

Opinion issued July 21, 2011.


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00785-CV
———————————
Juan Ayala, Appellant
V.
Blanca Edit
Ayala, Appellee

 

 
On Appeal from the 312th District Court
Harris County, Texas

Trial Court Case No. 2008-14153
 

 
O P I N I O N
          In
this restricted appeal, appellant, Juan Ayala (Juan), appeals from a default
divorce decree dissolving his marriage to appellee, Blanca Edit Ayala (Blanca).  In nine issues, Juan contends that (1) he is
entitled to review by restricted appeal and that the evidence is insufficient
to support: (2) the imposition of retroactive child support; (3) the assessment
of child support; (4) the imposition and assessment of spousal maintenance; (5)
the grant of sole managing conservatorship in favor of Blanca; (6) the trial
court’s property division; (7) the award of attorney’s fees; (8) the grant
of divorce on the grounds of cruelty and adultery; and (9) the amount of
monthly child support and spousal support payments.  We affirm.
Background
Blanca and Juan were married in
1985.  They had four children together
during their marriage.  Blanca and Juan
separated in 1998, and from then on he lived with another woman.  Blanca remained in their home, paying all the
bills and raising the children with no financial help from Juan.  Blanca is diabetic and blind and has had to
look to her children for help with the home expenses because she is unable to
work.
In March 2008, Blanca filed for a
divorce from Juan.  By that time, the
only minor child left in the home was F.A., age fourteen.  Following entry of a series of temporary
orders and a hearing in July 2008, the trial court entered an agreed temporary
order that awarded sole managing conservatorship of F.A. to Blanca.  The agreed order also awarded Blanca temporary
support of $150.00 per week, possession of the couple’s home, and visitation as
agreed by the parties, and it continued all injunctions listed in the
immediately prior temporary restraining order. 
The trial court also entered an agreed injunction against Juan’s going
to the family home.
In October 2008, Juan
counter-petitioned for divorce.  The case
was set for trial in November 2008, then re-set by agreement of the parties for
March 27, 2009.  Blanca and her attorney
appeared for trial on that date.  Neither
Juan nor his attorney was present.  Blanca
presented evidence that Juan had notice of the hearing.  The trial court held a default hearing, after
which it rendered its decision, granting a default judgment to Blanca.  
The final decree granted the
divorce on grounds of insupportability, cruelty, and adultery; assessed child
support at a rate of $650 a month; imposed a judgment against Juan for
retroactive child support in the amount of $61,498, to be paid at $150 a month;
imposed spousal support for three years at a rate of $780 per month; awarded
Blanca her attorney’s fees; divided the parties’ marital estate; and named
Blanca as sole managing conservator of F.A., with visitation as mutually agreed
upon.  The trial court signed the final decree
of divorce on April 28, 2009.  
Four months later, after not filing
any post-judgment motions or notice of appeal, Juan filed a notice of
restricted appeal from this judgment.
Restricted Appeal
          In
his first issue, Juan contends that he is entitled to a restricted appeal from
the trial court’s final decree of divorce. 
Juan’s second through eighth issues challenge the sufficiency of the
evidence to support the judgment.  Juan
claims that the record reveals on its face that there is insufficient evidence
to support several aspects of the trial court’s judgment and that, therefore,
the trial court abused its discretion in making its judgment.  His ninth issue contends, in the alternative,
that the trial court erred in assessing child support and spousal support
payments in excess of 50% of his net monthly income.
We construe Juan’s contentions as
one issue with eight sub-parts—whether the trial court abused its discretion in
entering the final decree of divorce because the evidence was insufficient to
support the judgment.
Standard of Review
A restricted appeal is a procedural
device available to a party who did not participate, either in person or
through counsel, in a proceeding that resulted in a judgment against the
party.  Tex.
R. App. P. 30.  It constitutes a
direct attack on a default judgment.  Id.;
Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942,
943 (Tex. 1991).  A party filing a
restricted appeal must demonstrate that (1) he appealed within six months after
the judgment was rendered, (2) he was a party to the suit, (3) he did not
participate in the actual trial of the case that resulted in the judgment
complained of, (4) he did not timely file a post-judgment motion, a request for
findings of facts and conclusions of law, or a notice of appeal within the time
permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure, and (5) error
appears on the face of the record.  Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 848 (Tex. 2004); Vasquez v.
Vasquez, 292 S.W.3d 80, 83 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Barry v. Barry, 193 S.W.3d 72, 74 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). 
The face of the record includes all papers on file in the appeal,
including the clerk’s record and any reporter’s record.  Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); DSC Fin. Corp. v. Moffitt, 815 S.W.2d
551, 551 (Tex. 1991); Vasquez, 292
S.W.3d at 83.  
          In a
suit for divorce, the petition is not taken as confessed if the respondent does
not file an answer.  Vazquez, 292 S.W.3d at 83 (citing Tex.
Fam. Code Ann. § 6.701 (Vernon 1998)). 
Therefore, if the respondent in a divorce case fails to answer or
appear, the petitioner must still present evidence to support the material
allegations in the petition.  Id. at 83–84.  Because a restricted appeal
affords an appellant the same scope of review as an ordinary appeal, the
appellant may challenge the legal and factual sufficiency of the record.  See
Norman Commc’ns, 955 S.W.2d at 270; Miles
v. Peacock, 229 S.W.3d 384, 386–87 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Vasquez, 292 S.W.3d at 83–84 (holding that default
judgment granting divorce is subject to evidentiary attack on appeal).
Most of the appealable issues in a
family law case are evaluated under an abuse of discretion standard.  In re
A.B.P., 291 S.W.3d 91, 95 (Tex. App—Dallas 2009, no pet.).  A trial
court abuses its discretion when it acts in an arbitrary or unreasonable manner
or when it acts without reference to any guiding principles.  Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Miles, 229 S.W.3d at 388. 
Under this standard, legal and factual sufficiency of the evidence are
not independent grounds of error, but rather are relevant factors in assessing
whether the trial court abused its discretion. 
Stamper v. Knox, 254 S.W.3d
537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  A trial court does not abuse its discretion
when there is some evidence of a substantive and probative character to support
the trial court’s judgment.  Id. 

In reviewing a no-evidence issue,
we consider only the evidence and inferences tending to support the trial
court’s findings, and we disregard all contrary evidence and inferences.  See
Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003); Vasquez, 292 S.W.3d at 83 (applying
standard to restricted appeal from default divorce decree); Barry, 193 S.W.3d at 75.  Anything more than a scintilla of evidence is
legally sufficient to support the trial court’s finding.  Vasquez,
292 S.W.3d at 83.  When we review a
factual sufficiency challenge, we conduct a neutral review of all the
evidence.  Barry, 193 S.W.3d at 75.  We
will reverse for factual insufficiency only if the ruling is so against the
great weight and preponderance of the evidence as to render it manifestly
erroneous or unjust.  Id.
 
Juan’s Sub-Issues
1.    
Evidence to Support Retroactive Child
Support Judgment
          In
his second issue, Juan claims that the evidence is insufficient to support the
trial court’s award of $61,498 as retroactive child support.  
A trial court may order a parent to
pay retroactive child support.  Tex. Fam. Code Ann. §§ 154.009, 154.131
(Vernon 2008).  In doing so, the court
shall apply the child support guidelines. 
Id. § 154.009(b).  It shall consider the net resources of the
obligor during the relevant time period. 
Id. § 154.131(b).  It shall also consider whether (1) the mother
of the child had made any previous attempts to notify the obligor of his
paternity or probable paternity; (2) the obligor had knowledge of his paternity
or probable paternity; (3) the order of retroactive child support will impose
an undue financial hardship on the obligor or the obligor’s family; and (4) the
obligor has provided actual support or other necessaries before the filing of
the action.  Id. § 154.131(b).  It is
presumed that a court order limiting the amount of retroactive child support to
an amount that does not exceed the total amount of support that would have been
due for the four years preceding the date the petition seeking support was
filed is reasonable and in the best interest of the child.  See id.
§ 154.131(c).  This presumption may be
rebutted by evidence that (1) the obligor knew or should have known that he was
the father of the child for whom support is sought and (2) he sought to avoid
the establishment of a support obligation for the child.  Id.
§ 154.131(d)(1)–(2).  
The Family Code instructs the trial court to calculate net resources for
the purposes of determining child support liability.  Id.
§ 154.062 (Vernon 2008).  Accordingly,
there must be some evidence of a substantive and probative character of net
resources in order for the court to discharge this duty.  Newberry
v. Bohn-Newberry, 146 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2004,
no pet.).  A trial court has broad
discretion to award an amount other than that established by the child support guidelines,
but only if the evidence rebuts the presumption that the application of the
guidelines is in the best interest of the child.  See
Tex. Fam. Code Ann. § 154.123(a)
(Vernon 2008).  In determining whether
application of the guidelines would be unjust, the court must consider evidence
of all relevant factors, including, among others, the age and needs of the
child, the ability of the parents to contribute to the support of the child,
including earnings and the amount of spousal maintenance currently being paid,
any financial resources available for the support of the child, and any special
or extraordinary educational, healthcare, or other expenses of the parties or
of the child.  Id. § 154.123(b).  Courts may
calculate net resources on “imprecise information.”  See In
re J.C.K., 143 S.W.3d 131, 139 (Tex. App.—Waco 2004, no pet.).  The trial court has broad discretion in
setting child support, including retroactive support, and its decision will not
be overturned absent a clear abuse of discretion.  Cohen
v. Sims, 830 S.W.2d 285, 288 (Tex. App.—Houston [14th Dist.] 1992, writ
denied).  If there is some evidence of a
substantive and probative character to support the trial court’s judgment
concerning retroactive child support, the trial court did not abuse its discretion.  Newberry,
146 S.W.3d at 235.
          Here, the trial court found that Juan’s gross monthly
income was $3,900, and that his gross annual income was $48,000.  Blanca testified that Juan was earning $750 a
week in 2008 and that he had been employed at the same place and in the same
capacity for 30 years at the time of the divorce hearing, and she provided
evidence that Juan’s monthly salary was $3,250 at the time of trial.  She also testified that Juan had never paid
child support since leaving the family home in December 1998.  This evidence supports the court’s award of retroactive
child support.  See id. at 235–36 (holding that “the trial court heard
uncontroverted evidence that appellant earns $150,000 a year; thus, there is
some evidence to support the trial court’s implied finding that appellant earns
more than $6,000 per month” when wife testified that it was “fair to say [my] husband
makes $150,000 a year”).[1]  
We conclude that the trial court
did not abuse its discretion in awarding retroactive child support.  Therefore, we overrule Juan’s second issue. 
2.    
Evidence to Support the Trial Court’s Assessment of
Child Support
 
          In
his third issue, Juan asserts that the evidence is insufficient to support the
trial court’s assessment of child support. 
          Under
the Family Code, the amount of a child support payment established by the child
support guidelines in effect at the time of a hearing to establish child
support is presumed to be reasonable, and an order of support conforming to
those guidelines is presumed to be in the best interest of the child.  See
Tex. Fam. Code Ann. § 154.123; Sanchez v. Sanchez, 915 S.W.2d 99, 102–03 (Tex. App.—San Antonio
1996, no writ).
Blanca offered evidence that F.A.
was fourteen years old and covered by Medicaid. 
Blanca also testified that she herself was diabetic and blind and
therefore could not work.  She also
offered evidence that the court’s temporary orders, signed in July 2008, had
awarded her $150 per week and that, at that time, Juan was working at the same
place and in the same capacity as at the time of the divorce hearing, as he had
been for more than 30 years.  This
evidence, coupled with Blanca’s uncontroverted testimony of Juan’s total
income, is sufficient to support the trial court’s finding of $150 a week—or $650 a month—for child support.  
We overrule Juan’s third issue.
3.     Evidence to
Support the Trial Court’s Assessment of Spousal Support
 
          In
his fourth issue, Juan claims that the evidence was insufficient to support the
trial court’s imposition and assessment of spousal maintenance.
          Section
8.051 of the Family Code provides, in pertinent part, that the trial court may
award up to three years’ spousal maintenance to a party when the marriage has
lasted at least ten years, the spouse seeking maintenance lacks sufficient
property to provide for her minimum needs, and she is unable to support herself
because of an incapacitating physical disability.  See Tex. Fam. Code Ann. §§ 8.051, 8.054(a)(1)
(Vernon 2006).  The amount of maintenance
is to be determined according to the “minimum reasonable needs of the obligee,
considering employment or property received in the dissolution of the marriage
or otherwise owned by the obligee that contributes to the minimum reasonable
needs of the obligee.”  Id. § 8.055 (Vernon 2006).  The court is to determine the nature, amount,
duration, and manner of the spousal support by considering “all relevant
factors.”  See id. § 8.052 (Vernon 2006). 
These factors include the financial resources of the parties, the division
of property, the education and employment skills of the spouses, the duration
of the marriage, the earning ability and physical and emotional condition of
the spouse, and the comparative financial resources of the spouses.  Id.  A former spouse’s serious physical condition
or inability to support herself is a proper basis for an order of spousal
maintenance.  Id. §§ 8.051, 8.054(a)(2)(A); see
Brooks v. Brooks, 257 S.W.3d 418, 424–25 (Tex. App.—Fort Worth 2008, pet.
denied).  We review the award of spousal
maintenance under an abuse of discretion standard.  Pickens
v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—Dallas 2001, pet. denied).  
Juan challenges the court’s award
of spousal support on the basis that there was no evidence of (1) Blanca’s
“minimum reasonable needs” and (2) the value of the community estate, and, thus,
the trial court could not have properly considered the property distributed to
her in making its spousal support determination.  
The trial court heard testimony
that the marriage lasted longer than ten years and that Blanca is diabetic and
blind and has had to look to her children for help with the home expenses
because she is unable to work.  During
that time, Blanca has raised the children and is still raising their daughter, F.A.  The court also heard that, while Blanca is
disabled and unemployed, Juan has been continuously employed for thirty years
with the same employer.  
This evidence speaks to the
financial resources of Blanca; to her ability to seek employment; to the
duration of the marriage; to Blanca’s earning ability and physical condition;
to Juan’s ability to make support payments; to the comparative financial
resources of the spouses; and to their comparative earning power.  This is “more than a mere scintilla” of
evidence as to Blanca’s minimum reasonable needs.  See
Cooper v. Cooper, 176 S.W.3d 62, 63 (Tex. App.—Houston [1st Dist.] 2004, no
pet.); Amos v. Amos, 79 S.W.3d 747,
750 (Tex. App.—Corpus Christi 2002, no pet.) (“After reviewing the evidence
presented, we find that the record contains evidence of the appellee’s
abilities, education, mortgage concerns, and business opportunities.  Based on this evidence we hold that the trial
court could properly determine the appellee’s minimum reasonable needs.”).
Juan also complains that the trial
court did not hear evidence of the value of the property award that Blanca
received in the divorce and, thus, the trial court could not have properly
considered the property distributed to her in making its spousal support
determination. See Tex. Fam. Code Ann. § 8.051(2).  This
section requires a determination that the spouse seeking maintenance “lacks
sufficient property, including property distributed to the spouse under this code,
to provide for the spouse’s minimum reasonable needs . . .”  Id.  It does not require the court to know the
dollar figure of the valuation of that property.
The trial court awarded Blanca the
home in which she has lived at least since 1998, along with all its
contents.  The trial court heard evidence
that Blanca is blind and cannot work and that she has had to look to her older
children for help with basic bills.  The
trial court had sufficient evidence to make a determination that Blanca lacked
sufficient property to provide for her minimum needs, even in the face of being
awarded the house.  
We overrule Juan’s fourth issue.
4.    
Evidence to Support the Trial Court’s Conservatorship
Order
 
In his fifth issue, Juan claims
that there is no evidence supporting the trial court’s decision to name Blanca
as sole managing conservator of F.A.
          In
determining conservatorship issues, the primary consideration of the trial
court is the best interest of the child. 
Vazquez, 292 S.W.3d at 85.  The trial court has wide latitude in
determining the best interest of minor children. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).  There is a rebuttable presumption that (1)
the standard possession order is in the best interest of the child and (2) the
appointment of the parents as joint managing conservators is in the best
interest of the child.  Tex. Fam. Code Ann. §§ 153.252(2);
153.131(b) (Vernon 2008).  Factors which
may be considered when deciding the best interest of the child—the Holley
factors—include: (1) the desire of
the child; (2) the emotional and physical needs of the child now and in the
future; (3) emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals involved; (5) the best interests
of the child; (6) plans for the child by these individuals; (7) the stability
of the home; (8) acts or omissions of a parent which may indicate that the
existing parent-child relationship is not proper; and (9) any excuse for the
acts or omission of the parent.  Vazquez, 292 S.W.3d at 85 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).
          Here,
there was no evidence that Juan had done anything to meet the emotional and
physical needs of F.A. since leaving the family home in 1998, ten years prior
to the divorce.  Blanca presented
evidence that, in 1998, when Juan left the marital home to live with another
woman with whom he subsequently had a child, F.A. was four years old.  From the time he left, he had failed to
provide child support or to help with home expenses, despite evidence that he
earned $3,250 per month, indicating that he had the resources to do so.  Juan’s failure to contribute to meeting F.A.’s
emotional and physical needs continued despite Blanca’s inability to work since
2007, due to blindness caused by her diabetic condition.  Rather, the F.A.’s adult siblings had helped
with home expenses.
Juan also agreed to a temporary
restraining order on July 18, 2008, that, among other things, named Blanca
temporary sole managing conservator of F.A.; ordered him to pay child support,
health insurance premiums for coverage for F.A., and an equitable portion of F.A.’s
uninsured medical expenses; ordered him to pay spousal support until a final
decree was signed; and awarded Blanca possession of the couple’s residence, as
well as the furniture, furnishings, and personal property at the residence
while the case was pending, and enjoined him from entering or remaining on the
premises of the residence and exercising possession or control of the personal
property except by court order.
          Viewing
the evidence in light of the Holley
factors, we hold that the trial court did not abuse its discretion in naming
Blanca sole managing conservator of F.A. with visitation as mutually agreed
upon.
          We
overrule Juan’s fifth issue.
5.    
Evidence to Support the Trial Court’s
Property Division
          In
his sixth issue, Juan complains that the evidence is insufficient to support
the trial court’s division of the marital estate.
          In a
decree of divorce, the trial court is required to “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 2006); Leax v. Leax, 305 S.W.3d 22, 33–34 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (citing Murff v. Murff,
615 S.W.2d 696, 698–99 (Tex. 1981)).  The
trial court has broad discretion in making a “just and right” division of the
community estate, and its discretion will not be disturbed on appeal unless a
clear abuse of discretion is shown.  Leax, 305 S.W.3d at 34; see also Chafino v. Chafino, 228 S.W.3d
467, 472 (Tex. App.—El Paso 2007, no pet.) (“It is the reviewing court’s duty to presume
that the trial court properly exercised its discretion in dividing the
estate.”).
In determining whether the trial
court abused its discretion in making the property division, we look to whether
the trial court acted arbitrarily or unreasonably, without reference to any
guiding rules and principles.  Evans v. Evans, 14 S.W.3d 343, 346 (Tex.
App.—Houston [14th Dist] 2000, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).  We must determine whether (1) the trial court
had sufficient information upon which to exercise its discretion and (2) the
trial court abused its discretion by causing the property division to be
manifestly unjust or unfair.  Id.  “A
trial court does not abuse its discretion when some evidence of a probative and
substantive character exists to support the division.”  Newberry,
146 S.W.3d at 237.
          When
the circumstances demonstrate a reasonable basis for it, a trial court may
order an unequal division of community property.  Leax,
305 S.W.3d at 34 (citing Murff, 615
S.W.2d at 698–99 & n.1).  A trial court may consider many factors
when exercising its broad discretion to divide marital property, and it is
presumed that it exercised its discretion properly.  Id. (citing
Murff, 615 S.W.2d at 699).  Such factors include the nature of the
marital property; the relative earning capacity and business experience of the
spouses; their relative financial condition and obligations; their education;
the size of separate estates; the age, health, and physical conditions of the
parties; fault in breaking up the marriage; the benefit the innocent spouse
would have received had the marriage continued; and the probable need for
future support.  Id. (citing Murff, 615
S.W.2d at 699).
          Juan
complains that the evidence was insufficient to support the trial court’s
property division because neither party presented evidence of the value of the
house or other assets held by the parties, including the amount of the
insurance check, or of the expenses incurred by Blanca during their
separation.  However, the testimony
offered at the trial regarding the parties’ marital estate provided that the
parties jointly owned the marital residence. 
It is undisputed that Blanca was still residing in that home and that
she had paid all expenses relating to the home since the parties’ separation
more than ten years ago.  Blanca also
testified regarding certain personal property and the check for insurance
proceeds resulting from hurricane damage to the house, which Blanca had in her
possession and was in both of their names, but which Juan refused to endorse.
It is likewise undisputed that the agreed
temporary orders of July 8, 2008 awarded Blanca possession of the couple’s
residence as well as the furniture, furnishings, and personal property at the
residence while the case was pending.  The final decree of divorce followed this
provision in the agreed temporary orders. 
Furthermore, Blanca was ordered to pay, as part of the division of the
estate, the balance due on the mortgage on the house and all charges on the
real and personal property awarded her in the decree, except where the decree
expressly provided otherwise.  Juan was
ordered to pay all of his own debts and obligations incurred solely by himself
after December 1, 1998.  
          Even
without a specific valuation on the house, trial court had sufficient evidence
before it upon which to exercise its discretion in dividing the marital estate.  The evidence provided the identity of the
major assets and liabilities of the marital estate and their present
condition.  See Evans, 14 S.W.3d at 346. 
The evidence supported the trial court’s determination to award Blanca
possession of the house, the personal property in her possession, and the
proceeds of the insurance check and to require that she pay the remainder of
the mortgage.  Blanca had paid all
expenses relating to the house since 1998 and was at that time residing in the
house with F.A., and the trial court’s final decree followed the provisions of
the parties’ agreed temporary orders.  
Furthermore, to the extent that the
trial court’s division of the estate was unequal, the record supports such a
division.  Blanca is diabetic and blind, uneducated,
and unable to work.  The evidence also
indicated that Blanca continued to care for the couple’s children throughout
their ten-year separation without help from Juan, including the care of one
minor child still residing in the home at the time of the default hearing, and
that Juan had committed adultery and was primarily responsible for the breakup
of the marriage.  These factors all
support the trial court’s division of the marital estate.  See Leax,
305 S.W.3d at 34 (citing Murff, 615
S.W.2d at 699).  Thus, the trial court’s
division of the estate was reasonable.  
Therefore, we overrule Juan’s sixth
issue.
6.    
Evidence
to Support the Court’s Award of Attorney’s Fees
          In his seventh issue, Juan asserts
that the evidence is insufficient to support the trial court’s award of $4,000 in
attorney’s fees in Blanca’s favor.
          A court may apportion attorney’s fees
in a suit affecting the parent-child relationship.  See Tex. Fam. Code Ann. § 106.002 (Vernon
2008).  Furthermore, a court may
apportion attorney’s fees in a divorce action as part of a “just and right”
division of property.  Vasquez, 292 S.W.3d at 86.  The reasonableness of the fee awarded is a
question of fact that must be supported by the evidence.  Id.  A judgment awarding attorney’s fees may be
supported solely by the attorney’s testimony. 
Id.
          Blanca’s attorney testified that
$4,000 of attorneys’ fees had been accrued, of which Blanca had already paid
$2,500.  Of this amount, the trial court
awarded $1,500 to Blanca’s attorney and $2,500 to Blanca.  
We overrule Juan’s seventh issue.
7.    
Evidence to
Support the Grant of Divorce on Grounds of Cruelty and Adultery
 
          In his eighth issue, Juan claims that there is
insufficient evidence to support the grant of divorce on grounds of cruelty and
adultery.  
a.     Cruelty
          A court may grant a divorce on the
ground of cruel treatment.  Tex. Fam. Code Ann. § 6.002 (Vernon 2006). 
To be considered “cruel treatment,” the conduct of the accused party
must rise to such a level as to render the couple's living together
insupportable.  Id.  “Insupportable,” for
purposes of “cruel treatment,” means incapable of being borne, unendurable,
insufferable, or intolerable.  Henry v. Henry, 48 S.W.3d 468, 473–74
(Tex. App.—Houston [14th Dist.] 2001, no pet.). 
Mere trivial matters or disagreements do not justify the granting of divorce
for cruel treatment.  Shankles v. Shankles, 445 S.W.2d 803,
807 (Tex. Civ. App.—Waco 1969, no writ). 
Acts occurring after separation can support a finding of cruel
treatment.  Redwine v. Redwine, 198 S.W.2d 472, 473 (Tex. Civ. App.—Amarillo
1946, no writ).
          Blanca testified that, since she and
her husband separated, he has been living with another woman.  She further testified that since Juan left
the home, he has provided no assistance of any sort with household expenses or
child support, despite the fact that she was raising their four children.  Although Blanca did not testify as to when she
became disabled and blinded by diabetes, she testified as to her blindness and
disability and that it prevented her from working.  Furthermore, Blanca testified that she has had
to look to her adult children for help with home expenses.  This is more than a scintilla of evidence in
support of the trial court’s finding of cruelty as a ground for divorce.
b.     Adultery
A divorce may be granted in favor of one spouse if the other spouse has
committed adultery.  Tex. Fam. Code Ann. § 6.003 (Vernon
2006).          “Adultery,”
as used in a divorce proceeding, means the voluntary sexual intercourse of a
married person with one not the husband or wife of the offender.  Bell v.
Bell, 540 S.W.2d 432, 435 (Tex. Civ. App.—Houston [1st Dist.] 1976, no
writ).  Adultery may be proved either by
direct or circumstantial evidence.  Miller v. Miller, 306 S.W.2d 175, 176
(Tex. Civ. App.—San Antonio 1957, no writ). 
Mere suggestion and innuendo, however, are insufficient; clear and
positive proof is necessary.  In re S.A.A., 279 S.W.3d 853, 856 (Tex.
App.—Dallas 2009, no pet.).  Adultery is
not limited to actions committed before the parties separated.  Bell,
540 S.W.2d at 435.
          The
trial court had before it undisputed testimony that Juan had been living with
another woman since Blanca and Juan separated in 1998 and that they had a child
together.  This is not “mere suggestion
and innuendo,” but is some evidence to support the trial court’s grant of divorce
based on adultery.  
We overrule Juan’s eighth issue.
8.    
Child Support and Spousal Support in
Excess of 50% of Earnings
          In
his ninth issue, Juan claims that the trial court erred in assessing child
support and spousal support payments in excess of 50% of Juan’s net monthly
income.  Juan points out that the current
child support in the amount of $650 a month, coupled with retroactive child
support in the amount of $150 a month, health insurance at $70 a month and
spousal support of $780 a month, equals $1,650 per month, an amount slightly
more than 50% of $3,250, the monthly amount of Juan’s income as determined by
Blanca’s testimony.  Juan claims that the
trial court abused its discretion in imposing these obligations.
          Juan
cites to section 158.009 of the Family Code, which prohibits an order or writ
of withholding that directs an obligor’s employer to withhold more than 50% of
the obligor’s disposable earnings.  See Tex.
Fam. Code Ann. § 158.009 (Vernon 2008); id. § 8.106 (Vernon 2006). 
He cites to no law which stands for the proposition that it is an abuse
of discretion for a trial judge to assess support in an amount greater than
50%.
          The
trial court signed two orders of withholding in this case.  One pertains to withholding for child
support, one for withholding for spousal maintenance.  The order for child support specifically
states that the “maximum amount to be withheld shall not exceed 50 percent of
Juan Francisco Ayala’s disposable earnings.” 
It goes on to direct the employer that, if it receives more than one
withholding order, it is to “pay an equal amount towards the current support
portion of all order or writs until each is individually complied with, or
until the maximum amount of allowable withholding, 50 percent of Juan Francisco
Ayala’s disposable earnings, is reached, whichever occurs first.”  Thus the trial court has, in keeping with the
Family Code provisions, ordered that the employer shall only withhold an amount
up to 50% of the Juan’s disposable earnings. 
See id.  
We overrule Juan’s ninth issue.
 
 
 
 
 
 
Conclusion
          We
affirm the order of the trial court.         

 
 
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel consists of Justices Keyes, Sharp, and Massengale.
 
Justice Sharp, dissenting.
 
 




[1]
          The dissent cites Flores v. Cuevas, No. 01-06-00257-CV,
2007 WL 624716 (Tex. App.—Houston [1st Dist.] Mar. 1, 2007, no pet.) (mem.
op.), among other cases, to support its argument that the evidence was
insufficient to establish Juan’s income during the relevant time period.  In Flores,
this Court held that an award of retroactive child support was an abuse of
discretion because there was “no evidence [of the father’s resources]
pertaining to the relevant time period.” 
2007 WL 624716, at *4.  However, this case is distinguishable from
Flores because Blanca testified that
Juan had been employed at the same place and in the same capacity for the
entire relevant time period.  Thus, her
testimony constitutes some evidence of Juan’s resources during the relevant
time period.  See In re J.C.K., 143 S.W.3d 131, 139 (Tex. App.—Waco 2004, no
pet.) (holding that courts can calculate net resources on “imprecise
information”); In re Sanders, 159
S.W.3d 797, 800–01 (Tex. App.—Amarillo 2005, no pet.) (holding that compliance
with child support guidelines is not mandatory in awarding retroactive child
support, but court must nevertheless “consider” net resources during relevant
time period and several other factors). 
Thus, because there is some evidence, we cannot conclude that the trial
court abused its broad discretion in setting retroactive child support.  See Newberry
v. Bohn-Newberry, 146 S.W.3d
233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding that trial
court did not abuse its discretion if there is some evidence of a substantive and
probative character to support trial court’s judgment concerning retroactive
child support); Cohen v. Sims, 830
S.W.2d 285, 288 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (holding
trial court has broad discretion in setting child support, including
retroactive support).


