in the Matter of the Marriage of German Neftali Contreras and Vita Gisela Contreras and in the Interest of D.C, J.C., and D.C., Children
Date Filed2022-12-29
Docket13-21-00063-CV
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
NUMBER 13-21-00063-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI â EDINBURG
IN THE MATTER OF THE MARRIAGE OF
GERMAN NEFTALI CONTRERAS AND VITA GISELA CONTRERAS
AND IN THE INTEREST OF D.C., J.C., AND D.C., CHILDREN
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Longoria
Appellant German Neftali Contreras appeals from a final divorce decree dissolving
his marriage to Vita Gisela Contreras. By three issues, which we reorganize and re-
number, German challenges the trial courtâs imposition and assessment of (1) child
support, (2) support for an adult disabled child, and (3) spousal maintenance. See TEX.
FAM. CODE ANN. §§ 154.001, .302(a). We affirm in part and reverse and remand in part.
I. BACKGROUND
A. Trial Testimony
German and Vita were married in February 1998 and separated in October 2019.
During their marriage, the parties had three children: Damaris, an adult child born in 1998,
and J.C. 1 and D.C., minor children born in 2002 and 2005, respectively.
At a September 15, 2020 hearing, the parties stipulated that they would be joint
managing conservators of the minor children; that Vita would retain the right to designate
the primary residence of the minor children without regard to geographic restriction; that
German would be awarded standard visitation of the minor children; and that German
would be ordered to pay child support and medical support for the minor children in an
amount that had not yet been determined.
German testified that he had been married to Vita for twenty-two years, and that
when they married, he told her â[Y]ou take care of the kids, and I [wi]ll take care of the
payments.â Vita was a housewife until she became employed as a provider for Damaris
when Damaris turned eighteen. German testified that Damaris â[is] in a wheelchair,â
âcan[not] walk, and she can[not] move her hands,â and has had this condition 2 â[s]ince
she was born.â 3 German testified that Damaris can get a job but would have to have
1 To protect the identity of the minor children, we refer to the children and their relatives by their
initials or an alias. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(a).
2 German also testified that the name of Damarisâs diagnosis or condition was called Larsen, but
he admitted he was not certain. See generally MedlinePlus, Larsen Syndrome, U.S. Natâl Libr. of Med.,
https://medlineplus.gov/genetics/condition/larsen-syndrome (last visited Dec. 1, 2022) (defining âLarsen
syndromeâ as a âdisorder that affects the development of bones throughout the bodyâ).
3 On cross-examination, German testified that Damaris was born with her physical handicap.
2
âsupervision, like somebody taking her to work and stuffâ if she were to live on her own.
Damaris receives âabout $700 per month from Social Security benefits,â and attends the
University of Texas Rio Grande Valley (UTRGV) through financial aid and was on track
to graduate with a fine arts degree in 2021. German noted that Vita transports Damaris
to UTRGV in a van that was purchased specifically to transport Damaris, which has a
ramp. German admitted that he has never paid for Damarisâs tuition and has provided no
money to her other than a one-time cost for repairing her wheelchair.
German further testified that he currently works doing construction for his sister-in-
law at her business, Kingdom Homes, since returning to Hidalgo County in November
2019. Prior to his return, German had lived and worked in Louisiana since 2017. German
testified that he earned more income in Louisiana, ânot every month, but sometimes it
would be around [$]5,000, or [$]4,000.â The following colloquy occurred between German
and his counsel regarding Germanâs relocation to Hidalgo County:
[Counsel:] And again, explain to the Court why it is that you
would come to Hidalgo County and earn less
money?
[German:] Because I wanted to spend time with my family,
my kids, myâmy mother.
[Counsel:] And did this happen only after you knew of Vitaâs
desire to get divorced?
[German:] Yes. I told her . . . . I told her that I was done with
Louisiana and that was it.
[Counsel:] And this average that you gave and what you
were earning in Louisiana, four to five thousand
dollars a month, would that be the average for
the entire time you were working up in
Louisiana?
3
[German:] Yes.
According to German, as of 2020 he earns an average of $2,300 per month. In addition,
German testified that his 2019 tax return indicated he earned approximately $14,700 for
2019, and that he had declared all the income he had earned in his 2019 tax return.
Regarding his expenses, German testified that he pays $830 per month for a new
truck. He also pays for his phone bill, and âjust small bills, like, as far as credit cards, but
it[ is] not much.â German had been living at his motherâs house but moved âbecause
of . . . COVIDâ and was currently living at his sisterâs house. German admitted that he
does not pay rent nor spend money on food because his mother cooks. German also
testified that he currently provides Vita $900 a month, which she uses to pay the mortgage
for the house she and the children live in. German originally provided $1,500 per month
to Vita when they separated in October 2019 through January 1, 2020. He stated, âAt first
I was giving her [$]1[,]500, and then I came down to [$]1[,]200, and now I[ a]m paying
[$]900 a month.â
Vita testified that Damaris was her first-born child, has arthrogryposis 4, and cannot
walk or lift her hands. Vita has been Damarisâs caregiver since Damaris was born and
provides her 24-hour assistance at home. Vita stated, âAs soon as [Damaris] wakes up, I
lift her from . . . the bed to the chair, transfer her. Then [Damaris] goes to the restroom.
Transfer [sic] from the chair to the toilet. Then . . . shower her.â Vita also drives Damaris
4 See generally MedlinePlus, Distal Arthrogryposis type 1, U.S. Natâl Libr. of Med.,
https://medlineplus.gov/genetics/condition/distal-arthrogryposis-type-1 (last visited Dec. 1, 2022) (defining
âDistal Arthrogryposis type 1â as a âdisorder characterized by joint deformities (contractures) that restrict
movement in the hands and feetâ).
4
to UTRGV and assists her in attending her college courses by, among other things, setting
up Damarisâs materials for the classroom and helping her use the restroom. According to
Vita, Damarisâs van is paid for by Damarisâs supplemental security income (SSI). Damaris
receives $704.70 every month in SSI, and $511.69 is used from that money to pay for the
van. Damaris uses the rest of the money for gas and food. In addition, Damaris utilizes
money from her college financial aid to purchase school supplies and books.
Vita further testified that she has worked as Damarisâs provider since Damaris
turned 18, is paid about $1,080 per month, and works eighteen hours per week. According
to Vita, being Damarisâs provider prevents her from finding other employment. Vita stated
I can find a job, but who[ i]s going to take care of Damaris? Who[ i]s going
to pay them to take care of her? Like, if I make, like, $1,000, I[ a]m going to
spend it on somebody else to care for her . . . . Yeah. Who[ i]s going to take
her to school? Who[ i]s going to drive her to school? Who[ i]s going to
shower her, you know?
Vita graduated high school and attended one year of college but has received no training
for any profession or job. In terms of monthly expenses, Vita pays for her own car,
insurance for her vehicle and Damarisâs van ($160), water ($60), electricity ($250 in
summer months, then $150), and cellphones for herself and her children. Vita receives
$340 per month in food stamps that she uses to pay for groceries. Vita also pays the
mortgage, which costs $918 per monthâshe uses the $900 she receives from German
to pay it and pays the remaining $18 herself. Vita was seeking $1,000 in spousal support
to pay her âbills and the stuff that [she] need[s], like . . . the mainly basics, like toilet paper,
everything.â Vita was seeking $500 per month in support for Damaris âjust to replace the
[$]500 that [Damaris] pay[s] on her vanâ so that Damaris âcan have her SSI back.â Vita
5
testified, âI want to keep the house for Damaris. It[ is]âDamaris is going to be a lifetime.
She[ is] going to stay with me. Like, . . . she will never be independent . . . . [Damaris] will
need to pay somebody to take care of her, maybe half [a] day.â
Regarding Germanâs current employment, Vita expressed that she believed
German came back to work in Hidalgo County from Louisiana â[b]ecause he does[ not]
want to make money to pay child support,â âhe does[ not] care,â âhe never talk[s] to the
kids,â and âhe does[ not] care about them.â Vita testified that since returning to Hidalgo
County in September 2019, German had only visited Damaris and J.C. twice, and he has
not spoken to D.C. since May 2020. According to Vita, she had access to Germanâs
Chase bank account and stated that German was generating $8,000 in monthly income
in 2018. Vita further testified that German deposited $10,000 a month in the Chase bank
account in 2019. In addition, Vita testified that German is currently self-employed, paid in
cash, and does not use his Chase account. Vita opined that German was earning more
money than when he worked in Louisiana and did not believe that he was making less.
Although she admitted to not having proof of her assertion, she expressed, âHe[ i]s a hard
working man. I know that for sure. He wantsâhe loves money. I know that.â
Damaris testified that Vita has cared for her substantially since she turned eighteen
to the present. Damaris stated that Vita takes her to school and assists her in the
classroom and with homework. According to Damaris, Vita helps her use the restroom,
take a shower, change clothes, style her hair, and get readyâamong other things.
Damaris prefers Vita as her provider because she is not comfortable with other people
helping her. Damaris testified, â[A] lot of the time [other providers] do[ not] really know
6
how, and even if you tell them, they w[ill ]n[o]t do it correctly.â Damaris testified that the
SSI she receives is not enough to pay for all her needs and expenses and she is left with
$100â200 after making payments on the van. Damaris does not receive any food stamps
or any other aid from organizations. Vita helps Damaris financially and provides her $100
per month to pay other expenses that Damaris cannot. Damaris tried finding work through
the Texas Workforce Commission but had no luck finding anything âthat worksâ and
acknowledged that âa lot of jobs require you to do physical stuffâ and she âcan[not] really
do any physical labor.â
Damaris acknowledged that German had not spent a lot a time with her or her
siblings since returning to Hidalgo County from Louisiana, and she was spending even
less time with German since COVID.
B. Final Divorce Decree
The final decree of divorce, rendered on December 12, 2020, ordered German to
pay $900 per month in child support until one of the minor children becomes ineligible,
and $720 per month thereafter until the other minor child becomes ineligible. The decree
further stated that
Damaris Contreras, an adult child of this marriage, requires substantial care
and personal supervision because of a mental or physical disability and will
not be capable of self-support, that the disability existed or its cause was
known to exist before or on the childâs eighteenth birthday, that payments
for the support of this child should be continued for an indefinite period, and
that both parents have a duty to support the child.
See id. § 154.302. Accordingly, the decree ordered German to pay $500 per month to
Damaris âuntil the first month following the death of [Damaris] or further order modifying
this child support.â The decree further stated that âVita . . . is eligible for maintenance
7
under the provisions of Texas Family Code chapter 8.â Accordingly, the decree ordered
German to pay as maintenance $1,000 per month to Vita for thirty-six months, or
âuntil . . . the earliest of one of the following events occurs: 1. death of either [German] or
[Vita]; 2. remarriage of Vita . . .; or 3. further orders of the Court affecting the spousal
maintenance obligation, including a finding of cohabitation by Vita . . . .â
German filed a motion for new trial, which was denied by the trial court. This appeal
followed.
II. STANDARD OF REVIEW
âA courtâs order of child support will not be disturbed on appeal unless the
complaining party can show a clear abuse of discretion.â Iliff v. Iliff, 339 S.W.3d 74, 78(Tex. 2011) (quoting Worford v. Stamper,801 S.W.2d 108, 109
(Tex. 1990) (per curiam)); see also Rodriguez v. Rodriguez,860 S.W.2d 414, 415
(Tex. 1993). In addition, we also review a trial courtâs decision to award spousal maintenance for an abuse of discretion. Sherman v. Sherman,650 S.W.3d 897
, 899 (Tex. App.âFort Worth 2022, no pet.).
âA trial court abuses its discretion when it acts arbitrarily or unreasonably, without
reference to guiding rules or principles.â Iliff, 339 S.W.3d at 78(citing Worford,801 S.W.2d at 109
, and then citing Downer v. Aquamarine Operators, Inc.,701 S.W.2d 238
, 241â42 (Tex. 1985)). âUnder this standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error but are relevant factors in determining whether the trial court abused its discretion.â Coburn v. Moreland,433 S.W.3d 809, 823
(Tex.
App.âAustin 2014, no pet.). âIn determining whether the trial court abused its discretion,
we consider whether the trial court had sufficient evidence upon which to exercise its
8
discretion and, if so, whether it erred in the exercise of that discretion.â Id.(citing In re W.C.B.,337 S.W.3d 510
, 513 (Tex. App.âDallas 2011, no pet.)).
When conducting a legal sufficiency review, we credit favorable evidence if a
reasonable factfinder could do so and disregard contrary evidence unless a reasonable
factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827(Tex. 2005); Brown v. Brown,236 S.W.3d 343, 348
(Tex. App.âHouston [1st Dist.] 2007, no pet.). We consider the evidence in the light most favorable to the finding under review, and we indulge every reasonable inference that would support the finding. City of Keller,168 S.W.3d at 822
. In reviewing for factual sufficiency, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp.,772 S.W.2d 442, 445
(Tex. 1989). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re L.A.F.,270 S.W.3d 735
, 739 (Tex. App.âDallas, 2008 pet. denied) (citing Cain v. Bain,709 S.W.2d 175, 176
(Tex. 1986) (per curiam)). In this case, the trial court made no findings of fact, and the parties requested none. See TEX. R. CIV. P. 296, 297. 5 Therefore, âwe assume the trial court made all necessary findings to support its judgment and will affirm if the judgment can be upheld on any legal theory that is supported by the evidence.â In re A.A.T.,583 S.W.3d 914
, 921 (Tex. App.âEl Paso, 2019, no pet.). â[T]he trial judge is best able to observe and assess the witnessesâ demeanor and credibility, and to sense the âforces, powers, and influencesâ that may not be apparent from merely reading the record on appeal.â In re A.L.E.,279 S.W.3d 424, 427
(Tex. App.âHouston [14th Dist.] 2009, no
5 We note that the Texas Family Code requires the trial court to make specific findings in child
support orders in certain circumstances not applicable to this case. TEX. FAM. CODE ANN. § 154.130.
9
pet.). We, therefore, defer to the trial courtâs judgment in matters involving factual
resolutions and any credibility determinations that may have affected those resolutions.
George v. Jeppeson, 238 S.W.3d 463, 468(Tex. App.âHouston [1st Dist.] 2007, no pet.); see also In re Marriage of Grossnickle,115 S.W.3d 238, 248
(Tex. App.âTexarkana,
2003 no pet.) (âThe trial court, as sole judge of the credibility of witnesses, may choose
whether to believe a particular witness.â) (cleaned up).
III. CHILD SUPPORT
In his first issue, German argues that there is insufficient evidence supporting the
trial courtâs assessment of child support. In connection to this issue, German claims that
the trial courtâs order assessed child support âabove the guidelinesâ pursuant to § 154.123
of the Texas Family Code. German also raises other sub-issues in which he argues that
Vita failed to plead for child support âabove the guidelinesâ; that this issue was not tried
by consent; and that the trial court abused its discretion in ordering child support âabove
the guidelinesâ pursuant to § 154.123 and § 154.126 of the Texas Family Code. We first
address Germanâs arguments regarding sufficiency and whether the trial court assessed
child support âabove the guidelinesâ because it is dispositive.
A. Applicable Law
A trial court has broad discretion to determine child support awards within the
guidelines of the family code. See TEX. FAM. CODE ANN. §§ 154.121â.123; Rumscheidt v.
Rumscheidt, 362 S.W.3d 661, 667 (Tex. App.âHouston [14th Dist.], 2011 no pet.) (âThe
trial court has broad discretion setting and modifying child-support payments.â) (cleaned
up).
10
For purposes of determining child support liability, the trial court shall calculate net
resources, including all wage and salary income and other compensation for personal
services, interest, dividends and royalty income, self-employment income, net rental
income, and all other income actually being received. See TEX. FAM. CODE ANN.
§ 154.062(a), (b). âCourts may calculate net resources on imprecise information.â Ayala
v. Ayala, 387 S.W.3d 721, 727(Tex. App.âHouston [1st Dist.] 2011, no pet.) (cleaned up). However, âthere must be some evidence of a substantive and probative character of net resources in order for the court to discharge this duty.âId.
(quoting Newberry v. Bohn- Newberry,146 S.W.3d 233, 236
(Tex. App.âHouston [14th Dist.] 2004, no pet.)).
The percentage guidelines are set at â25% of Obligorâs Net Resourcesâ for two
children, and â20% of Obligorâs Net Resourcesâ for one child. TEX. FAM. CODE ANN.
§ 154.125(b). However, the trial court may order periodic payments in an amount other
than that established by the guidelines if the evidence rebuts the presumption that
application of the guidelines is in the best interest of the child and justifies a variance from
the guidelines. Id. §§ 154.122(b) (âA court may determine that the application of the
guidelines would be unjust or inappropriate under the circumstances.â); 154.123(a); see
also id. § 154.123(b) (providing list of factors trial courts shall consider in determining that
child support in an amount established by the guidelines would be unjust or
inappropriate).
Section 154.066 of the Texas Family Code provides that a trial court may order a
parent to pay child support beyond the amount the parentâs income would oridinarily
indicate under the guidelines if the parent could potentially earn more money but has
11
intentionally chosen not to. TEX. FAM. CODE ANN. § 154.066; In re N.T., 335 S.W.3d 660,
666 (Tex. App.âEl Paso, 2011, no pet.) (cleaned up).
âWhile the trial court may consider whether [an] obligor [parent] is attempting to
avoid child support by becoming or remaining unemployed or underemployed as a factor
in its child support determination, such proof is not required for a court to be able to set
child support based on earning potential.â Iliff, 339 S.W.3d at 81. âBut to support a finding of intentional underemployment, it is not enough to simply establish that the obligor is failing to maximize his potential.â Trumbull v. Trumbull,397 S.W.3d 317, 321
(Tex. App.â Houston [14th Dist.] 2013, no pet.). âBy statute, the obligee must show that the actual earnings of the obligor are âsignificantly lessâ than his earnings potential.âId.
(citing TEX. FAM. CODE ANN. § 154.066; Iliff,339 S.W.3d at 82
(âTrial courts should be cautious of
setting child support based on earning potential in every case where an obligor makes
less money than he or she has in the past.â)).
In addition, a court may order additional child support depending on the income of
the parties and proven needs of the children. See TEX. FAM. CODE § 154.126(a). However,
§ 154.126 only applies where the obligorâs monthly net resources exceed $9,200. 6 Id.
B. Discussion
As previously mentioned, the trial courtâs order set Germanâs child support at $900
per month until one of the minor children becomes ineligible, and $720 per month
thereafter until the other minor child becomes ineligible. It is undisputed that German is
6 Under the guidelines effective September 1, 2019, the amount of the net-resources cap appliable
here is $9,200. See 44 Tex. Reg. 3559, 3559 (July 12, 2019) (Office of the Attây Gen., Announcement of
Adjustment Required by Texas Family Code § 154.125); see also TEX. FAM. CODE § 154.125.
12
father to two minor children. Assuming the trial court followed the guidelines, and thus did
not impose a variance pursuant to § 154.123(a), the trial court could have impliedly found
Germanâs monthly net resources to be $3,600âas 25% of $3,600 is $900 and 20% of
$3,600 is $720âor that he was underemployed and had the potential to earn this amount.
See TEX. FAM. CODE ANN. §§ 154.066(a), 154.123(a), 154.125(b).
There is no evidence in the record directly disputing Germanâs current earnings,
which he testified was $2,300 per month. Though Vita opined that German was earning
more money than when he worked in Louisiana and did not believe that he was making
less, she nevertheless admitted to not having proof of her assertion. However, in making
its child support determination, the trial court could have invoked the authority of
§ 154.066, which states that a child support order may be based on the earning potential
of the obligor rather than his actual income, â[i]f the actual income of the obligor is
significantly less than what the obligor could earn because of intentional unemployment
or underemployment.â See id. § 154.066(a). German testified that he worked in Louisiana
from 2017 prior to his return to Hidalgo County in November 2019 and admitted to earning
an average of $4,000 to $5,000 a month. Based on Germanâs testimony, the trial court
could have found that German previously earned $5,000 per month, which under the 2020
Tax Chart results in net resources above $3,600 for self-employed and employed
persons. See id. § 154.061. While the record does not contain documentary evidence of
bank statements and income tax returns, the trial court âmay calculate net resources on
âimprecise information.ââ Ayala, 387 S.W.3d at 727. Regarding the conflicting testimony
of German and Vita, the trial court, as sole judge of the credibility of witnesses, may
13
choose whether to believe a particular witness. See Grossnickle, 115 S.W.3d at 248.
In addition, German testified that he returned to Hidalgo County from Louisiana
only after he knew of Vitaâs desire to divorce. Though German testified that one of the
reasons he returned to Hidalgo County was that he wanted to spend time with his children,
Vita and Damaris both testified that German had not spent much time with his children
upon his return. Here, the trial court could have found that German was underemployed
for purposes of avoiding child support. See Iliff, 339 S.W.3d at 81.
Accordingly, the evidence is legally and factually sufficient to support an implied
finding that Germanâs current actual income was significantly less than what German
could earn. See City of Keller, 168 S.W.3d at 822, 827; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270 S.W.3d at 739. Having found the evidence sufficient to support the trial courtâs assessment of child support within the child support guidelines, we cannot say that the trial court abused its discretion. See Coburn,433 S.W.3d at 823
. In addition,
we do not find the amount of child support ordered by the trial court constituted a variance
from the guidelines pursuant to § 154.123(a), and we decline to address that sub-issue.
See TEX. FAM. CODE ANN. § 154.123(a). Moreover, we do not find that the trial court
ordered additional child support under § 154.126, and we decline to address that sub-
issue. See id. § 154.126. We overrule Germanâs first issue.
IV. SUPPORT FOR DISABLED CHILD
In his second issue, German argues there was insufficient evidence to support the
trial courtâs imposition and assessment of support of an adult disabled child. In connection
to this claim, German raises several sub-issues that we address separately.
14
A. Applicable Law
Section 154.302 of the Texas Family Code provides:
(a) The court may order either or both parents to provide for the support
of a child for an indefinite period and may determine the rights and
duties of the parents if the court finds that:
(1) the child, whether institutionalized or not, requires substantial
care and personal supervision because of a mental or
physical disability and will not be capable of self-support; and
(2) the disability exists, or the cause of the disability is known to
exist, on or before the 18th birthday of the child.
(b) A court that orders support under this section shall designate a
parent of the child or another person having physical custody or
guardianship of the child under a court order to receive the support
for the child. The court may designate a child who is 18 years of age
or older to receive the support directly.
TEX. FAM. CODE ANN. § 154.302(a), (b). In determining the amount of support to be paid
after a childâs eighteenth birthday, the specific terms and conditions of that support, and
the rights and duties of both parents with respect to the support of the child, the court
shall determine and give special consideration to:
(1) any existing or future needs of the adult child directly related to the
adult childâs mental or physical disability and the substantial care and
personal supervision directly required by or related to that disability;
(2) whether the parent pays for or will pay for the care or supervision of
the adult child or provides or will provide substantial care or personal
supervision of the adult child;
(3) the financial resources available to both parents for the support, care,
and supervision of the adult child; and
(4) any other financial resources or other resources or programs
available for the support, care, and supervision of the adult child.
Id. § 154.306.
15
B. Discussion
1. Existence of Disability Before Eighteenth Birthday
German argues that the evidence was insufficient to demonstrate that Damarisâs
disability existed before her eighteenth birthday. See id. § 154.302(a)(2). The record
contains testimony from German, Vita, and Damaris establishing that Damaris has a
physical disability in which she cannot walk or use her hands and utilizes a wheelchair.
German himself testified that Damaris was born with her condition and physical handicap.
His testimony was corroborated by Vitaâs testimony wherein she stated, â[Damaris] has
arthrogryposis. She can[not] walk. She can[not] lift her hands. I[ have been] her caregiver
since she was born.â Thus, there was legally and factually sufficient evidence
demonstrating an implied finding that Damarisâs disability existed, or the cause of her
disability was known to exist, before her eighteenth birthday. See id.; see also City of
Keller, 168 S.W.3d at 822, 827; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270
S.W.3d at 739. We overrule this sub-issue.
2. Capability of Self-Support
German next argues that the evidence was insufficient to demonstrate that
Damaris is incapable of self-support. As previously mentioned, testimony by German,
Vita, and Damaris all established that Damaris cannot walk or use her hands and utilizes
a wheelchair. The evidence established that Vita provides 24-hour assistance for Damaris
at home by helping Damaris use the restroom, take a shower, change clothes, style her
hair, and get ready. Vita also drives Damaris to UTRGV and assists her in the classroom
and with homework. Vita testified, âI want to keep the house for Damaris. It[ is]âDamaris
16
is going to be a lifetime. She[ is] going to stay with me. Like, . . . she will never be
independent.â
In his brief, German points out that Damaris has a âvan that is custom fitted to meet
her needs;â however, Damaris testified that the van was modified for her to be a
passenger, not a driver. Thus, the record shows that Damaris cannot drive the van herself
and relies on other persons to drive her van. German also points to testimony
demonstrating that Damaris was on track to graduate with bachelorâs degree in fine arts
in 2021. However, Damaris has been able to accomplish this feat through the continued
support of Vita. German calls attention to Damarisâs testimony stating that she hopes to
find employment online or through the Texas Workforce Commission. However, German
testified that Damaris had never had any formal employment. In addition, Damaris
testified that she tried finding work through Texas Workforce Commission but had not
found anything âthat worksâ and acknowledged that âa lot of jobs require you to do physical
stuffâ and she âcan[not] really do any physical labor.â Furthermore, the evidence
established that the SSI benefits that Damaris receives is not enough to pay for all her
needs and expenses, that Damaris does not receive food stamps or any other aid from
organizations, and that Vita pays for expenses that Damaris cannot pay for.
Although the evidence established that Damaris is working to obtain a degree that
could help her to someday seek employment, she is not currently able to support herself
with a job. Thus, there was legally and factually sufficient evidence to support an implied
finding that the Damaris ârequires substantial care and personal supervision because of
a mental or physical disability and will not be capable of self-support.â See TEX. FAM. CODE
17
ANN. § 154.302(a)(1); see also City of Keller, 168 S.W.3d at 822, 827; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270 S.W.3d at 739; see also In re W.M.R., No. 02-11-00283- CV,2012 WL 5356275
, *5 (Tex. App.âFort Worth, November 1, 2012, no pet.) (mem. op.) (finding sufficient evidence to support a finding that an adult disabled child requires substantial care and personal supervision despite evidence showing that the adult disabled child did not need constant supervision); In re D.C., No. 13-15-00486-CV,2016 WL 3962713
, *8 (Tex. App.âCorpus ChristiâEdinburg, July 21, 2016, pet. denied) (mem.
op.) (finding the evidence established that an adult disabled child was not currently able
to support himself with a job despite working to obtain a masterâs degree that would help
him to someday seek employment.). We overrule this sub-issue.
3. Section 154.306 Factors
German next argues that âthe record is void of any evidence used by the trial court
as to the factors it used or considered to arrive at the amount of $500.00â and cites to
§ 154.306 of the Texas Family Code. We disagree. The record shows that the trial court
was presented with ample evidence regarding each of the four factors enumerated in the
statute. German, Vita, and Damaris testified extensively regarding Damarisâs âexisting
[and] future needsâ as well as the âsubstantial care and personal supervision directly
required by or related toâ her condition, see id. § 154.306(1); Vita testified about how she
provides substantial 24-hour care and personal supervision to Damaris and expects to
continue to be Damarisâs provider in the future, see id. § 154.306(2); German and Vita
testified regarding their financial resources, see id. § 154.306 (3); and Vita and Damaris
testified as to other financial resources, namely Damarisâs SSI benefits that are available
18
to pay for Damarisâs expenses. See id. § 154.306(4); see also Thompson v. Smith, 483
S.W.3d 87, 96(Tex. App.âHouston [1st Dist.] 2015, no pet.) (finding that âthe trial court had sufficient evidence before it to consider the [§] 154.306 factors in exercising its discretion to impose the support obligationâ). In particular, we note that Vita testified that she was seeking $500 in support for Damaris âjust to replace the [$]500 that [Damaris] pay[s] on her vanâ so that Damaris âcan have her SSI back.â We also note Damarisâs testimony that her SSI benefits are not enough to pay for all her needs and expenses, and she is left with $100â200 after making payments on the van. Thus, there was legally and factually sufficient evidence to support an implied finding that the four factors under § 154.306 justify Germanâs support obligation for his disabled child. See TEX. FAM. CODE ANN. § 154.306; see also City of Keller,168 S.W.3d at 822, 827
; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270 S.W.3d at 739. We overrule this sub-issue.
4. Party Responsible for Support Payment
In his last sub-issue, German argues that âthe record is devoid of any finding
stating which party is responsible for said payment as required by the Texas Family Codeâ
and cites to § 154.302. The divorce decree specifically orders German to pay $500 in
support directly to Damaris, and the trial court had the discretion to do so under § 154.302.
See TEX. FAM. CODE ANN. § 154.302(a) (âThe court may order either or both parents to
provide for the support of a [disabled] child for an indefinite period . . . .â). Section 154.302
does not require the trial court to make any specific findings with respect to which parent
is ordered to provide support for a disabled child; it only requires the trial court make the
appropriate findings required by § 154.302(a)(1), (2), and in this case, the trial court did
19
so. See id. We overrule Germanâs sub-issue.
Accordingly, we conclude that there is legally and factually sufficient evidence to
support the trial courtâs imposition and assessment of support for an adult disabled child.
See City of Keller, 168 S.W.3d at 822, 827; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270 S.W.3d at 739. Having found the evidence sufficient to support the trial courtâs imposition and assessment of support for an adult disabled child, we cannot say that the trial court abused its discretion. See Coburn,433 S.W.3d at 823
. We overrule Germanâs
entire second issue.
V. SPOUSAL SUPPORT
In his third issue, German argues there was insufficient evidence to support the
trial courtâs imposition and assessment of spousal maintenance. In connection to this
claim, German raises several sub-issues that we address separately.
A. Applicable Law
Spousal maintenance is an award of âperiodic payments from the future income of
one spouse for the support of the other spouse.â See TEX. FAM. CODE. ANN. § 8.001(1).
The purpose of spousal maintenance is âto provide temporary and rehabilitative support
for a spouse whose ability for self-support is lacking or has deteriorated over time while
engaged in homemaking activities and whose capital assets are insufficient to provide
support.â OâCarolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.âAustin 2002, no pet.).
Texas Family Code § 8.051 governs a spouseâs eligibility for spousal maintenance.
See TEX. FAM. CODE ANN. § 8.051. The court may order maintenance for either spouse
only if the spouse seeking maintenance will lack sufficient property, including the spouseâs
20
separate property, on dissolution of the marriage to provide for the spouseâs reasonable
needs and:
(A) is unable to earn sufficient income to provide for the spouseâs
minimum reasonable needs because of an incapacitating physical or
mental disability;
(B) has been married to the other spouse for 10 years or longer and
lacks the ability to earn sufficient income to provide for the spouseâs
minimum reasonable needs; or
(C) is the custodian of a child of the marriage of any age who requires
substantial care and personal supervision because of a physical or
mental disability that prevents the spouse from earning sufficient
income to provide for the spouseâs minimum reasonable needs.
Id. § 8.051(2)(A)â(C). The term âminimum reasonable needsâ is not statutorily defined.
Slicker v. Slicker, 464 S.W.3d 850, 860(Tex. App.âDallas 2015, no pet.) (citing Cooper v. Cooper,176 S.W.3d 62, 64
(Tex. App.âHouston [1st Dist.] 2004, no pet.)). Instead, determining the âminimum reasonable needsâ is a fact-specific inquiry, which courts determine on a case-by-case basis. Slicker,464 S.W.3d at 860
(citing Amos v. Amos,79 S.W.3d 747, 749
(Tex. App.âCorpus ChristiâEdinburg 2002, no pet.)).
Likewise, the term âcustodianâ as used in § 8.051(2)(C) is not statutorily defined.
âIf a statute uses a term with a particular meaning or assigns a particular meaning to a
term, we are bound by the statutory usage.â TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 439(Tex. 2011). âUndefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is apparent from the termâs use in the context of the statute, we apply that meaning.âId.
Because the Texas Family
Code does not define âcustodian,â we must apply its plain meaning. âCustodianâ means
â[a] person or institution that has charge or custody (of a child, property, papers, or other
21
valuables); GUARDIAN.â Custodian, BLACKâS LAW DICTIONARY (11th ed. 2019)
(emphasis added). Furthermore, âchargeâ means â[a] person or thing entrusted to
anotherâs care.â Charge, BLACKâS LAW DICTIONARY (11th ed. 2019) (emphasis
added). And in the family-law context, âcareâ means â[t]he provision of physical or
psychological comfort to another.â Care, BLACKâS LAW DICTIONARY (11th ed. 2019).
Texas Family Code § 8.053(a) provides:
(a) It is a rebuttable presumption that maintenance under Section
8.051(2)(B) is not warranted unless the spouse seeking maintenance
has exercised diligence in:
(1) earning sufficient income to provide for the spouseâs minimum
reasonable needs; or
(2) developing the necessary skills to provide for the spouseâs
minimum reasonable needs during a period of separation and
during the time the suit for dissolution of the marriage is
pending.
TEX. FAM. CODE ANN. § 8.053(a) (emphasis added). â[U]nder the plain language of
[§] 8.053(a), the statutory presumption only applies to maintenance sought pursuant to
[§] 8.051(2)(B).â Kelly v. Kelly, 634 S.W.3d 335, 366 (Tex. App.âHouston [1st Dist.] 2021,
no pet.) (cleaned up). âIf the spouse seeks maintenance pursuant to either [§] 8.051(2)(A)
or (C), the presumption in [§] 8.053(a) does not apply and the spouse is not required to
present evidence that they have exercised diligence in earning sufficient income or in
developing the necessary skills to provide for their minimum reasonable needs.â Id.
After a court deems a spouse eligible to receive spousal maintenance, it then
considers several factors in determining the nature, amount, duration, and manner of
periodic payments. See TEX. FAM. CODE. ANN. § 8.052. These factors include: the financial
22
resources, age, employment history, earning ability, and physical and emotional condition
of the spouse seeking maintenance; the time necessary to acquire sufficient education or
training to enable the spouse seeking maintenance to earn sufficient income; the
contribution by one spouse to the education, training, or increased earning power of the
other spouse; the contribution of a spouse as homemaker; any history or pattern of family
violence; and the comparative financial resources of the spouses. See id.
A court may not order maintenance that requires an obligor to pay monthly more
than the lesser of $5,000 or 20 percent of the spouseâs average monthly gross income.
Id. § 8.055(a). Gross income includes âwage and salary income and other compensation
for personal services,â âself-employment income,â and other specified types of âincome.â
Id. § 8.055(aâ1). The statute also identifies certain items not included in gross income,
such as âreturn of principal or capital,â âaccounts receivable,â and benefits provided by
certain government programs. Id.
B. Discussion
1. Eligibility Under § 8.051(2)(C)
Under the divorce decree, the trial court found that Vita was eligible to receive
spousal maintenance. The divorce decree did not specify which subsection of § 8.051
that the trial court based its determination. See id. § 8.051. However, neither § 8.051(1)
nor § 8.051(2)(A) are implicated by the facts of this case. We conclude that the trial court
could have impliedly found that Vita was eligible for spousal maintenance under
§ 8.051(2)(C). See In re A.A.T., 583 S.W.3d at 921.
The divorce decree ordered German to provide support for his disabled child. As
23
previously mentioned in our discussion of Germanâs second issue, there is legally and
factually sufficient evidence to establish that Damaris requires substantial care and
personal supervision due to her physical disability. See id. § 8.051(2)(C). In addition, the
evidence established that Damaris lives with Vita, that Vita is Damarisâs primary
caregiver, and that Vita is employed as Damarisâs provider. Accordingly, the record is
sufficient to establish that Vita is the custodian of Damaris. See id. Therefore, the trial
court could have impliedly found that Vita was eligible for spousal maintenance under
§ 8.051(2)(C). See id.; In re A.A.T., 583 S.W.3d at 921. Consequently, the presumption
in § 8.053(a) does not apply; thus, Vita was not required to present evidence that she
exercised diligence in earning sufficient income or in developing the necessary skills to
provide for her minimum reasonable needs. See Kelly, 634 S.W.3d at 366 (âUnder the
plain language of [§] 8.053(a), the statutory presumption only applies to maintenance
sought pursuant to [§] 8.051(2)(B).â); see also TEX. FAM. CODE ANN. § 8.053(a).
Therefore, we decline to address Germanâs argument that Vita failed to overcome the
rebuttable presumption in § 8.053(a).
2. Minimum Reasonable Needs
German argues that Vita has sufficient property such that she is âmore than able
to provide for her minimum reasonable needs.â German points to various parts of Vitaâs
testimony to support his assertion and argues that the evidence was insufficient to support
the trial courtâs award of spousal maintenance. The record established that Vitaâs monthly
expenses included $160 for insurance for her vehicle and Damarisâs van, $60 for water,
$150â250 for electricity, $400 for groceries, and $918 for her homeâs mortgage. Vita also
24
pays for cellphones for herself and her children; however, Vita only testified as to the cost
of Damarisâs cell phone, which Vita pays $200 per month. Vita also pays for her own
vehicle but did not testify as the amount she pays per month. Based on the record, the
trial court could have impliedly found that Vitaâs monthly minimum reasonable needs
constituted $1,888â$1,988 per month.
In terms of property, the record established that Vita earns $1,080 per month and
receives $340 in food stamps per month. In his brief, German points out that he provides
Vita $900 per month and appears to characterize this sum of money as Vitaâs property
for purposes of § 8.051. Indeed, Vita testified that she uses this money to pay the $918
mortgage and pays the remaining $18 herself. However, nothing in the record indicates
that German was required to pay this sum of money by the trial court; thus, German
voluntarily provided this money to Vita. 7 Likewise, nothing in the record indicates that
German would voluntarily continue to provide this sum to Vita indefinitely and to hold
otherwise would be merely speculative at best. For these reasons, the $900 provided by
German to Vita to pay the mortgage does not fall within the undefined term of âpropertyâ
attributable to Vita. See TEX. FAM. CODE ANN. § 8.051.
German also points out testimony demonstrating that Vita manages Damarisâs SSI
check and appears to characterize this sum of money as Vitaâs property without
explanation. Vitaâs management of Damarisâs SSI benefits do not transform Damarisâs
7 In her brief, Vita characterizes this money as âchild support.â While German himself characterized
the money he provided to Vita as âchild supportâ in his testimony, we note that there are no orders rendered
by the trial court in the Clerkâs Record that ordered German to pay any amount of child support prior to the
final divorce decree. German does not argue on appeal that this money is âchild support.â We also note that
the evidence established that German provided this sum of money starting in October 2019, the same
month that German filed his petition for divorce.
25
property into Vitaâs property. In addition, the record demonstrated that $511.69 of
Damarisâs $704.70 in monthly SSI benefits was used to pay for Damarisâs van, while the
remainder is used by Damaris for gas and food. Thus, nothing indicates that Damarisâs
SSI benefits were used to provide for any of Vitaâs minimum reasonable needs.
Accordingly, the trial court could have found that Vitaâs property consisted of $1,420 per
month (i.e., the sum of Vitaâs monthly earnings and food stamps), which is $468â568
short of providing for Vitaâs monthly minimum reasonable needs of $1,888â$1,988 per
month.
German also notes that the trial court awarded Vita a three-fourthâs equity interest
in the partiesâ residence and ordered Vita to refinance or sell the home in order to pay
Germanâs one-fourth equity interest within nine months, starting October 1, 2020. 8
However, the trial court heard evidence establishing that Vita was the primary caregiver
for Damaris, who required substantial care and personal supervision due to her physical
disability. The trial court also heard evidence that Vita was unable to find other
employment while employed as Damarisâs provider. The trial court had legally and
factually sufficient evidence to make a determination that Vita lacked sufficient property
to provide for her minimum needs, even in the face of being awarded the residence. See
City of Keller, 168 S.W.3d at 822, 827; Plas-Tex, Inc.,772 S.W.2d at 445
; In re L.A.F., 270 S.W.3d at 739; Ayala,387 S.W.3d at 730
(finding some sufficient evidence of wifeâs
lack of property to provide for her minimum reasonable needs to support the trial courtâs
award of spousal maintenance in favor of wife, even though wife was awarded marital
8We note that the divorce decree includes a finding that the equity of the community property
homestead was $102,100.
26
home).
3. Amount of Maintenance Award
German further argues that the evidence is insufficient to support the amount of
spousal maintenance ordered and claims that the amount is excessive. The Texas Family
Code specifies the monetary limits and the acceptable origin of payments required by an
order for spousal maintenance. See TEX. FAM. CODE ANN. § 8.055. Therefore, to justify
the trial courtâs monthly spousal maintenance award of $1,000, there had to be some
evidence in the record that Germanâs post-divorce average monthly gross income was
$5,000âas 20% of $5,000 is $1,000. See id. § 8.055(a); see also id. § 8.001(1) (defining
âmaintenanceâ as âan award in a suit for dissolution of a marriage of periodic payments
from the future income of one spouse for the support of the other spouseâ) (emphasis
added).
The record contains insufficient evidence that Germanâs current or future average
monthly gross income met or exceeded $5,000. German testified that he currently earned
$2,300 per month upon his return to Hidalgo County. Vita stated that German was earning
more money than when he worked in Louisiana and did not believe that he was making
less after returning to Hidalgo County. However, Vita admitted to not having proof of her
assertion. Thus, Vitaâs statement is conclusory, and, standing alone, insufficient to
support the trial courtâs award.
Vita argues that the trial court can use the earning potential of an obligor spouse
who is intentionally underemployed when calculating the amount of spousal maintenance.
In our earlier discussion of Germanâs first issue, we held that the evidence was sufficient
27
for the trial court to impliedly find that German was intentionally underemployed and that
the trial court did not abuse its discretion in impliedly basing Germanâs child support
obligation on his earning potential rather than his actual income. See id. § 154.066(a).
However, § 8.055 includes no equivalent provision authorizing the trial court to assess
spousal maintenance based on earning potential rather than actual income due to
intentional underemployment. Vita cites to Mathis v. Mathis, No. 12-17-00049-CV, 2018
WL 1324777(Tex. App.âTyler Mar. 15, 2018, no pet.) (mem. op.) and Marquez v. Marquez, No. 04-04-00771-CV,2006 WL 1152235
(Tex. App.âSan Antonio May 3,
2006, no pet.) (mem. op.) as support for her argument, but these unpublished cases are
neither factually analogous nor stand for the proposition that courts are authorized by
§ 8.055 to base an award of spousal maintenance on earning potential rather than actual
income due to intentional underemployment, and we have found none.
Because there is insufficient evidence demonstrating that Germanâs average
monthly gross income was $5,000 or more, we hold the trial court abused its discretion in
ordering a spousal maintenance award of $1,000. See TEX. FAM. CODE ANN. § 8.055;
Sherman, 650 S.W.3d at 899. 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 Vita. Deltuva v. Deltuva, 113
S.W.3d 882, 888â889 (Tex. App.âDallas 2003, no pet.) (reversing a portion of a final
decree of divorce providing for four years of spousal maintenance and remanding the
case for further proceedings on the issue of the duration of spousal maintenance); Evans
28
v. Evans, No. 02-19-00132-CV, 2020 WL 1808294, *5 (Tex. App.âFort Worth, April 9, 2020, no pet.) (mem. op.) (holding there was insufficient evidence to support the amount of spousal maintenance awarded by the trial court, reversing the judgment of the trial court relating to the amount of spousal support awarded and remanding for a new trial on the amount of spousal maintenance to be awarded); Schindler v. Schindler, No. 13-16- 00483-CV,2018 WL 3151857
, *8 (Tex. App.âCorpus ChristiâEdinburg, June 28, 2018,
no pet.) (mem. op.) (same). We sustain this sub-issue.
VI. CONCLUSION
We affirm the divorce decreeâs awards of child support and support for a disabled
child. We reverse the portion of the divorce decree related to the amount of spousal
maintenance, and we remand for a new trial solely on that issue. See TEX. R. APP. P.
43.2(a), (d); Deltuva, 113 S.W.3d at 888â89; Evans, 2020 WL 1808294, at *5; Schindler,2018 WL 3151857
, at *8.
NORA L. LONGORIA
Justice
Delivered and filed on the
29th day of December, 2022.
29