                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-18-00183-CV

                IN THE MATTER OF THE MARRIAGE OF
                  YOSSEF ELABD AND SONIA ELABD
                                AND
           IN THE INTEREST OF J.E., E.E. AND S.E., CHILDREN


                       From the County Court at Law No. 2
                               Brazos County, Texas
                       Trial Court No. 17-000880-CVD-CCL2


                               DISSENTING OPINION

       If the rote recitation of the statutory factors as findings of fact is all that is necessary

to support a determination that a former spouse should receive spousal maintenance in

a certain amount, then we should affirm the trial court’s judgment as the Court has

done. But the statute requires more. And based upon the findings and the evidence, or

lack thereof, necessary to support a determination of eligibility for, and the amount of,

spousal maintenance, I cannot join my colleagues and must respectfully dissent.

       In this case, the spousal maintenance is nothing short of an outright monetary

award of monthly payments from one former spouse to the other; universally known as

alimony. It is not tied to the statutory requirements to be eligible for spousal maintenance
or limited to the extent to which minimum reasonable needs (necessary expenses)

exceeds earnings. But before we get to the merits of the issues, it is necessary to consider

the appropriate standard of review.

        The Court recites that the standard of review is for an abuse of discretion. I believe

we must first examine which issue, and possibly which part of an issue, is being

reviewed. This seems to be a question on which the Texas Supreme Court has not

spoken. We must begin with the standard for reviewing the determination of whether

the spouse, in this case the wife, Sonia, is eligible for spousal maintenance. See TEX. FAM.

CODE ANN. § 8.051. There is very little, if any, discretion in determining whether a former

spouse could be eligible for spousal maintenance. Either the spouse seeking it meets the

statutory requirements for eligibility by providing the necessary evidence or they do

not. The relevant provision in this proceeding is sub-section (2)(B) of section 8.051 (with

some of the elemental conditions precedent given in the statute before this particular sub-

section).

        I can agree that, once the threshold of being eligible to be awarded spousal

maintenance is proven, whether to order spousal maintenance is then the trial court’s

discretionary decision as is the determination of the amount of the award, which could

be none at all up to the full amount necessary “to provide for the spouse’s minimum

reasonable needs.” Id. (2)(B) (emphasis added). After all, the section is titled “Eligibility

for Maintenance” not “Entitlement to Maintenance” and the opening paragraph states,

“the Court may order maintenance.” Id. § 8.051 (emphasis added). And it is in the

language “may order maintenance” that the court’s decision to order an award is cloaked

In the Matter of the Marriage of Elabd                                                  Page 2
with discretion. But the requirements for “eligibility” must be proven first; and whether

or not that has been done, appears to be purely a question of reviewing the sufficiency of

the evidence to provide the fact finder the necessary level of evidence to make the

determination. Thus, in providing the necessary level of evidence to prove eligibility,

there is no “discretion.” It could be argued that if there is insufficient evidence to prove

they are eligible for spousal maintenance, the trial court then abuses its discretion to

award spousal maintenance. This confuses the standard of review when sufficient

evidence must be presented to prove an element of a claim with the discretion of the trial

court of whether to give an award once eligibility is proven. Thus, I believe it is better to

frame our review on the issue of eligibility for an award of spousal maintenance as a

sufficiency-of-the-evidence review rather than an abuse-of-discretion review. In this

instance, it does not matter. The trial court erred under either standard of review.

        Once eligibility is proven, and the trial court exercises its discretion to make an

award, the trial court then must decide the amount of spousal maintenance to be

awarded. See TEX. FAM. CODE ANN. § 8.052. In making this determination, the legislature

charged the court to “determine the nature, amount, duration, and manner of periodic

payments by considering all relevant factors” and then provided a list of 11 non-exclusive

factors to be considered. This then presents another opportunity for the trial court to

exercise its discretion by determining the amount of the award. And it is in this context

that I believe those cases in which courts using an abuse of discretion standard have

reviewed the sufficiency of the evidence in proving the various factors, which are not

elements, as it might impact the trial court’s discretion in determining the appropriate

In the Matter of the Marriage of Elabd                                                 Page 3
amount and duration of the award. With this understanding of the statute and the

appropriate lens though which to review them, we can turn to the merits of the issues.

        The Court paraphrases the findings the trial court labeled as being relevant to Joe’s

(Yossef’s) first two issues: 1) eligibility for spousal maintenance, and 2) the appropriate

amount of spousal maintenance. These findings are nothing more than the factors listed

in the Family Code that apply to this case. See TEX. FAM. CODE ANN. § 8.052. The actual

findings are virtually a verbatim recitation of the factors using the statutory

language. Sonia, the spouse seeking spousal maintenance, introduced meager evidence

of what she would like to spend each month. I would characterize it as her optimal or

preferred budget. It was a nice budget. It included $600 per month for entertainment

and an additional $600 per month for gifts and donations. Including these “expenses” in

her minimum reasonable needs (necessary expenses), even with no evidence to justify

these amounts, her total monthly expenses were only $159 more than her monthly

earnings, which included child support.

        There is nothing in the trial court’s judgment that helps us in the analysis of why

it decided to award $1,500 when the shortfall in income to cover the expenses in her

optimal budget was only $159. The trial court simply awarded the arbitrary amount of

$1,500 per month in spousal maintenance. In then attempting to justify its determination

of Sonia’s eligibility for spousal maintenance, the trial court parroted the factors

necessary for determining the amount of an award but made none of the findings of the

elements necessary to support the eligibility for an award. Compare § 8.052 (listing the

factors to consider in determining the amount of the award) with § 8.051 (listing the

In the Matter of the Marriage of Elabd                                                 Page 4
elements, or criteria, necessary to establish the eligibility for an award of spousal

maintenance in any amount). The only finding remotely related to determining eligibility

was that Sonia “earns $76,000 [annually] working full time,” knowing her income is

necessary to the computation. But even if this “finding” is necessarily referable to the

determination of being eligible for an award of spousal maintenance, and it is not, this is

not even a complete “element” and is actually only part of the income. Elsewhere in the

decree, we know Sonia was also awarded child support in the amount of $2,565 per

month. What we do not have is a finding, or even evidence, of Sonia’s “minimum

reasonable needs” as required under the Family Code. Moreover, the trial court was

asked to make additional findings but did not; and thus, we may not supply findings by

implication. See TEX. R. CIV. P. 299. Sonia’s evidence, at best, established only one half of

one element necessary to be eligible for spousal maintenance. Even as to that element,

that is the equivalent of no evidence. And even if we could supply findings by

implication, we can only supply findings that have support in the evidence. It is

questionable that there is enough evidence to even rebut the presumption against an

award of spousal maintenance. TEX. FAM. CODE ANN. § 8.053. The evidence necessary to

support the required elements is simply not in this record. Thus, I would sustain issue

one.

        Because I do not believe Sonia proved she met the statutory requirements to be

eligible for spousal maintenance, I would not reach the second issue. Because the Court

discusses the second issue, I will also address it. Again, the trial court’s findings do

nothing more than parrot the statutory language of the factors to be considered when

In the Matter of the Marriage of Elabd                                                 Page 5
deciding the amount of spousal maintenance. TEX. FAM. CODE ANN. § 8.052. That is not

enough. Such a process would effectively thwart appellate review. In this case, I find it

even more disturbing because of how close Sonia’s monthly income is when compared

to the expenses in her optimal budget, which appears to include at least $1,200 of highly

discretionary expenses.

        Based on the proof of the earnings of the spouse seeking the award and that

spouse’s “minimum reasonable needs,” the fact finder can determine the maximum

amount that could be awarded. The most the evidence could support for spousal

maintenance was $159 per month needed to cover all the expenses in her entire optimal

budget, which included the $1,200 for entertainment and gifts. Thus, even recognizing

that determining the amount of spousal maintenance is discretionary, the limit of that

discretion for spousal maintenance based on this record would be $159 per month, not

the $1,500 awarded by the trial court and affirmed by this Court. Given the nature of

some of the items in Sonia’s optimal budget, and the lack of evidence as to her minimum

reasonable needs, I would hold the trial court abused its discretion in its determination

of an award of spousal maintenance in the amount of $1,500 per month. There is simply

nothing in the record to support an award in that amount. Thus, I would sustain issue

two.

        Joe complains in his third issue that the 67%/33% division of the community estate

in favor of Sonia is an abuse of discretion. Joe focuses mostly on two sub-issues. First,

Joe questions whether fault in the break-up of the marriage was adequate justification for

the disproportionate division when the divorce was not based on fault but rather on

In the Matter of the Marriage of Elabd                                              Page 6
insupportability. Second, Joe argues that Sonia was awarded $13,323 more than she

requested in her pleadings from some of the accounts. While Joe argues that the evidence

of an extramarital relationship before the separation from Sonia is no more than

speculation, there is enough from which a fact finder could infer some fault in the break-

up of the marriage. And the fact that Sonia proposed one division of property and the

court awarded her more from one category of assets than she requested in her proposed

division is immaterial if the division of the community estate is nevertheless just and

right. Thus, I concur in the court’s decision to overrule issue three.

        Accordingly, I would reverse the portion of the trial court’s judgment that awards

spousal maintenance and render judgment that Sonia is not eligible for any spousal

maintenance, and otherwise affirm the trial court’s judgment. Because the Court affirms

the trial court’s judgment in its entirety, I respectfully dissent.



                                            TOM GRAY
                                            Chief Justice

Dissenting opinion issued and filed September 4, 2019




In the Matter of the Marriage of Elabd                                              Page 7
