# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV John CLARK , Appellant

v. Maria Elzbieta CLARK , Appellee From the 438th Judicial District Court , Bexar County, Texas Trial Court No. 2019

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- 20250 Honorable David A. Canales , Judge Presiding Opinion by: Liza A. Rodriguez , Justice Sitting: Beth Watkins , Justice Liza A. Rodriguez , Justice S andee Bryan Marion, J ustice 1 Delivered and Filed: October 31, 2023 REVERSED AND REMANDED John Clark (“John”) appeals from a final decree of divorce . He complains the trial court abused its discretion by ordering him to pay his former spouse, Maria Elzbieta Clark (“Maria”) , maintenance in the amount of $540 .00 per month for a five

- year period. We reverse and remand

. B ACKGROUND John and Maria were married on March 5, 2006. M ore than thirteen years later, on September 25, 2019 , Maria filed suit for divorce. John answered the suit and c ounter
- petition ed for divorce

. The divorce proceeded to a bench trial , at which Maria sought spousal maintenanc e

1 Sitting by assignment pursuant to section 74.003 of the Texas Government Code04

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- based on two separate theories. First, she asked the t rial court to award her maintenance based on Chapter 8 of the Texas Family Cod e. Second, she asked the trial court to award her maintenance based on “contractual alimony.” 2 In her testimony, Maria explained that she had a serious medical condition that pr evented her from working. She had no income and lived with her daughter. According to Maria, John received payments from the Department of Veterans A ffairs (“VA”) in the amount of $3, 809.02 per month , and s ocial s ecurity payments in the amount of $816.00 p er month. Additionally, Maria testified that John played the saxophone and earned additional income by perform ing with a band. Maria testified that John played “many gigs ” and was paid “under the table , ” but she could not estimate how much income he received from performing

. Maria also presented a letter signed by John, which was admitted into evidence. In the letter, which was dated May 12, 2019, John promised to pay Maria $760 .00 per month in alimony for the rest of her life. Maria testified that a fter the couple separated, John told her that she did not have to worry about her future and that he would not leave her without money. John decided he would give Maria $760 .00 a month. John paid Maria at least $760.00 a month for seventeen months. Sometim es John would pay Maria more

— $900 .00 or $1 , 000 .00 a month

. However, i n October 2020, John stopped making monthly payments to Maria altogether

. In his testimony, John confirmed that he received monthly V A disability payments and
s ocial s ecurity payments and that he received some money for performing as a musician

. John testified that , on average, he earn ed “between $100 and $200” per performance . He explained that “this month [he] had two weddings,” but that “next month he may not have any.” He a dded

2 During opening statements, Maria ’s counsel advised the trial court , “The problem with Chapter 8 may be Mr. Clark’s income is exclusively through SSI and VA disability. I do want to explore, through his testimony, a little of his capacity to earn before just giving up the request under Chapter 8.” Maria ’s counsel also stated: “If the Court’s unwilling, based on the source of his current income, to say Chapter 8 can[] be applied, then I’m asking the Court to apply contractual alimony in the amount of $760 .00 based on his letter and promise to my client, and that’s what we’ll settle for.”04

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- that “[h]aving two [gigs] in one month is an incredible thing.” According to John, performing was more of a hobby than a source of income because it was sporadic and required him to incur expenses , such as travel costs and lodging

. John contended that he was fortunate to “break even.” John further testified that, apart from the VA disability payments, social security payments, and the money he received for performing , he had no other income. John also acknowledged that he had made payments to Maria fr om June 2019 to October 2020. According to John, he made the payments “out of fear ” and because he had signed a document promising to make th e payments
. In closing arguments, Maria argued that the letter she received from John qualified as a contract. Mari a asked the trial court “to hold [John] to the contract, to the promise he made of $760 a month and let him keep making that payment.” Maria further argued that she met th e requirements of Chapter 8 because she was disabled, her income d id not meet her minimal need s , and she was entitled to maintenance under Chapter 8

. John countered that the letter was not a contract because it was not supported by consideration and because Maria did not sign it

. John also argued that the majority of his incom e

— his V A disability and social security payments

— could not be considered in calculating s pousal maintenance under Chapter 8 , and that the money he received from playing in the band was too insignificant to be considere d. T he trial court signed a final decr ee of divorce, dissolving the marriage between John and Maria, awarding certain property and debts to each party, and ordering John to pay Maria maintenance in the amount of $540.00 per month beginning on November 1, 2021, and continuing on the first day o f every month thereafter for a period of five years. The maintenance provision further stated: “R espondent, JOHN CLARK, is ordered to pay maintenance under Chapter 8 of the Family Code and also as contractual alimony.”04

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- John timely filed a notice of appeal , a request for findings of fact and conclusions of law , and a notice of past due findings of fact and conclusions of law. Although properly requested, t he trial cour t did not timely file findings of fact and conclusions of law

. W e abated th e appeal and ord ered the trial court to file findings of fact and conclusions of law. After t he trial court filed its findings of fact and conclusions of law , we ordered the parties to submit supplemental briefing. John filed a supplemental brief , but Maria did not

. 3 S TANDARD OF R EVIEW We review a n award of spousal maintenance for an abuse of discretion. Diaz v. Diaz , 350 S.W.3d 251, 254 (Tex. App.

— San Antonio 2011, pet. denied). A trial court abuses its discretio n when it acts unreasonably, arbitrarily, or without reference to any guiding rules and principles. In re R.H.B. , 660 S.W.3d 136, 147 (Tex. App.

— San Antonio 2022, no pet.). “ Under the abuse of discretion standard, challenges to the legal and factual suffic iency of the evidence are not independent grounds for asserting error , but they are relevant factors used in assessing whether the trial court abused its discretion. ” Diaz , 350 S.W.3d at 254
. Ultimately, w e “determine whether, based on the elicited evidenc e, the trial court made a reasonable decision. ” Garcia v. Garcia , 170 S.W.3d 644, 649 (Tex. App.

— El Paso 2005, no pet.). To uphold the trial court’s ruling , “ we must conclude the trial court’s decision was neither arbitrary nor unreasonable.” Id

. A NALYSIS John argues the trial court abused its discretion by ordering him to pay Maria $540 .00 per month as maintenance for five years

. The divorce decree states that th ese maintenance payments
are based on both Chapter 8 of the Texas Family Code and “ con tractual alimony. ” W e must determine if the trial court’s order requiring John to pay Maria $540.00 per month as maintenance i s unreasonable, arbitrary, or without reference to any guiding rules and principles.

3 Maria did not file an appellee’s brief.04

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- The Texas Family Code defines “ maintenance ” as “an 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 spouse.” T EX . F AM . C ODE § 8.001(1). Chapter 8 of t he Texas Family Code auth orizes trial courts to award spousal maintenance under very narrow and limited circumstances. Dalton v. Dalton , 551 S.W.3d 126, 130 (Tex. 2018)

. “The former spouse must be eligible to receive spousal maintenance; the duration and amount of the payments must not exceed specified limits; the obligation must automatically terminate upon certain events; and the court must consider a wide variety of fac tors to determine the nature, amount, duration, and manner of periodic payments.” Id . (internal quotation marks omitted) ; se e T EX . F AM . C ODE § 8.05 1 (eligibility); § 8.054 (duration); § 8.055(a) (amount); § 8.056 (termination); § 8.052 ( relevant factors). Under Chapter 8, the amount of spousal maintenance is discretionary within certain statutory limits. Specifically, the amount of monthly spousal maintenance cannot be “more than the lesser of: (1) $ 5,000.00; or (2) 20 percent of the spouse’s average monthl y gross income.” Id . § 8.055(a). Furthermore, Chapter 8 provides that “gross income” “does not include

. . . Department of Veterans Affairs service

- connected disability compensation; [or] supplemental security income (SSI), social security benefits, and di sability benefits.” Id . § 8.055(a

- 1) (2)

. Texas law also permits parties to agree to contractual spousal maintenance that varies from Chapter 8 of the Texas Family Code. See id . § 7.006(a) (providing that “spouses may enter into a written agreement concern ing

. . . the liabilities of the spouses and maintenance of either spouse. ” ). “Chapter 8 does not apply to a spousal maintenance provision in a divorce decree that restates a parties’ contractual spousal maintenance agreement.” In re Marriage of Martz , No. 09

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- 00048

- CV, 2022 WL 2251731, at *7 (Tex. App.

— Beaumont June 23 , 2022, pet. denied ) ; accord In re Dupree , 118 S.W.3d 911, 916 (Tex. App.

— Dallas 2003, orig. proceeding [mand. denied]) (concluding that contractual spousal alimony provided for in a divorce decree was an04

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- agreement pursuant to section 7.006 of the Texas Family Code, and therefore, it was consider ed a contract and not an agreement for spousal maintenance made pursuant to Chapter 8)

. Contractual spousal maintenance agreements are binding on the parties and, even when incorporated into divorce decrees, are interpreted under general contract law. Schw artz v. Schwartz , 247 S.W.3d 804, 806 (Tex. App.

— Dallas 2008, no pet.). “C ourts may not rewrite the parties’ contract, nor should courts add to its language.” In re Davenport , 522 S.W.3d 452, 457 (Tex. 2017) (orig. proceeding). A divorce decree that incorp orates an agreement between the parties must not remove and add material terms ; instead, it must be “in strict or literal compliance” with the agreement. Chisolm v. Chisholm , 209 S.W.3d 96, 98 (Tex. 2006). “As with any other contract, absent consent of the parties, the provisions of an [alimony] agreement will not be modified or set aside except for fraud, accident or mutual mistake of fact.” Ammann v. Ammann , No. 03

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- CV, 2010 WL 4260955, at *1 (Tex. App.

— Austin Oct. 28, 2010, no pet.). Here, Maria testified that John’s primary sources of income w ere VA disability benefits in the amount of $3,809.02 per month and social security in the amount of $816 .00 per month. She further testified that John received additional income f rom play ing saxophone in a band

. John testified that he receive s V A and social security disability payments each month and that he earns a small amount of money from his musical performances

. According to John, the most he ever performed was twice a month. In the pas t month, he had played at two weddings

. John testified that he averages somewhere “between $100 and $200” per performance

. According to John, the last time he performed was about ten days before trial . He recalled that he earned more than $100 for that per formance , but he was not sure if he earned more than $200. John further testified that he had no other income.04

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- Applying the “gross income” requirements set out in Chapter 8, the trial court could not consider John’s VA disability and his s ocial s ecurity in come in calculating the amount of spousal maintenance

. See T EX . F AM . C ODE § 8.055(a

- 1)( 2)

. The only income the trial court could have considered in calculating the amount of spousal maintenance was the income from John’s musical performances. However, t his income was nowhere near $2 , 700.00 a month, which is the amount necessary to arrive at an award of $540.00 per month. See i d

. § 8.055(a) (stating that monthly spousal maintenance cannot be “more than the lesser of: (1) $ 5,000.00; or (2) 20 percent of the spouse’s average monthly gross income.”). T here is no evidence that John’s average monthly gross income was sufficient to support the spousal maintenance ordered in the divorce decree. Therefore, the trial court abused it s discretion by ordering John to pay spousal maintenance in the amount of $540.00 per month under Chapter 8 of the Family Code

. See Keating v. Keating , No. 02

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- 00271

- CV , 2022 WL 187985 , at * 6 (Tex. App.

— Fort Worth Jan. 20, 2022, no pet.) (reversing and r emanding for new trial on the amount of spousal maintenance when there was no evidence that the amount awarded was within the statutory twenty

- percent limit) ; In re Marriage of Franklin , No. 10

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- CV, 2013 WL 4799063, at *3 (Tex. App.

— Waco Aug. 29, 2013, no pet.) (holding that the trial court abused its discretion by imposing a spousal maintenance amount greater than the statutory limits under Section 8.055(a) and remanding to tria l court to re

- address the amount of spousal maintenance). To the extent John was ordered to pay the $540.00 per month “ as contractual alimony, ” the divorce decree i s not “ in strict or literal compliance ” with the terms of the parties’ purported agreement
. 4 See Chisolm , 209 S.W.3d at 98. Maria’s theory was that John agreed to pay her $760.00 per month for the rest of her life. However, by ordering payments in the amount of $540 .00 per month for a period of five years , the trial court impermissibly altered t he amount and

4 We express no opinion about the validity of the agreement.04

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- the duration of the payments

. “A trial court has no power to supply terms, provisions, or conditions not previously agreed upon by the parties.” Ammann , 2010 WL 4260955, at * 3
. Therefore, the trial court abused its discretion by ordering John to pay $540.00 per month “ as contractual alimony.” C ONCLUSION We conclude t he trial court’s award of $540.00 per month “as maintenance under Chapter 8 of the Family Code and also as contractual alimony ” is arbitrary and without reference to any guiding rules and principles

. Accordingly, we reverse this portion of the divorce decree and remand this case to the trial court for a new trial on that issue. Liza A. Rodriguez, Justice