## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00070

- CV

IN THE MATTER OF THE MARRIAGE OF NATHAN LEVI LAVENDER AND CANDICE MARIE LAVENDER AND IN THE INTEREST OF H.L.L., J.G.L., AND I.K.L., CHILDREN

On Ap peal from the County Court at Law

Bowie County, Texas Trial Court No. 21D0251

- CCL

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
In a n unc p ro t unc f

inal d ecree of d ivorce dissolving th e marr iage of Nathan and Candice Lavender, the County Court at Law of Bowie County (CCL) ordered Nathan to pay spousal maintenance to Candice in the amount of $1,200 .00 per month for a period of eighty

- one months. On appeal, Nathan contends tha t the tri a l cour t abus e d its discretion by (1) finding Candice eligible for an award of spousal maintenance ; (2) awarding an amount of sp ousal maintenance that exceeded the statutory maximum amount; and (3) awarding spousal maintenance for a period exceed ing the s ta tutory maxim u m length of time. We affirm the trial court’ s determination that Candice was eligible for spousal maintenance , bu t we find that the duration of the spousal maintenance award exceed ed the statutory maximum

. We reverse the trial court ’ s judg ment a nd remand to the trial court for further proceedings consis tent with t his opinion

. I . Factu al and Legal Ba ckground Nathan and Candice were married o n March 1 4 , 2012

. During the marriage, the couple had three children. During th e marriage, Nathan , having obtain ed a degree in criminal justice, primari ly worked for various law e n forcemen t agencies

. Candice was a homemaker. In Februa ry 2021, the couple separated , and Nathan moved out of the family home. On March 9, 2021, Nat han fi led a petition for divorce , alle ging irreconci lable dif ferences. Ca ndice filed a n answer and counter

- petition for divorce that alleg ed ground s for a disproportionate share of the community estate and made a request for spousal maintenanc e.3

After a final hearing, the CCL dissolved the marriage, awarded joint custody of t he coupl e’s three children, ordered standard visitation and child support, and awarded Candice the marital home and a dispr oportionate share of the assets after debt. The tri al court also ordered Nathan to pay spousal maintenance in the amount of $1,200

. 0 0 per mo nth for a period of eighty

one months. Nathan appeals from the trial court’s spousal maintenance orders. II. Stan dard of Review We review an award of s pousal ma intenance under an abuse

- of

- discretion stand ard. In re Marriage of Lendman , 170 S.W

. 3d 894, 899 (Tex. App.

— Texarkana 2005, no pet.). “A trial court abuses its discretion only when it has acted in an un rea sonable or arbitrary manner , or when it a cts witho ut reference to any guiding principle.” In re P .M.G. , 405 S.W.3d 406, 410 (Tex. App

. — Texarka na 2013, no pet.) (quoting In re Marriage of Jeffries , 144 S.W.3d 636, 638 (Tex. App.

— Texarkana 2004, no pet.) ). In our review, legal and factual sufficiency of the evid ence are relevant factors in assessing wh ether the trial court abused its discretion but are not independent grounds of error. Id

. (citing N iskar v. Niska r , 136 S. W.3d 749, 753 (Tex. App.

— Dallas 20 04, no pet.) ). To make our determination, “we c onsider whether the trial court had sufficient evi dence up on which to exercise its discretion and, if so, whether it erred in the exercise of that disc retion.” Id

. (citing I n re W.C.B. , 337 S.W.3d 510, 5 13 (Tex. App.

— Dallas 2011, no pet. ) ). There is no a buse of discretion if there is some substantive an d probative evidence that “ support [ s the trial court ’ s ] decision or if reasonable minds could differ a s to the resul t. ” In re Marriage of McFarland , 176 S.W .3d 650, 656 (Tex. App.

— Texarkana 2005, no pet. ) (quotin g Smith v. Smith , 155 S.W.3d 303, 305 (Tex. App.

— Corpu s Christi

– Edinburg 2003,4

no pet.)) . When, as here, the trial court has not entered findings of fact and conclusions of law,

we “ must uphold th e t rial court ’ s judgment on any legal theory s upp o rted by th e record. ” In re Marriage of Smith , 115 S .W.3d 126, 131 (Tex. App.

— Texarkana 2003, pet. denied). III. Spousal Maintenance Eligibility
In his first point of error, Nathan contends that the tria l c ourt abused its discretion in awarding spousal mainten a nc e because Candice failed to rebut the pres umption against an award of spousal maintenance. “An award of spousal maintenance is intended to provide temporary and rehabilitative support for a spou se whose ability to support herself has eroded ov e r time w hi le engage d in homemaking activities and wh ose capital assets are insufficient to provide support.” In re Marriage of McCoy , 567 S.W.3d 4 26 , 428

– 29 (Tex. App.

— Texarkana 201 8 , no pet. ) (quoting
In re Marriage of Hallman , No. 06

- 09

- 00089

- CV, 2 010 WL 6 19290, at *5 (Tex. App.

— Texarkana 2010, pet. den i ed) (mem. op.) ). “ The trial court [ has discretion to ] award spousal maintenance only if the party seeking [ it ] meets specific [ statutory ] requirement s. ” Deltuva v. Deltuva , 113 S.W.3d 882, 888 (Te x . App.

— D allas 2003, no pet.) ; s ee T EX
. F AM
. C ODE A NN
. § 8 .051

. The eligibility for spousal maintenance under Section 8.051 differs, depending on the parties ’ circumstances. T EX
. F AM
. C O DE A NN
. § 8.051. U nde r the facts of this case, Candice was eligible for spousal maintenance only if she could show that sh e had bee n married to Nathan for at least ten years and that she lacked both sufficient property and the ability to earn suf f icient5

i nco me to pro vide f

or her minimum reasonable needs. 1 See T EX
. F AM
. C ODE A NN
. § 8.051(2)(B); In re Marriage of Hallman , No

. 06

- 09

- 00 089

- CV, 2010 WL 619290, at *5 (Tex. App.

— Texarkana 2010, pet. denied) (mem. op.)

. In addition, when, as here, a pa r ty seek s

s pousal maintenanc e u nder subsection (2)(B), there “ is a rebuttable presumption that [ spousal ] maintenance

. . . is not w arra nted u nless the [ party ] has exercised diligence in : (1) earning sufficient income to provide for [ her ] minimum reason a ble nee d s ; or (2) developi ng t he necessary skills to provide for [ her ] minimum

. . . needs ” while the parties were separated and the case was pending. T EX
. F AM
. C ODE A NN
. § 8.053 ; see Quijano v. Amaya , No. 13

- 16

- 00485

- CV, 2018 WL 1870476, at *4 (Te x. App.

— C o rpus Christi

– Edinburg Apr. 19, 2018, no pet.) (mem. op.)

. Nathan does not dispute that he and Candice were married more than te n ye ars or that she lacked bo th suffic ient property and the ability to earn sufficient income to provide for her mi ni mum rea s onable needs. Rather, Nath an asserts that there is no evidence of Candice’s diligence to either earn sufficient income or to devel op t he necessary skills to p rovide fo r her minimum reasonable needs. Candice argues that her testimony t hat she secured employment , made arrangements t o p ay for her costs of living, and had plans to further her education , given the appropriate resources , was sufficient evi dence to overcome the presumption that spousal maintenance was not warranted. Since N at han did not have the burde n of proof at trial, “ his no

- evidence complaint challenges the legal sufficiency of the evidence supporting the trial court ’ s e xercise of its

1 The determination of a spouse ’ s minimum reasonab le needs is fact

- specific and determined on a case

- by

- case basis. Hallman , 2010 WL 6192 90 , at * 5 (citi n g Deltu va , 113 S.W.3d at 888).6

discreti on.” McCoy , 567 S.W.3d at 429. The evidence is legally insufficient if (1) th ere is “ a complete absence o f evidence of a vita l fact ” ; (2) the “ rules of law or of evidence [ bar the court ] from giving weight to the only evidence offe red to prove a vita l fact ” ; ( 3) there is no more than a mere scintilla of “ evidence offered to prove a vital f act ” ; or (4) the opposite o f the vital f a ct is conclusively established by the evidence. Jelinek v. Casas , 328 S.W.3d 526, 532 (Tex. 2010).

“ Mor e than a scintilla of e vidence e xists when the evidence reaches a level enabling reasonable and fai r - m inded people to differ in their conc lusions. ” S h erman v. Sherman , 650 S.W.3d 897, 899 (Tex. App.

— Texarkana 2022, no pet.)

. “Less than a scintilla of evi dence exists when the evidence i s ‘so we a k as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman , 118 S.W

. 3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983)). In the c ase of In re Marriage of McFarland , S usan Mc F arland testified that she had been a homemaker for most of the marriage, that she had allowed her man icur ist’s license to expire several years prior, and that she had only recently been able to find temporary em ploy ment where she made between $7.00 and $9

. 0 0 per h o ur because of her limited education, training, and experience. In re Marriage of McFarl and , 176 S.W. 3d at 653

– 54

. The trial court found that , if she “return ed to school on a full

- time basis , it would be u n l i kely th a t she could continue

working a fu ll

- time job given the young ages of her three children.” Id. at 652. This court affirmed the award of sp o usal maintenance

. Id

. at 659

– 60.
Here , Candice testified that , for the latter portion of the school year , s h e worke d as a teacher’s aide for the Red Lick School Distri ct

. S he did not work after the school year ended7

because paying for child

- care for h er three young children was cost prohibitive . Based on her high school education and lack of job traini ng, the cos t of dayc a re would exceed w hat she c ould earn working. She testified that she planned to continue working as an aide when the school ye ar be gan again , and she had “look [ ed ] into” taking a course to “become certified as [ a teacher’ s ] aid[e].”
C a nd ice had a lso appli ed for an “in the home” medical position, but her child

- rearing responsibilities prevented her from taking the job. Candic e tes tified that she had applied for an d obtained government assistance in the form of “food stamps,” dro ve a bo r r owed ca r, and ob tained loans from her mother and mother

- in

- law to pay f or her mortgage and clothing “for interviews.” On cross

- examination, Cand ice conceded that she had not taken any college courses or job training to make herse lf more em p l oyable a n d , l ikewi se, had not done “anything to help provide for [her] mi nimum reasonable needs.” Taken as a whole, Candice ’ s testimony is ev idence of diligence

. See In re Marriage of Eilers , 205 S.W.3d 637, 646 (Tex. App.

— Wac o 2 006, pe t

. denied) ( ho lding t h at evide nce of wife ’ s low paying job and of her actions exploring other feasible jobs in the vicinity was evidence of diligence). Based o n the foregoing , we find that t h ere was more than a scintilla of evidence to support the trial cou r t ’s implied f inding of dili genc e and that, therefore, the trial court was within its discretion to find that Candice was eligible to receive spousal mainten ance. Accor dingly, we overrule this point of error.8

I V. Spousal Maintenance Period Nathan contends that th e trial c o urt erre d by orde ring th at spousal maintenance be paid for eighty

- one months because that exceeds the statutory maximum time period. Can dice agrees th at was error . She states in her brief, “ Given the facts of this case, the trial court committed error in awardin g mai nte nance f o r a period of time w hich ex ceeded five (5) years. ” We agree as well

. The duration of a spousal mainten ance order is limited by S ection 8.054 of th e Texas Family Code. See T EX
. F AM
. C ODE A NN
. § 8.0 54 ; Cra n e v. Crane , 188 S.W.3 d 2 76, 27 9 (Tex. App.

— Fort Worth 2006, pet. denied). Where the parties have been married for more than ten years, but less than twe nty years, the trial court may award spousal maintenance for a period of up to five years. T EX
. F AM
. C O DE A NN
. § 8.054( a) (1) (A )(ii ). Here, the trial court ordered Nathan to pay spousal maintenance for a period of eighty

- one months, which exceeds the five

year maximum period of sixty months. See i d

. Therefore, we sustain this point of error. T hough we could, if we so dete rmine d, s impl y modify the award of spousal maintenance to conform to the statutory maximum duration, we opt instead to remand. We remand because it appears that the amoun t and duration of the spousal maintenance or der ed by th e trial court w ere i nter twined with othe r c onsiderations best left to the trial court’s examination on remand. At the conclusion of the divorce proceedings, the court stated , The Court is going t o order the sum of $1200 per month spousal su ppo rt for 8 1 months. However, Mr. Lavender will be given c redit for his equity in the home and what that does is basically makes it zero. So, he won ’ t have to pay sp ousal support out

- of

- pocket, but it ’ s coming out of his equity in the home, so that shoul d b e a wash

.9

R ather than m ake an ou tright aw ard of Nathan’ s equity in the marital residence to Candice, the trial court ordered Nathan to pay monthly spousal maintena nce in the form of equity “in lieu of” cash. 2 The nunc pro tunc final decree of d ivo rce stated : However, in lieu of Nathan Lev i Lavende r be i ng orde red to pay to Candice Marie Lavender as maintenance the sum of one thousand two hundred dollars ($1,200 .00) per month for a period of eighty

- one (8 1) months, IT IS ORDERED that Candice Marie La vender s h all retain N athan Levi Lavender’s security int e rest in the marital residence located at 152 Cedar Ridge Circle, Texarkana, Bowie County, Texas, as awarded to Candice Marie Lavender hereinabove

. . . . When determining spousal mainten anc e, t h e t r ial court may consider the amount and li quidity o f the p r operty awarded in the divorce proceedings

. See In re McFarland , 176 S.W.3d
at 658

– 59 (outlining several cases that have considered the amount of prop erty awa r ded in the divorce proceeding when determining wh ether to award spousal maintenance). W hile the d ivisio n of the marital estate can be considered when setting spousal maintenance , spousal maintenance serves a distinct function

. See T EX
. F A M
. C O DE A NN
. § 8.051; s ee Da lton v. Dalton , 551 S.W .3d 126, 130

– 31 (Tex. 2 018) (dis cussing the historical backgr o und of court

- ordered spousal maintenance, the stat utory requirements for spousal maintenance, and the enforcem ent tools available for spou sal ma intenanc e that are not a vaila ble for the enforcement of voluntary
spousa l support agreements incorporated into a divorc e decree)

.

2 Though the effect of the trial court’s order is in some ways akin to a disproportionate division of the marital estate, the effect is not quite the same as an outright in

- the

- present award to the wife of all equity in the m a ri tal r esiden ce. The parties address this as a maintenance issue, and thus, we analyze it as such.10

In light of the above and given that the duration of maintenance ordered by the trial court exceed ed the statutory max imum , we rever s e the trial court ’ s judgment and remand to the trial court for further proceedings consis tent with t his o pinion

. 3

J eff Rambin Just ice Date Submitted : March 14, 2023 Date Decided: May 1 0 , 2023

3 Natha n also argues that the amount of spousal maintena nce order ed , $1,2 00 .00 per month, exceeds the statutory maximum a mount of twenty percent of his “averag e m on thly gross income.” See T EX
. F AM
. C ODE A NN
. § 8.055 (a ) (“ A co u rt may not ord er maintenance that req uires an obligor to pay monthly more than the lesser of: (1) $5 , 00 0 ; or (2) 20 percent of the spouses ’ average m onthly gross income.” )

. Both parties a gr ee that twenty percent of Nathan’s regular paych e ck come s to a monthly spousal maintenance amo unt of $1,017.66. Th e parties diverge, however, over the amount and regularity of Nathan’s income from other sou rces and whether any such inc ome sh ould be i nc l ud ed in Nathan’s av erage monthly inc ome. Because we are r e manding on other g rounds, w e do not resolve this point.