division in Caudillo case. Since Daniel
       Caudillo filed divorce petition, Ben will prepare decree; provide copy to Terri
       and Megan for their review before e-filing. If anyone feels I left something
       out, let me know.


This language does not indicate the judge’s intent to render a final appealable order at

the time he sent the email. In fact, the judge invited changes by asking the parties to

notify him if he “left something out.” In the area of family law, this is a common practice,

where many of the “details” contained in a final decree of divorce are not orally

pronounced, and the trial judge often exercises discretion when fine-tuning his ruling prior

to formal rendition. Further, the mere filing of that email and memorandum did not alter

the judge’s intent or constitute the rendition of a ruling any more than the email itself did.

The language of the email still indicated an intent to render a ruling at a later date, after

the parties had reviewed the decree and had the opportunity to suggest changes or

additions to the judge.


       We also note Odelia’s argument that the judge changed his October 18 email

“decision” from an indefinite spousal maintenance award to one that was limited to a

period of seven years. Again, the mere fact that the email did not include the specific

term of payments did not mean that the trial judge had rendered a decision that the

                                              6
spousal maintenance payments would continue indefinitely. Similar to the other details

to be included in the final order, the term of payments was a detail that remained within

the discretion of the trial judge.


       As Odelia recognizes, a court may order maintenance to the spouse who is unable

to earn sufficient income to provide for his or her minimum reasonable needs due to a

physical or mental disability for as long as the spouse continues to satisfy the eligibility

criteria prescribed by the applicable provision. TEX. FAM. CODE ANN. § 8.054(b) (West

Supp. 2019). While Odelia seems to take from this statute that the district court was

required to order spousal maintenance for that entire period, the unambiguous language

of the statute is discretionary in nature, setting forth that the court “may” make such an

order. It does not say that the court “shall” or is otherwise mandated to order spousal

maintenance for the entire period of disability.


       Odelia also complains that the judge improperly took into account the spousal

support she received under the temporary orders when he reduced her spousal support

to a period of seven years in the Final Decree. As support for her argument, she lists the

factors set forth in section 8.052 of the Family Code, noting that none of them include

support received under temporary orders as that support is to assist with needs during

the pending suit. TEX. FAM. CODE ANN. § 8.052. Again, the language of section 8.052 is

informative here. The beginning of that provision provides “[a] court that determines that

a spouse is eligible to receive maintenance under this chapter shall determine the nature,

amount, duration, and manner of periodic payments by considering all relevant factors,

including. . . [eleven enumerated factors].” (Emphasis added). TEX. FAM. CODE ANN. §

8.052. The use of the word “including” indicates that a judge should consider the eleven

                                             7
factors set forth in section 8.052, but it does not preclude a judge from considering other

factors. The list is not exclusive. We thus do not find the trial court abused its discretion

here by considering factors, if it did, not specifically enumerated in section 8.052 of the

Family Code.


       Lastly, we address Odelia’s argument that the Final Decree of Divorce does not

conform to the October 29 email because the decree states Daniel is to pay spousal

maintenance for a period of seven years commencing November 1, 2018, whereas the

October 29 email itself did not specify any term of duration and the email chain regarding

clarification of the court’s order provided for “10 yrs but would start when payments started

under temporary orders.”          The de novo temporary orders provided that spousal

maintenance was to commence on November 15, 2015. Taking into consideration the

temporary spousal maintenance payments that had already accrued, the number of

spousal maintenance payments was the same. Either way, Daniel was obligated to make

the same spousal maintenance payment ($400 per month), for the same number of

months (November 2015 through November 2025).1 As such, we cannot find the district

court abused its discretion here either. Accordingly, we resolve Odelia’s first issue

against her.


       ISSUE TWO—ELIGIBILITY FOR SPOUSAL MAINTENANCE

       Via her second issue, Odelia contends the district court erred when it determined

the duration of her spousal maintenance under section 8.054(a)(1)(C) of the Texas Family



       1
            We acknowledge Odelia’s argument that Daniel did not actually pay the ordered temporary
spousal maintenance in November 2015. Odelia filed a Motion for Enforcement after Daniel failed to make
the payments. Daniel began making the payments on April 16, 2016. We do not find that the court abused
its discretion in declining to alter the spousal maintenance award time period based on those events.

                                                  8
Code, providing that a court may not order maintenance that remains in effect for more

than ten years after the date of the order, if the spouses were married for thirty years or

more, rather than section 8.054(a)(2)(A), which provides that the court shall limit the

duration of a maintenance order to the “shortest reasonable period that allows the spouse

seeking maintenance to earn sufficient income to provide for the spouse’s minimum

reasonable needs, unless the ability of the spouse to provide for the spouse’s minimum

reasonable needs is substantially or totally diminished because of: (A) physical or mental

disability of the spouse seeking maintenance.”            See TEX. FAM. CODE. ANN. §

8.054(a)(1)(C); § 8.054(a)(2)(A) (West Supp. 2019).


       We review the trial court’s decision to award spousal maintenance under an abuse

of discretion standard of review. Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.—San

Antonio 2011, pet. denied). See also In re Marriage of Boyd, No. 07-14-00211-CV, 2015

Tex. App. LEXIS 6452, at *4 (Tex. App.—Amarillo June 24, 2015, no pet.) (mem. op.)

(citations omitted). Absent a clear abuse of discretion, we will not disturb the trial court’s

decision to award spousal maintenance. Amos v. Amos, 79 S.W.3d 747, 749 (Tex.

App.—Corpus Christi 2002, no pet.). Under this standard of review, the proper inquiry is

whether the trial court’s assessment of spousal maintenance was arbitrary or

unreasonable. Garcia v. Garcia, 170 S.W.3d 644, 649 (Tex. App.—El Paso 2005, no

pet.) (citations omitted). Consequently, we must “determine whether, based on the

elicited evidence, the trial court made a reasonable decision. Stated inversely, we must

conclude that the trial court’s decision was neither arbitrary nor unreasonable.” Id.


       The trial court may exercise its discretion to award spousal maintenance only if the

party seeking maintenance meets specific statutory eligibility requirements. Roberts v.

                                              9
Roberts, 531 S.W.3d 224, 227-29 (Tex. App.—San Antonio 2017, pet. denied) (citing

Slicker v. Slicker, 464 S.W.3d 850, 859 (Tex. App.—Dallas 2015, no pet.)). Texas Family

Code section 8.051(2)(A) provides that “in a suit for dissolution of a marriage” the trial

court may order maintenance if the spouse seeking maintenance will lack sufficient

property, on dissolution of the marriage, to provide for the spouse’s minimum reasonable

needs and that spouse is “unable to earn sufficient income to provide for her minimum

reasonable needs because of an incapacitating physical or mental disability.”


       Once a trial court has determined that a spouse is eligible for spousal maintenance

pursuant to section 8.051(2)(A), the trial court may order maintenance for “as long as the

spouse [seeking maintenance] continues to satisfy the eligibility criteria prescribed by

[section 8.051(2)(A)].”   See TEX. FAM. CODE. ANN. § 8.054(b) (West Supp. 2019).

Therefore, while Odelia is incorrect in her contention that the trial court had the authority

to order spousal maintenance for more ten years pursuant to section 8.054(a)(2)(A), she

would nonetheless be correct if she were contending the trial court had that authority

pursuant to section 8.054(b). Roberts, 531 S.W.3d at 228.


       As fact finder, the trial court may reasonably infer an individual’s incapacity from

circumstantial evidence or the competent testimony of a lay witness, including the

testimony of the person seeking spousal maintenance. Roberts, 531 S.W.3d at 228

(citing Reina v. Gen. Accident Fire & Life Assur. Corp., 611 S.W.2d 415, 417 (Tex. 1981)

(no medical evidence of disability required in case decided under former workers’

compensation statute); Pickens v. Pickens, 62 S.W.3d 212, 215-16 (Tex. App.—Dallas

2001, pet. denied)). A physical disability or incapacity does not need to be proven by

medical evidence. Roberts, 531 S.W.3d at 228-29 (citing Reina, 611 S.W.2d at 417;

                                             10
Pickens, 62 S.W.3d at 216; Galindo v. Galindo, 04-13-00325-CV, 2014 Tex. App. LEXIS

3775 (Tex. App.—San Antonio Apr. 9, 2014, no pet.) (mem. op.) (upheld disability finding

based solely on testimony of party seeking spousal maintenance)). “In fact, the testimony

of the injured party will support a finding of incapacity even if directly contradicted by

expert medical testimony.” Roberts, 531 S.W.3d at 228 (citing Pickens, 62 S.W.3d at

216). There is “no authority directly addressing the quantum of evidence required to prove

incapacity in a spousal maintenance action.” Roberts, 531 S.W.3d at 228-29 (citing

Galindo, 2014 Tex. App. LEXIS 3775, at *4 (quoting Pickens, 62 S.W.3d at 215); Smith

v. Smith, 115 S.W.3d 303, 309 (Tex. App.—Corpus Christi 2003, no pet.)).


       In the matter before us, Odelia told the court she began receiving social security

disability the previous year. On appeal, her counsel discusses the difficulty of satisfying

the burden to receive such benefits. Odelia testified before the district judge that “[t]here’s

no way I can go back and get a job . . . [b]ecause I’m disabled. I got chronic arthritis,

osteoarthritis. I can’t do anything physical that much.” She further testified saying, “I can’t

lift, crawl, climb stairs, stoop, bend or—everything.” She testified that if she tries to do

these things, it is “painful, very painful.” While Odelia did not testify about any efforts to

obtain employment of any kind or explain why her disability prevented her from doing any

type of work, such evidence was unnecessary since Daniel testified he was aware Odelia

was disabled and he did not otherwise contest that issue.


       On appeal, Odelia contrasts Galindo, 2014 Tex. App. LEXIS 3775, at *6-7 with

Wiedenfeld v. Markgraf, 534 S.W.3d 14, 20 (Tex. App.—San Antonio 2017, pet. denied)

to support her contention that the evidence she presented to the district court was

sufficient to allow it to reasonably infer she was disabled. While we agree the court could

                                              11
have made such a finding, we do not agree it was required to make such a finding.

Furthermore, even if the trial court determined Odelia was disabled, it was not required

to order spousal support for an indefinite duration.


       In Galindo, the wife testified she was diagnosed with a “neuromuscular disorder of

the intestinal track” in 2000. Galindo, 2014 Tex. App. LEXIS 3775, at *6. She told the

court it causes her to “get severe pain 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.”

Id. The wife further testified that in addition to the acute symptoms, she is “always in at

least moderate pain and suffers from anxiety.” Id. In addition, she took medication which

also impaired her abilities. Id. Given those facts, the appellate court concluded a fact

finder could reasonably infer the wife’s incapacity from her testimony and the substance

of her testimony was “such that she qualifies for spousal maintenance under section

8.051(2)(A).” Id. at *7. Odelia encourages this court to find that the evidence in this case

is similar to that presented in Galindo and to find that the trial court erred in its award in

the Final Decree of Divorce.


       Odelia contrasts her case with that in Wiedenfeld, 534 S.W.3d at 19, in which the

former husband testified that during their marriage, he helped his wife obtain social

security disability benefits based on her medical issues. He also testified he did not

believe his former wife was unable to obtain or retain employment because she had

worked near the end of their marriage. The former wife testified she received disability

benefits and described her various medical conditions which included “heart disease,

diabetes, arthritis, memory problems, lupus, Sjogren’s disease, foot problems, and back

problems.” Id. She stated she believed her medical conditions affected her ability to

                                             12
obtain and maintain employment because she did not believe an employer would be

pleased if she had to call in sick because she was unable to function. Id. She did note

she watched her roommate’s dogs when her roommate went out of town as a “side job.”

Id. In that situation, the appellate court concluded the trial court could have believed the

former husband’s testimony and noted the former wife did not testify about any effort to

obtain employment and did not dispute the fact that she had worked near the end of their

marriage. Odelia argues Wiedenfeld is distinguishable from her case because the former

husband provided controverting testimony about the former wife’s disability, whereas

Daniel did not.


       We agree with Odelia that she presented testimony somewhat similar to the

testimony set forth in Galindo. Likewise, we agree that, unlike the former husband in

Wiedenfeld, Daniel did not controvert Odelia’s assertion she was disabled. When asked

whether he was aware that Ms. Caudillo was disabled, he responded, “Yes, ma’am.” He

was then asked, “And you understand that on the basis of that disability that the federal

government has determined that she can’t work?” He responded, “That’s what I’ve been

told.” And, we agree Odelia also established she received social security disability

benefits; whereas, unlike the former wife in Wiedenfeld, Odelia did not present any

testimony concerning what efforts she had made to obtain any kind of employment and

did not explain how or why her disability prohibited her from obtaining any type of gainful

employment.


       Considering the two cases cited to us by Odelia, and considering the record before

us, we do not find the trial court abused its discretion. While we agree with Odelia that

her testimony alone would have been sufficient to support a finding that she suffered from

                                            13
a disability, we do not agree with her position that the trial court was required to find she

had such a disability. The trial court was free to determine the credibility of the witnesses

and the weight to be given their testimony, and it was within its discretion to conclude

Odelia was not disabled to the degree that she required indefinite spousal maintenance

payments from Daniel. See Wiedenfeld, 534 S.W.3d at 19 (the trial court is the sole judge

of the credibility of the witnesses and can believe or disbelieve any witness’s testimony).


       Odelia again contends the trial court erred when it substantially changed the

decision disclosed in the October 18 email because all of the evidence presented at the

final hearing was uncontroverted and supports a finding that she was disabled, making

an award of spousal maintenance for an indefinite period of time proper. Again, Odelia’s

argument presupposes that the October 18 email was the judge’s rendered ruling. As we

discussed in our analysis of Odelia’s first issue, that is not the case. The trial judge was

not required to find Odelia disabled, nor was he required to find that she was entitled to

an award of spousal maintenance for an indefinite period of time even if she was. See

O’Carolan v. Hopper, 414 S.W.3d 288, 308 (Tex. App.—Austin 2013, no pet.) (“Extended

maintenance is discretionary under the statute, even if a spouse is permanently

disabled.”) (citation omitted).


       For these same reasons, we do not agree the judge erred by failing to include a

finding that Odelia was disabled. Odelia argues, citing In re S.R.O., 143 S.W.3d 237, 243

(Tex. App. –Waco 2004, no pet.), that because the evidence supports a finding that she

was disabled and because neither party notified the court that the finding on that element

had been omitted, nor did they request a finding on that element, we must presume the

trial court made a finding on that element in a way that supports its judgment.

                                             14
       While the Findings of Fact and Conclusions of Law do not expressly include a

finding that contains the word “disability” or “disabled,” the findings do include one that

says “Odelia Laurie Caudillo was married to Daniel Caudillo for ten (10) years or longer

and will lack the ability to earn sufficient income to provide for the spouse’s minimum

reasonable needs on dissolution of the marriage.”          This was among the factors

considered and appears to include what the judge believed regarding Odelia’s disability

and its effect on her ability to work.


       Odelia argues that the judge “must have either abused his discretion in awarding

maintenance for an indefinite period of time, or he implicitly found [Odelia] is disabled

such that his order complies with Texas Family Code § 8.054(a)(2).” We have already

determined the judge did not award spousal maintenance for an indefinite period of time

because the October 18 email was not a rendition of the trial court’s ruling. And, we have

already determined the judge included a finding that encompassed his conclusion

regarding Odelia’s disability and there is no reason to conclude the judge abused his

discretion in making that finding or in including the spousal maintenance award in the

Final Decree of Divorce. Accordingly, we overrule Odelia’s second issue.


       CONCLUSION

       Having resolved each of Odelia’s issues against her, we affirm the Final Decree of

Divorce of the trial court.




                                                        Patrick A. Pirtle
                                                             Justice


                                            15
