Opinion issued November 20, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00839-CV

———————————

JERRY DAY, Appellant

V.

JEANIE DAY, Appellee

On Appeal from the 311th District Court

Harris County, Texas

Trial Court Case No. 2012-32248

O P I N I O N

Jerry Day appeals from a final decree of divorce awarding Jeanie Day 

spousal maintenance of $500 per week for 60 calendar months and thereafter $300 

per week for 15 calendar months. On appeal, Jerry argues in five issues that “there 

is no evidence” to satisfy the statutory requirements for spousal maintenance or
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support either of the two findings necessary to overcome the presumption that 

spousal maintenance is not warranted. We affirm.

Background

Jerry and Jeanie married in 1992. After a five-year separation, Jeanie filed 

for divorce in 2012. Jerry and Jeanie have one child, who is over the age of 18.1 At 

trial, Jeanie testified that Harvey Home Health has employed her as a receptionist 

for five years, and over that time her pay has increased from $30,000 to $34,000 

annually. She testified that her income is not enough money to financially support 

herself. Jeanie also alleged that Jerry had wasted community funds in violation of a 

court order. To remedy this fraud on the community estate, she asked the trial court 

to award her a reconstitution2 of the estate against Jerry through court-ordered 

spousal maintenance. Following a two-day bench trial, the trial court awarded 

Jeanie spousal maintenance in the amount of $500 per week for 60 calendar 

months and thereafter $300 per week for 15 calendar months, for a total of 

$149,500.

The next week, Jerry submitted a request for findings of facts and 

conclusions of law. Jeanie then submitted proposed findings of facts and 

 1 The child was a minor when the divorce petition was filed, but reached age 18 

shortly before the final divorce decree.

2 The reconstituted estate is the total value of the community estate that would exist 

if an actual or constructive fraud on the community had not occurred. TEX. FAM.

CODE ANN. § 7.009 (West Supp. 2014).
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conclusions of law, which the court signed without modification. In those findings, 

the trial court found, in pertinent part, that:

6. Jeanie Day will lack sufficient property, including her separate 

property, on dissolution of the marriage to provide for her 

minimum reasonable needs.

7. The duration of the marriage was ten years or longer, and Jeanie 

Day lacks the ability to earn sufficient income to provide for 

her minimum reasonable needs.

8. The following factors were taken into consideration in 

determining the nature, amount, duration, and manner of 

periodic payments:

a. Jeanie Day and Jerry Day were married for at least 

twenty years but not more than thirty years;

b. Jerry Day’s excessive or abnormal expenditures or 

destruction, concealment, or fraudulent disposition of 

community property;

c. Jeanie Day’s contribution as primary caregiver of the 

parties’ child;

d. Jeanie Day’s contribution as homemaker; and

e. Jerry Day’s marital misconduct, including adultery and 

cruel treatment.

9. The net resources of Jerry Day per month are $10,174.00.

. . .

25. Jerry W. Day should pay spousal maintenance in the amount of 

$500.00 per week for a period of 60 months, beginning August 

8, 2013 and thereafter $300.00 per week for a period of 15 

months.
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The court also made findings concerning Jerry’s fraud on the community and 

valued the reconstituted estate at $299,466.26.

Standard of Review

In his third through fifth issues, Jerry argues that there is legally insufficient 

evidence that Jeanie lacks the ability to earn sufficient income (issue three), has 

exercised diligence in earning sufficient income (issue four), or has exercised 

diligence in developing the necessary skills to provide for her reasonable needs 

during their separation (issue five). Therefore, Jerry claims, Jeanie has not 

overcome the presumption that spousal maintenance should not be awarded.

We review a spousal maintenance award under an abuse of discretion 

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

2005, pet. denied). A trial court abuses its discretion when it rules arbitrarily, 

unreasonably, without regard to guiding legal principles, or without supporting 

evidence. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Dunn, 177 

S.W.3d at 396. “Under the abuse of discretion standard, legal and factual 

sufficiency of the evidence are not independent grounds for asserting error, but 

they are relevant factors in assessing whether the trial court abused its discretion.” 

Dunn, 177 S.W.3d at 396. “Because of the overlap between the abuse-of-discretion 

and sufficiency-of-the-evidence standards of review, this court engages in a twopronged inquiry to determine whether the trial court (1) had sufficient information 
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on which to exercise its discretion and (2) erred in its application of that 

discretion.” Corrick v. Corrick, 01-09-00656-CV, 2011 WL 664007, at *3 (Tex. 

App.—Houston [1st Dist.] Feb. 17, 2011, no pet.). In determining the first prong, 

“[w]e apply the same standards when reviewing the legal and factual sufficiency of 

the evidence supporting the trial court’s fact findings as we do when reviewing the 

evidence supporting a jury’s answer to a special issue.” Dunn, 177 S.W.3d at 396.

(citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)); see Stamper v. Knox, 254 

S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

To prevail on a legal-sufficiency challenge on an issue for which an 

opposing party had the burden of proof, the complaining party must show that 

there is no evidence that “would enable reasonable and fair-minded people to reach 

the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 

2005). When reviewing a legal-sufficiency challenge, we consider all of the 

evidence supporting the judgment, “credit[ing] favorable evidence if reasonable 

jurors could, and disregard[ing] contrary evidence unless reasonable jurors could 

not.” Id. We consider the evidence in the light most favorable to the findings and 

indulge every reasonable inference that would support them. Id. at 822; see Zenner 

v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston 

[1st Dist.] 2012, pet. denied). 
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Evidence on Income Sufficient to Meet Reasonable Needs

There are several scenarios for which Texas law allows an award of spousal 

maintenance from one divorcing spouse to the other. TEX. FAM. CODE ANN.

§ 8.051 (West Supp. 2014). In all cases, the spouse receiving maintenance must 

lack sufficient property upon dissolution of the marriage to provide for her 

reasonable minimum needs. Id. In the dissolution of a marriage lasting 10 years or 

longer, the spouse seeking maintenance must also lack the ability to earn sufficient 

income to provide for her minimum reasonable needs.3 Id. § 8.051(2)(B); in re 

Green, 221 S.W.3d 645, 647 (Tex. 2007); Cooper v. Cooper, 176 S.W.3d 62, 64 

(Tex. App.—Houston [1st Dist.] 2004, no pet.).

Jerry does not challenge the trial court’s finding that Jeanie will lack 

sufficient property upon dissolution of the marriage. He also concedes that “there 

is evidence” that Jeanie’s current income does “not meet her minimum reasonable 

needs.” But, in his third issue, he contends that the trial court erred because “there 

is no supporting evidence that she lacked the ability to earn more.” Because Jerry 

 3 The trial court may also order spousal maintenance if the other spouse was 

convicted of or received deferred adjudication for a criminal offense that also 

constitutes an act of family violence, if the maintenance-seeking spouse has an 

incapacitating disability, or if she must care for a child of the marriage with a 

disability. TEX. FAM. CODE ANN. § 8.051. Jeanie did not seek spousal maintenance 

under these provisions. Jerry’s first two issues contend that there was no evidence 

of these requirements. We agree, but those issues do not resolve this case because 

Jeanie sought spousal maintenance on another basis: lack of an adequate income.
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limits his argument to whether Jeanie is able to earn additional income, we limit 

our review accordingly. See Cooper, 176 S.W.3d at 64.

Section 8.051(2) focuses on whether Jeanie can provide for her minimum 

reasonable needs currently, not whether she can do so in the future with additional 

training or education. See Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.—

Dallas 2003, no pet.) (spouse seeking maintenance who obtained real estate license 

while divorce was pending but needed about one year to “get her real estate 

business ‘rolling’” lacked ability to earn sufficient income). We therefore consider 

Jeanie’s current, not future, ability to earn “sufficient income.”

The evidence shows that Jeanie earns approximately $1,900 per month and 

that her expenses are approximately $3,000 per month. She adduced evidence that 

she presently lacks the ability to earn more. Jeanie already works full time. Her 

paystubs indicate that she works additional overtime hours. She has no assets that 

could provide rental income. She has dramatically limited her expenses and 

exhausted her savings to make ends meet. This evidence supports the conclusion 

that she lacks the ability to supplement her current income.

Based on the evidence, the trial court did not abuse its discretion in 

concluding that Jeanie presently lacks the ability to earn sufficient income to 

provide for her minimum reasonable needs. Accordingly, we overrule Jerry’s third 

issue.
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Overcoming the Presumption Against Spousal Maintenance

If a spouse demonstrates that she presently lacks the ability to earn sufficient 

income to provide for her minimum reasonable needs, she must also overcome a 

rebuttable presumption that spousal maintenance is not warranted by showing that 

she has exercised diligence in “(1) earning sufficient income to provide for the 

spouse’s minimum reasonable needs” or “(2) developing the necessary skills to 

provide for the spouse’s 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 (West Supp. 2014); see also Cooper, 176 S.W.3d at 64. Jerry 

contends that neither condition was satisfied here. 

A. Evidence on diligence in earning an adequate income

In his fourth issue, Jerry contends that Jeanie presented no evidence that she 

exercised diligence in earning sufficient income, and thus has failed to satisfy 

section 8.053(a)(1). We disagree. Unlike section 8.053(a)(2), section 8.053(a)(1)

does not limit the diligence inquiry to “the period of separation and . . . the time the 

suit for dissolution of the marriage is pending.” Compare TEX. FAM. CODE ANN.

§ 8.053(a)(1) with § 8.053(a)(2). Jeanie testified that, while she and Jerry lived 

together as a married couple, she was the primary caregiver of their daughter; she 

was often the only source of steady, regular income and she paid most of the 
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couple’s bills. She testified that Jerry’s income was “sporadic,” he was jailed 

twice, and he was violent and abusive.

When Jeanie and Jerry separated in 2007, she had been unemployed for nine 

months. Jeanie immediately obtained full-time employment and she has kept this 

job for more than five years, increasing her annual salary from $30,000 to $34,000. 

She also produced evidence that she has purposefully limited her expenses. She 

quit a substance-abuse habit and negotiated a $150 per hour reduction in her 

divorce lawyer’s fees. She has bought no home furnishings save for replacing her 

refrigerator. Her car is seven years’ old and needs maintenance. She has continued 

to raise the couple’s daughter, who graduated from high school during the divorce 

proceedings.

Although Jerry sent Jeanie a monthly stipend to help pay for their daughter, 

Jeanie testified that parenthood has been a major financial strain. She testified that 

she sold separate real property—two homes purchased prior to her marriage and an 

inherited one-half interest in her parent’s home—and took out personal loans to 

make ends meet. She also produced evidence that she used her money inherited 

from her parents—her separate property—to help support her and her daughter.

When asked on cross-examination why she needed to take these measures to cover 

her expenses, she responded: “I have a daughter that I support.”
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Jerry contends that Jeanie must show that she has sought additional or more 

lucrative employment. While an earlier version of the statute required diligence in 

seeking “suitable employment,” in 2011 the Legislature broadened the inquiry to 

“earning sufficient income.” Compare TEX. FAM. CODE ANN. § 8.053 (West 2006) 

with § 8.053 (West Supp. 2014). Jeanie met this requirement by limiting her 

expenses, selling her separate property, exhausting her inheritance, and taking 

loans—all while working more than full time and being the sole caregiver to the 

couple’s daughter. Therefore, we overrule Jerry’s fourth issue.

B. Diligence in developing necessary skills

In his fifth issue, Jerry contends that Jeanie did not overcome the 

presumption against spousal maintenance because she did not present any evidence 

that she exercised diligence in developing the necessary skills to provide for her 

minimum reasonable needs, and thus has failed to satisfy section 8.053(a)(2).

To overcome the presumption, the spouse seeking maintenance must satisfy 

section 8.053(a)(1) “or” section 8.053(a)(2). TEX. FAM. CODE ANN. § 8.053(a). The 

statute’s use of the disjunctive indicates that these are two independent methods to 

overcome the presumption. We have already concluded that Jeanie has shown 

diligence under section 8.053(a)(1). Therefore, she need not satisfy section

8.053(a)(2). Accordingly, we overrule Jerry’s fifth issue.
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Conclusion

We affirm the trial court’s spousal maintenance award.

Harvey Brown

Justice

Panel consists of Justices Massengale, Brown, and Huddle.