             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00132-CV
      ___________________________

  THOMAS WAYNE EVANS, Appellant

                     V.

    SANDRA LYNN EVANS, Appellee



   On Appeal from the 89th District Court
         Wichita County, Texas
        Trial Court No. 187,526-B


Before Sudderth, C.J.; Gabriel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                 I. INTRODUCTION

      Appellant Thomas Wayne Evans (Thomas) appeals the trial court’s final decree

of divorce. In three issues, Thomas argues that the trial court abused its discretion by

(1) ordering that he pay spousal maintenance to appellee Sandra Lynn Evans (Sandra),

(2) ordering that he pay spousal maintenance in excess of the statutory limit, and

(3) not ordering that he was entitled to reimbursement for improvements made to

Sandra’s separate property. Because we conclude that the trial court did not abuse its

discretion by ordering spousal maintenance but that the trial court ordered the spousal

maintenance in excess of the statutory limit and because we conclude that Thomas

failed to provide sufficient evidence that he was entitled to reimbursement, we reverse

and remand in part and affirm in part.

                                  II. BACKGROUND

      After more than eighteen years of marriage, Thomas filed his petition for

divorce pleading that the marriage had become “insupportable because of discord or

conflict of personalities.”   Sandra filed a general denial and a counterpetition

requesting, among other relief, that the trial court order that Thomas pay post-divorce

spousal maintenance. Trial was to the court.

A. Sandra’s Testimony

      Sandra testified at trial. Sandra said that she owned a house that was her

separate property on Rose Street in Burkburnett. According to Sandra, she acquired
                                           2
the house in a previous divorce on August 9, 1999. She further stated that Thomas

had moved into the house in April 1999 but that he did not begin helping with house

payments until July 1999—Thomas and Sandra married on August 21, 1999. Sandra

said that after their marriage, she and Thomas began to pay the Rose Street house

payments from community funds. By Sandra’s account, two years after the couple

married, and because it was required under her previous divorce decree, she and

Thomas refinanced the house in both of their names, but the deed remained in her

name.

        Regarding her plans for housing, Sandra averred that a tax appraisal had

recently valued the Rose Street house at $114,000, that she had currently listed the

house for sale at $145,000, and that there remained $49,000 in debt on the house. She

said that she would expect to have roughly $96,000 in proceeds when she sold the

Rose Street house; that she expected those proceeds would go toward the purchase of

a new home; and that, given realtor fees and closing costs, she was “going to barely

have enough to pay for [the new] house.”

        According to Sandra, Thomas had made “[m]inor improvements” on the house

since the couple married, including having new carpet laid, installing a new stove and

a new dishwasher, and putting a new steel roof on the house, which she testified cost

between $8,000 and $10,000. Sandra stated that these improvements were paid for

from the couple’s joint checking account that contained community funds, including

monies from an income tax return and from both of their jobs. But Sandra admitted
                                           3
that some of the money that went into the joint checking account came from an

inheritance that Thomas received after the couple married. Sandra said, however, that

she did not know how much money Thomas had inherited and placed into their joint

bank account because he had “kept everything hush, hush, and [she] was never told

exactly how much money he was given.” She also stated that she had never seen a

will or even a check demonstrating that any of the monies in their shared account

were Thomas’s separate property.

      Sandra said that other improvements had been made on the house since

Thomas received his inheritance.       Specifically, Sandra averred that Thomas had

painted the ceiling and helped put down linoleum in the kitchen and that, together,

they had built and decorated a workshop. By Sandra’s account, Thomas and her

brothers provided the labor to build the workshop, which has running water and

electricity. She admitted that some of the money to build the workshop came from

Thomas’s inheritance. The couple had opened a fine and performing arts studio in

the workshop; Thomas taught on one side of the workshop, and Sandra taught on the

other. Sandra referred to the studio as the couple’s joint business.

      Sandra testified that she drove a 2014 GMC Acadia that was worth $18,000 but

that the payoff for the vehicle was $23,000 and that the note on the vehicle was in

both her and Thomas’s names. Thus, Sandra asked the trial court to order that

Thomas be required to help pay her “almost $500 car payment” each month. Sandra

said that Thomas drove a 2006 Chevrolet Colorado that was titled in his name alone,
                                           4
and she asked the court to award the Colorado and any debt associated with it to

Thomas. By Sandra’s account, the couple also owned a 2006 Chrysler PT Cruiser.

She wanted the court to order it sold and to order that the proceeds be divided

between herself and Thomas. Sandra further asked the court to order that Thomas

assume any debt on his Wichita Falls Teachers Credit Union credit card, which she

said had a balance of about $6,000.

      Regarding her monthly expenses, Sandra testified that she spent $150 a month

on gas and $200 a month on groceries. She averred that she did not know what her

monthly utilities would cost until she moved into a new home, but that she was asking

the court to order $240 for monthly utility bills, which she said was half of the

amount she and Thomas spent on monthly utilities on the Rose Street house. Sandra

stated that she incurred more than $350 monthly related to medical co-pays,

counseling, physical therapy, and over-the-counter medications and that she was

asking the court to consider these amounts in her request for spousal maintenance.

Sandra said that she did not expect to need more than $10 a month for clothing

purchases, but she would need roughly $30 a month for haircuts. She also said that

she would need $200 a month to pay down the credit cards that she would be

assuming. According to Sandra, she received $586 monthly from her ex-husband’s

retirement, and she believed that after subtracting that from her total monthly

expenses, she would need roughly $1,122 a month to pay for her living expenses.


                                         5
       Sandra testified that she had undergone twenty-one surgeries in the six years

leading up to trial, including having had multiple herniated discs removed and

replaced with artificial discs, as well as having a spinal stimulator implant, two

abdominal surgeries, and two shoulder surgeries. She also explained that she had

permanent nerve damage on her left side and that she suffers from severe neuropathy.

According to Sandra, the Social Security Administration deemed her disabled in

August 2015, but some of these surgeries occurred since receiving that designation.

She also stated that she had not paid into Social Security because she had previously

been either self-employed or a teacher. Therefore, the only benefit she received from

the disability designation was Medicare. Since applying for Medicaid, she received

$100 monthly in food stamps, and she believed in the near future that Medicaid would

pay her Medicare premiums.

       Sandra said that the only way that she had been able to afford her monthly

expenses during the pendency of this case was through assistance from family

members and charities. She also said that even though the trial court had recently

entered orders for Thomas to pay temporary spousal maintenance, he had not fully

complied with the orders and still owed her between $800 and $1,300. Sandra averred

that Thomas earned $4,185.68 a month and that she was asking the court that 20% of

that amount be awarded to her as permanent monthly spousal support given her

disabilities.


                                         6
      Sandra testified that Thomas had become abusive towards her after she

“caught him with his co-worker at school” in 2013. Specifically, Sandra said that

Thomas was mentally and physically abusive toward her, that he had “put hands on”

her four times, and that the abuse made the marriage unbearable.

B. Thomas’s Testimony

      Thomas testified that he inherited $50,000 when his father passed away, that he

had only received $47,000 of that inheritance, and that $40,000 was deposited into a

joint bank account the couple had opened and used for the sole purpose of building

the workshop. Thomas claimed that the $7,000 that came later was actually a loan

from his mother for putting a new roof on the house and installing a carport, but in

other testimony, Thomas said that the $7,000 “was part of [his] inheritance to start

with.” And Thomas claimed that his mother paid the Rose Street house payments

“[e]very month” during the four years before trial because he and Sandra had a hard

time making ends meet. Thomas asked the court to order that Sandra be entitled to

all proceeds from the sale of the house in lieu of spousal support and any entitlement

to his retirement account. Thomas agreed that he grossed $4,185.68 and netted

$3,667 monthly from his teaching job.

      Thomas denied that he had ever physically abused Sandra. Instead, Thomas

said that Sandra had once hit him with her car, but he chose not to press charges. He

also said that she once attacked him with a tree branch, but he evaded her. Thomas

also disputed that he had ever committed infidelity during the marriage.        When
                                          7
confronted with a letter that he had written Sandra in which he apologized for having

an “inappropriate relationship at work,” Thomas said that Sandra’s definition of

inappropriate relationship included talking to another woman and that he was

attempting to utilize her language in an effort to prevent “hours and hours of

bantering” about him having talked to a female co-worker.

      Thomas admitted that he did not have a copy of his father’s will showing that

he had inherited the money deposited into the account used for building the

workshop, nor did he have any paperwork to demonstrate when the money was

deposited, how much may have been deposited, and where the money was deposited.

Instead, Thomas said that his testimony was the only evidence he had that the money

used to pay for building the workshop was his separate property.

C. The Trial Court’s Judgment

      In the final divorce decree, the trial court granted the divorce, dissolving the

marriage on the grounds of insupportability. The court ordered that Sandra was

awarded the GMC Acadia (and its related debt) and that she was entitled to 50% of

Thomas’s retirement benefits accrued during the marriage.          The trial court also

ordered that Thomas was not entitled to reimbursement for improvements made to

the Rose Street house and that Thomas was to pay spousal maintenance in the

amount of $900 monthly for an indefinite period or until the death of one of the

parties, the remarriage of Sandra, the abeyance of Sandra’s disability, or the entry of a

new court order.
                                           8
        In one of its findings of fact, the court found that Thomas’s monthly gross

income “[was] greater than $4,500.” The court also found that the Rose Street house

was Sandra’s separate property as she acquired it prior to the marriage and that there

was insufficient evidence to show Thomas was entitled to any reimbursement for the

improvements on the house. This appeal followed.

                                   III. DISCUSSION

A. Spousal Maintenance

        In his first issue, Thomas argues that the trial court abused its discretion by

ordering that he pay spousal maintenance. Specifically, Thomas argues that Sandra

was awarded sufficient property to meet her minimum reasonable needs.

        A spouse in a divorce proceeding is eligible to seek spousal maintenance if that

spouse lacks sufficient property to meet minimum reasonable needs and cannot

support herself due to an incapacitating physical or mental disability. See Tex. Fam.

Code Ann. § 8.051(2)(A); In re Green, 221 S.W.3d 645, 647 (Tex. 2007); In re Marriage of

Elabd, 589 S.W.3d 280, 283 (Tex. App.—Waco 2019, no pet.). The term “minimum

reasonable needs” is not defined in the Family Code, nor are there cases defining the

term.    Slicker v. Slicker, 464 S.W.3d 850, 860 (Tex. App.—Dallas 2015, no pet.).

Rather, the minimum reasonable needs for a particular individual is a fact-specific

determination that should be made by the trial court on a case-by-case basis. Id.

        Section 8.054(a)(1) of the Texas Family Code generally limits a trial court’s

award of spousal maintenance based on the length of the marriage. See Tex. Fam.
                                            9
Code. Ann. § 8.054(a)(1); Green, 221 S.W.3d at 647; Elabd, 589 S.W.3d at 283. But

under section 8.054(b), if the spouse seeking maintenance is unable to support herself

through appropriate employment because of an incapacitating physical or mental

disability, the trial court may order spousal maintenance for an indefinite period of

time as long as the disability continues. Tex. Fam. Code Ann. § 8.054(b); Green,

221 S.W.3d at 647; Elabd, 589 S.W.3d at 283. Additionally, Section 8.056 provides

that the obligation to pay future maintenance terminates on the death of either party,

the remarriage of the obligee, or if, after a hearing, the trial court determines that the

obligee “cohabits with another person with whom the obligee has a dating or

romantic relationship in a permanent place of abode on a continuing basis.” Tex.

Fam. Code Ann. § 8.056; Green, 221 S.W.3d at 647; Elabd, 589 S.W.3d at 283.

      We review a trial court’s award of spousal maintenance for an abuse of

discretion. Elabd, 589 S.W.3d at 283. Under the abuse of discretion standard, legal

and factual sufficiency of the evidence are not independent grounds for asserting

error, but they are relevant factors in assessing whether the trial court abused its

discretion. Id.; Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.]

2005, pet. denied).

      Here, Thomas does not challenge that Sandra is disabled or unable to work. 1

Rather, Thomas argues that Sandra received a sufficient amount of the marital estate,


      1
       At trial, Thomas agreed multiple times that Sandra is “physically disabled.”

                                           10
including the Rose Street house and 50% of his retirement, to meet her needs. The

gist of Thomas’s argument is that because she left the marriage with nearly $100,000

worth of assets, she can afford to pay for her roughly $1100 monthly deficiency and

thus spousal maintenance is improper. Thomas does not cite any authority to support

his position.

       We conclude that the trial court had sufficient evidence to order spousal

maintenance. After detailing her monthly living expenses, Sandra testified that even

after receiving $586 monthly from her previous husband’s retirement, she would still

need roughly $1,122 a month to cover her necessary living expenses. Further, Sandra

testified that this deficient amount did not include a monthly rent or mortgage

payment and that the proceeds from the sale of the Rose Street house would go

directly into the purchase of a new home so that she did not have a house payment.

Sandra said that after the sale of the Rose Street house, given realtor fees and closing

costs, she was “going to barely have enough to pay for [the new] house.” Thus, the

trial court heard evidence that Sandra had not included the costs of stable housing in

her request for spousal maintenance because she intended to cover those costs with

the proceeds from the sale of the house and that she would continue to incur her

monthly deficit despite the fact that she was selling the Rose Street house.

       We also reject Thomas’s argument that because Sandra was awarded half of his

retirement, she has sufficient resources to cover her monthly needs. Indeed, Thomas

testified that his retirement annuity would not begin to pay out for another twelve to
                                           11
fifteen years. Thus, the benefits that Sandra will receive in the future will not support

her during the time between the divorce and when Thomas begins to draw from his

retirement. And the trial court expressly stated in the decree that when Sandra begins

to receive benefits from Thomas’s retirement, “that circumstance shall be a

consideration in any petition to modify spousal support filed by Thomas.” Thus, the

trial court considered the financial impact of both Sandra and Thomas receiving his

retirement in the future. See Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.—

Dallas 2003, no pet.) (“While Barbara received the majority of the marital estate, the

court could have reasonably concluded that her funds would be exhausted before her

earnings matched her reasonable minimum monthly expenses.”).               We overrule

Thomas’s first issue.

B. Spousal Maintenance Amount

      In his second issue, Thomas argues that the trial court erred by finding that he

made in excess of $4,500 a month and thus the ordered $900 in monthly spousal

maintenance exceeds the statutory limit. We agree.

      The amount of spousal maintenance is confined by statutory limits. Tex. Fam.

Code Ann. § 8.055(a). Under Section 8.055(a), the amount of maintenance awarded

by the trial court cannot be more than the lesser of $5,000 or twenty percent of the

paying spouse’s average monthly gross income. Id.

      The trial court in this case found that Thomas’s average monthly gross income

“is greater than $4,500” and ordered that Thomas pay $900 (which would be twenty
                                           12
percent of $4,500) monthly to Sandra as spousal maintenance. But the evidence does

not support that Thomas’s monthly gross income “is greater than $4,500.” Even

though Thomas testified that in the past he had held part-time employment in

addition to his employment as a schoolteacher, he said that he currently was making

only his salary at the school and that the income was fixed at $4,185.68 per month.

Not only was this evidence not contradicted, but Sandra too testified that Thomas’s

monthly gross income was $4,185.68.          Thus, the maximum amount of spousal

maintenance that the trial court could have imposed was $837.14.

      Because the amount of maintenance awarded by the trial court is discretionary

only within the statutory limits, we will reverse the judgment of the trial court relating

to the amount of spousal support awarded and remand for a new trial on the amount

of spousal maintenance to be awarded to Sandra. See id.; see also Deltuva, 113 S.W.3d at

889 (declining to modify the trial court’s judgment when there was not undisputed

evidence of the length of time spousal maintenance should have been ordered to last);

In re Marriage of Franklin, No. 10-13-00007-CV, 2013 WL 4799063, at *3 (Tex. App.—

Waco Aug. 29, 2013, no pet.) (mem. op.) (holding that trial court imposed a spousal-

maintenance amount greater than statutory limits under Section 8.055(a) and

remanding to trial court to re-address spousal maintenance amount while affirming

trial court’s judgment in all other respects). We sustain Thomas’s second issue.




                                           13
C. Reimbursement

      In his third issue, Thomas argues that the trial court abused its discretion by

not awarding him reimbursement for the improvements to the Rose Street property.

We disagree.

      A claim for reimbursement may include capital improvements to property

other than by incurring debt. Tex. Fam. Code Ann. § 3.402(a)(8). Reimbursement for

funds expended by a marital estate for improvements to another marital estate shall be

measured by the enhancement in value to the benefited marital estate. Id. § 3.402(d).

The enhanced value is determined by the difference between the fair market value of

the property before and after the improvements. Matter of Marriage of McCoy & Els,

488 S.W.3d 430, 435 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The party

claiming reimbursement bears the burden of establishing the net benefit to the payee

estate, proving that expenditures were made, and that the expenditures are

reimbursable. Id. at 434; Zeptner v. Zeptner, 111 S.W.3d 727, 737 (Tex. App.—Fort

Worth 2003, no pet.). Evidence of the cost of improvements alone is not sufficient to

prove enhanced value. McCoy & Els, 488 S.W.3d at 435; see also Anderson v. Gilliland,

684 S.W.2d 673, 675 (Tex. 1985) (rejecting cost as a measure of reimbursement). We

review a trial court’s decision concerning a claim for reimbursement for an abuse of

discretion. Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988).

      Here, the trial court found that Thomas presented “insufficient evidence to

support his claim that his separate estate should be reimbursed for funds or assets
                                          14
expended by his separate estate for the benefit of the community.” Thomas testified

that he used funds he believed to be his separate property that he had received from

an inheritance to improve the Rose Street house, which is Sandra’s separate property.

In fact, Thomas and Sandra both testified to improvements made to the house during

the marriage. Thomas also testified that the amount of funds he expended was

$47,000. But Thomas did not present any evidence to show that any enhanced value

of the Rose Street house resulted from the improvements. Thus, the trial court did

not abuse its discretion by finding that Thomas presented insufficient evidence that

he was entitled to reimbursement because Thomas only presented evidence of the

cost of improvements to the house. See Bell v. Bell, No. 12-04-00244-CV, 2005 WL

1538275, at *7 (Tex. App.—Tyler June 30, 2005, no pet.) (mem. op.) (holding that

husband was not entitled to reimbursement because there was no evidence that

repairing septic system to house owned by wife separately was a capital improvement

to the septic system or the home). We overrule Thomas’s third issue.

                                   IV. CONCLUSION

       Having sustained Thomas’s second issue that the trial court abused its

discretion in its calculation of the amount of spousal maintenance to be awarded, we

reverse the judgment of the trial court only as to the amount of spousal maintenance

and remand this proceeding to the trial court for a new trial solely on the amount of

spousal maintenance to be awarded.         Having overruled Thomas’s first and third

issues, we affirm the judgment of the trial court in all other respects.
                                            15
                                /s/ Dana Womack

                                Dana Womack
                                Justice

Delivered: April 9, 2020




                           16
