John H. Trueheart, Jr. v. Denise L. Trueheart

Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed September 23, 2003 Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed September 23, 2003. In The Fourteenth Court of Appeals _______________ NO. 14-02-01256-CV _______________ JOHN H. TRUEHEART, JR., Appellant V. DENISE L. TRUEHEART, Appellee _______________________________________________________ On Appeal from the 306th District Court Galveston County, Texas Trial Court Cause No. 01FD2003 _______________________________________________________ M E M O R A N D U M   O P I N I O N In this divorce case, John Trueheart appeals a judgment in favor of appellee, Denise Trueheart. Specifically, he contends the trial court erred in (1) awarding appellate attorney’s fees; (2) ordering spousal maintenance; and (3) failing to order Denise to pay child support. We affirm in part and reverse and remand in part. FACTS A trial court granted a divorce to Denise based on cruel treatment. It granted primary custody of their sixteen-year-old son to John.[1] Denise was granted standard visitation and was not ordered to pay child support. Additionally, the trial court awarded Denise spousal maintenance of $2,500 per month for three years. Lastly, John was ordered to pay Denise $14,000 in attorney’s fees for trial, $10,000 in the event of appeal to the Court of Appeals, and $5,000 in the event of appeal to the Supreme Court. Appellate Attorney’s Fees In appellant’s first point of error, he contends the trial court erred in awarding appellate attorney’s fees when no evidence of such fees was presented.[2] The trial court, in its Conclusions of Law, stated that “[t]he Court awards attorney’s fees to Petitioner’s attorney, and the Court took into consideration the awarding of attorney’s fees to Petitioner in making the Court’s division of the property; so that there would be a fair and equitable division of the community estate, considering the conditions and needs of the parties and all the surrounding circumstances.” Generally, a court may award attorney’s fees in a proceeding to enforce a divorce decree. Cook v. Cameron, 733 S.W.2d 137, 141 (Tex. 1987); see McPherren v. McPherren, 967 S.W.2d 485, 492 (Tex. App.—El Paso 1998, no pet.). However, evidence must be presented as to the amount of time an appeal would take or a reasonable hourly rate. See Smith v. Smith, 757 S.W.2d 422, 425–26 (Tex. App.—Dallas 1988, writ denied); see also Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 890 (Tex. App.—Houston [1st Dist.] 1988, no writ). Here, counsel for appellee did not present evidence regarding the usual and customary fees for services to be rendered on appeal. Instead, appellee argues on appeal that the court took judicial notice of appellate attorney’s fees. However, it has been previously held that “[a] court may not adjudicate the reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence.” Cantu v. Moore, 90 S.W.3d 821, 826 (Tex. App.—San Antonio 2002, pet. denied) (citing Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied)). Because there is no evidence of appellate attorney’s fees, the trial court erred in awarding $10,000 for an appeal to the court of appeals and $5,000 for an appeal to the Texas Supreme Court. Although there is no evidence of a reasonable and necessary amount for appellate attorney’s fees, it is clear from the trial court’s conclusion of law that it considered appellate attorney’s fees of $15,000 in dividing the community estate fairly and equitably. Where error affects the trial court’s “just and right” property division, we must reverse and remand the community estate for a new property division. Jacobs v. Jacobs, 687 S.W.2d 731, 732–33 (Tex. 1985) (“Once reversible error affecting the ‘just and right’ division of the community estate is found, the court of appeals must remand the entire community estate for a new division;” it cannot strike the specific amount because division of the property is within trial court’s discretion); Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex. 1985); Henry v. Henry, 48 S.W.3d 468, 475 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see Sandone v. Miller-Sandone, No. 08-02-00433-CV, 2003 WL 21757506, at *3 (Tex. App.—El Paso July 31, 2003, n. pet. h.) (remanding where there was no evidence of attorney’s fees and no evidence of community estate’s value); cf. Zieba v. Martin, 928 S.W.2d 782, 791–92 (Tex. App.—Houston [14th Dist.] 1996, no writ) (remanding for new division where judgment awarded $10,000 less in attorney’s fees than the court specifically found was part of the fair and equitable division of the community estate). Accordingly, we reverse and remand for a new division of the property. Spousal Maintenance In John’s second and third issues,[3] he contends the trial court erred in ordering him to pay spousal maintenance because Denise failed to establish her “minimum reasonable needs” or that they could not be met with the amount awarded as her share of the community estate. Thus, John focuses his argument on the more narrow issue of minimum reasonable needs, not the broader issues of amount and duration of support. We review the granting of post-divorce spousal maintenance for an abuse of discretion. Lopez v. Lopez, 55 S.W.3d 194, 198 (Tex. App.—Corpus Christi 2001, no pet.); Alexander v. Alexander, 982 S.W.2d 116, 118 (Tex. App.—Houston [1st Dist.] 1998, no pet.). We view the evidence in the light most favorable to the trial court’s actions and indulge every legal presumption to favor of the judgment. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.—Texarkana 1998, no pet.). There is no abuse of discretion if some evidence of a substantive and probative nature supports the decision. Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). The trial court may award spousal maintenance in limited circumstances. See Tex. Fam. Code Ann. § 8.051 (Vernon Supp. 2003); Pickens v. Pickens, 62 S.W.3d 212, 214-15 (Tex. App.—Dallas 2001, pet. denied). In marriages lasting ten years or more, a spouse is eligible to seek spousal maintenance if the spouse lacks sufficient property to meet minimum reasonable needs and cannot support himself or herself due to (1) an incapacitating physical or mental disability, (2) a child in the home with a disability requiring substantial care and supervision, or (3) the lack of adequate earning ability. Tex. Fam. Code Ann. § 8.051(2) (Vernon Supp. 2003). A. Evidence of Minimum Reasonable Needs The term “minimum reasonable needs” is not defined in the Family Code, nor are there cases defining the term. Hale, 975 S.W.2d at 698. “Deciding what the minimum reasonable needs are for a particular individual is a fact-specific determination that should be made by the trial court on a case-by-case basis.” Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus Christi 2002, no pet.). John suggests that minimum reasonable needs must be proved by an itemized dollar amount of monthly expenses, citing Morris v. Morris, No. 07-99-0518-CV, 2001 WL 257809 (Tex. App.—Amarillo Mar. 15, 2001, no pet.) (not designated for publication). While a list of expenses is helpful, see Limbaugh v. Limbaugh, 71 S.W.3d 1, 14 (Tex. App.—Waco 2002, no pet.), there is no authority that only such a list suffices as evidence of minimum reasonable needs. See Amos, 79 S.W.3d at 750 (evidence of minimal reasonable needs included wife’s abilities, education, mortgage concerns, and business opportunities). Here, we have no itemization of Denise’s monthly expenses in evidence. However, the evidence reveals that Denise is a 48-year-old housewife with a high school diploma and no job skills. She has not been employed outside the home in the last 21 years. She has no typing or computer skills, and assessments at a local college reveal that she needs remedial math. She enrolled in remedial math courses at the college. She is trying to hone her typing skills by using a computer program at home. Apparently, the local college seldom offers lower skill level computer classes due to lack of demand. Further, Denise’s educational training is impeded by the strict and late hours she works in her entry-level position for Southwest Airlines. See Alexander v. Alexander, 982 S.W.2d 116, 118 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (working full time interfered with wife’s ability to attend college). Denise testified that it will take her at least three years to complete education requirements necessary to obtain and retain employment with salary potential higher than her current remuneration. The evidence further reveals that Denise previously failed the training program at Southwest Airlines for lack of job skills. At the time of trial, she was working on a six-month probationary period with Southwest, but had received “unsatisfactory” reviews. She was making $8.50 an hour, which, if she manages to keep her job and work full time, might accrue in an annual salary of $17,680. However, such a minimal salary does not support a conclusion that her minimum reasonable needs have been met. Cf. Hale, 975 S.W.2d at 698 (rejecting proposition that minimum wage is adequate to meet minimum reasonable needs in every case). Nor does a spouse’s mere employment preclude an award of spousal maintenance. Id. Moreover, Denise testified that the rent for her one-bedroom apartment is expensive in relation to her earning capacity. She contends that she will never again own a home because she could not afford the property taxes. Although she and John owned a dog when married, she cannot afford a pet deposit at her apartment. Additionally, Denise testified that she cannot afford the monthly payments if it becomes necessary to replace her 1998 pick-up truck. She shops for her clothes at resale shops and cuts her own hair. Further, the court found that Denise needs continued professional mental health counseling. The trial court concluded that Denise “was traumatized by [John’s] mental cruelty.” The evidence reveals that when Denise left her marriage, she feared for her safety. She was “beaten down” and “scared to death” by John’s sexual requirements of her, alcohol abuse, and controlling behavior that left her socially reclusive. This evidence supports the conclusion that she could not afford necessary treatment without spousal maintenance. Additionally, as in Hale, the evidence of Denise’s needs does “not include other essential needs that everyone has, such as her portion of health premiums, uncovered medical expenses, drugs and medicines, and the like.” 975 S.W.2d at 698. Finally, the case-specific nature of the criteria for determination of “minimum reasonable needs” would allow a trial court to determine needs with reference to the spouse’s activities during marriage. For instance, during Denise’s marriage, one of her main activities was woodworking. She made several pieces of furniture, including a kitchen hutch, bedside tables, and bunk beds, for their homes. However, the minimal space in Denise’s current apartment is not sufficient for her to keep most of her tools or perform such woodworking projects. For all the reasons stated above, we find there is some evidence sufficient for the trial court to determine Denise’s minimum reasonable needs. B. Consideration of Community Assets Next, John argues that the trial court did not consider whether the $290,000 of community property awarded to Denise meets her minimal reasonable needs. John, however, fails to mention that almost half the community assets awarded to Denise are not easily liquidated, such as life insurance policies held on their sons, or cannot be liquidated without significant penalty, such as individual retirement accounts. The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability for self-support has deteriorated over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin, 2002 no pet.). In considering assets awarded in the divorce, the law does not require a spouse to spend down long-term assets, liquidate all available assets, or incur new debt simply to obtain job skills and meet needs in the short term. See Limbaugh, 71 S.W.3d at 15 (no new debt to meet monthly needs); Alaghehband v. Abolbaghaei, No. 03-02-00445-CV, 2003 WL 1986777 at *5 (Tex. App.—Austin May 1, 2003, no pet.) (many assets were not liquid or short-term); see also Amos, 79 S.W.3d at 749–50 (tax-deferred community assets awarded to wife were unavailable to meet her needs); see, e.g., Langenbeck v. Langenbeck, No. 05-99-00801-CV, 2001 WL 51075 , at *5–6 (Tex. App.—Dallas 2001, no pet.) (not designated for publication) (award of costly home, which was bulk of community estate, to wife did not preclude spousal maintenance of $1,800 a month). Further, the evidence shows that the income generating potential of Denise’s community assets is minimal. We hold the trial court did not abuse its discretion in finding that Denise lacked sufficient assets, including property and sums awarded in the decree, to meet her minimal reasonable needs. Accordingly, we overrule issues two and three. Child Support In John’s last issue, he contends the trial court erred in failing to order Denise to pay child support. He relies on the presumption under the Family Code that child support must be ordered according to standard guidelines. We review a trial court’s ruling on child support for a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The test for abuse of discretion is whether the act was arbitrary or unreasonable. Id. A court may order an amount of support above or below the standard guidelines if the evidence rebuts the presumption that application of the guidelines is in the child’s best interest and the evidence justifies a variance. Tex. Fam. Code Ann. § 154.123(a) (Vernon Supp. 2003). In determining whether application of the guidelines would be unjust or inappropriate, the court considers many factors, including: • the ages and needs of the children; • the ability of the parents to contribute to the support of the children; • any financial resources available for the support of the children; • the amount of time of possession of and access to the children; • the amount of the obligee’s net resources, including earning potential; • whether either party has the managing conservatorship or actual physical custody of another child; • the amount of alimony or spousal maintenance actually and currently being paid or received by a party; • special or extraordinary educational, health care, or other expenses of the parties or of the children; • any other reason consistent with the best interest of the children, taking into consideration the circumstances of the parents. Tex. Fam. Code Ann. § 154.123(b) (Vernon Supp. 2003). In the instant case, John has primary custody of their sixteen-year-old son. There is evidence that John manipulated their son and engaged in conduct that alienated him from his mother. The child is extremely upset by the divorce and, by his own wishes, does not want to see Denise anymore. Denise is fearful of her son and has only seen him a few times since separating from John. Denise makes only $8.50 per hour and is currently on probationary status at her job. Although she has no steady income, she provides health insurance for the child. Denise has special educational and health needs: she needs job skill training and mental heath counseling to take better care of herself. In fact, she was awarded spousal maintenance for the same reasons. Consequently, we find that there was some probative and substantive evidence to support the court’s variance from the child support guidelines. See Dennis v. Smith, 962 S.W.2d 67, 72 (Tex. App.—Houston [1st Dist.] 1997, pet. denied); Sanchez v. Sanchez, 915 S.W.2d 99, 102–03 (Tex. App.—San Antonio 1996, no writ). Therefore, we overrule John’s final point of error. The judgment of the trial court is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed September 23, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. [1] The two other children of the marriage are over age eighteen. [2] Appellant also argues that the unconditional award of appellate attorney’s fees is improper; however, we need not address this issue based on our disposition of the first sub-issue. [3] In his third issue, John seeks repayment of spousal maintenance should we sustain issue two.