In the

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 Appeal 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 Rambin
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MEMORANDUM OPINION

In a nunc pro tunc final decree of divorce dissolving the marriage 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 that the trial court abused its discretion by (1) finding 

Candice eligible for an award of spousal maintenance; (2) awarding an amount of spousal 

maintenance that exceeded the statutory maximum amount; and (3) awarding spousal 

maintenance for a period exceeding the statutory maximum length of time.

We affirm the trial court’s determination that Candice was eligible for spousal 

maintenance, but we find that the duration of the spousal maintenance award exceeded the 

statutory maximum. We reverse the trial court’s judgment and remand to the trial court for

further proceedings consistent with this opinion.

I. Factual and Legal Background

Nathan and Candice were married on March 14, 2012. During the marriage, the couple 

had three children. During the marriage, Nathan, having obtained a degree in criminal justice,

primarily worked for various law enforcement agencies. Candice was a homemaker. In 

February 2021, the couple separated, and Nathan moved out of the family home. On March 9, 

2021, Nathan filed a petition for divorce, alleging irreconcilable differences. Candice filed an 

answer and counter-petition for divorce that alleged grounds for a disproportionate share of the 

community estate and made a request for spousal maintenance. 
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After a final hearing, the CCL dissolved the marriage, awarded joint custody of the 

couple’s three children, ordered standard visitation and child support, and awarded Candice the 

marital home and a disproportionate share of the assets after debt. The trial court also ordered 

Nathan to pay spousal maintenance in the amount of $1,200.00 per month for a period of eightyone months. Nathan appeals from the trial court’s spousal maintenance orders. 

II. Standard of Review

We review an award of spousal maintenance under an abuse-of-discretion standard. 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 unreasonable or arbitrary manner, or 

when it acts without reference to any guiding principle.” In re P.M.G., 405 S.W.3d 406, 410 

(Tex. App.—Texarkana 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 

evidence are relevant factors in assessing whether the trial court abused its discretion but are not 

independent grounds of error. Id. (citing Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—

Dallas 2004, no pet.)). To make our determination, “we consider whether the trial court had 

sufficient evidence upon which to exercise its discretion and, if so, whether it erred in the 

exercise of that discretion.” Id. (citing In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 

2011, no pet.)). There is no abuse of discretion if there is some substantive and probative 

evidence that “support[s the trial court’s] decision or if reasonable minds could differ as to the 

result.” In re Marriage of McFarland, 176 S.W.3d 650, 656 (Tex. App.—Texarkana 2005, no 

pet.) (quoting Smith v. Smith, 155 S.W.3d 303, 305 (Tex. App.—Corpus 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 the trial court’s judgment on any legal theory supported by the 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 trial court abused its discretion in 

awarding spousal maintenance because Candice failed to rebut the presumption against an award 

of spousal maintenance. 

“An award of spousal maintenance is intended to provide temporary and rehabilitative 

support for a spouse whose ability to support herself has eroded over time while engaged in 

homemaking activities and whose capital assets are insufficient to provide support.” In re

Marriage of McCoy, 567 S.W.3d 426, 428–29 (Tex. App.—Texarkana 2018, no pet.) (quoting

In re Marriage of Hallman, No. 06-09-00089-CV, 2010 WL 619290, at *5 (Tex. App.—

Texarkana 2010, pet. denied) (mem. op.)). “The trial court [has discretion to] award spousal 

maintenance only if the party seeking [it] meets specific [statutory] requirements.” Deltuva v. 

Deltuva, 113 S.W.3d 882, 888 (Tex. App.—Dallas 2003, no pet.); see TEX. FAM. CODE ANN.

§ 8.051.

The eligibility for spousal maintenance under Section 8.051 differs, depending on the 

parties’ circumstances. TEX. FAM. CODE ANN. § 8.051. Under the facts of this case, Candice 

was eligible for spousal maintenance only if she could show that she had been married to Nathan

for at least ten years and that she lacked both sufficient property and the ability to earn sufficient 
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income to provide for her minimum reasonable needs.1See TEX. FAM. CODE ANN.

§ 8.051(2)(B); In re Marriage of Hallman, No. 06-09-00089-CV, 2010 WL 619290, at *5 (Tex. 

App.—Texarkana 2010, pet. denied) (mem. op.). In addition, when, as here, a party seeks

spousal maintenance under subsection (2)(B), there “is a rebuttable presumption that [spousal]

maintenance . . . is not warranted unless the [party] has exercised diligence in: (1) earning 

sufficient income to provide for [her] minimum reasonable needs; or (2) developing the 

necessary skills to provide for [her] minimum . . . needs” while the parties were separated and 

the case was pending. TEX. FAM. CODE ANN. § 8.053; see Quijano v. Amaya, No. 13-16-00485-

CV, 2018 WL 1870476, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 19, 2018, no pet.)

(mem. op.). 

Nathan does not dispute that he and Candice were married more than ten years or that she 

lacked both sufficient property and the ability to earn sufficient income to provide for her 

minimum reasonable needs. Rather, Nathan asserts that there is no evidence of Candice’s 

diligence to either earn sufficient income or to develop the necessary skills to provide for her 

minimum reasonable needs. Candice argues that her testimony that she secured employment, 

made arrangements to pay for her costs of living, and had plans to further her education, given 

the appropriate resources, was sufficient evidence to overcome the presumption that spousal 

maintenance was not warranted. 

Since Nathan did not have the burden of proof at trial, “his no-evidence complaint 

challenges the legal sufficiency of the evidence supporting the trial court’s exercise of its

1The determination of a spouse’s minimum reasonable needs is fact-specific and determined on a case-by-case basis. 

Hallman, 2010 WL 619290, at *5 (citing Deltuva, 113 S.W.3d at 888).
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discretion.” McCoy, 567 S.W.3d at 429. The evidence is legally insufficient if (1) there is “a 

complete absence of evidence of a vital fact”; (2) the “rules of law or of evidence [bar the court]

from giving weight to the only evidence offered to prove a vital fact”; (3) there is no more than a 

mere scintilla of “evidence offered to prove a vital fact”; or (4) the opposite of the vital fact is 

conclusively established by the evidence. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010). 

“More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable 

and fair-minded people to differ in their conclusions.” Sherman v. Sherman, 650 S.W.3d 897, 

899 (Tex. App.—Texarkana 2022, no pet.). “Less than a scintilla of evidence exists when the 

evidence is ‘so weak 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 case of In re Marriage of McFarland, Susan McFarland testified that she had been 

a homemaker for most of the marriage, that she had allowed her manicurist’s license to expire 

several years prior, and that she had only recently been able to find temporary employment

where she made between $7.00 and $9.00 per hour because of her limited education, training, 

and experience. In re Marriage of McFarland, 176 S.W.3d at 653–54. The trial court found 

that, if she “returned to school on a full-time basis, it would be unlikely that she could continue 

working a full-time job given the young ages of her three children.” Id. at 652. This court 

affirmed the award of spousal maintenance. Id. at 659–60.

Here, Candice testified that, for the latter portion of the school year, she worked as a 

teacher’s aide for the Red Lick School District. She did not work after the school year ended
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because paying for child-care for her three young children was cost prohibitive. Based on her 

high school education and lack of job training, the cost of daycare would exceed what she could 

earn working. She testified that she planned to continue working as an aide when the school year 

began again, and she had “look[ed] into” taking a course to “become certified as [a teacher’s] 

aid[e].” 

Candice had also applied for an “in the home” medical position, but her child-rearing 

responsibilities prevented her from taking the job. Candice testified that she had applied for and

obtained government assistance in the form of “food stamps,” drove a borrowed car, and 

obtained loans from her mother and mother-in-law to pay for her mortgage and clothing “for 

interviews.” On cross-examination, Candice conceded that she had not taken any college 

courses or job training to make herself more employable and, likewise, had not done “anything 

to help provide for [her] minimum reasonable needs.” 

Taken as a whole, Candice’s testimony is evidence of diligence. See In re Marriage of 

Eilers, 205 S.W.3d 637, 646 (Tex. App.—Waco 2006, pet. denied) (holding that evidence of 

wife’s low paying job and of her actions exploring other feasible jobs in the vicinity was 

evidence of diligence). Based on the foregoing, we find that there was more than a scintilla of 

evidence to support the trial court’s implied finding of diligence and that, therefore, the trial 

court was within its discretion to find that Candice was eligible to receive spousal maintenance. 

Accordingly, we overrule this point of error. 
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IV. Spousal Maintenance Period

Nathan contends that the trial court erred by ordering that spousal maintenance be paid 

for eighty-one months because that exceeds the statutory maximum time period. Candice agrees 

that was error. She states in her brief, “Given the facts of this case, the trial court committed 

error in awarding maintenance for a period of time which exceeded five (5) years.” We agree as 

well. 

The duration of a spousal maintenance order is limited by Section 8.054 of the Texas 

Family Code. See TEX. FAM. CODE ANN. § 8.054; Crane v. Crane, 188 S.W.3d 276, 279 (Tex.

App.—Fort Worth 2006, pet. denied). Where the parties have been married for more than ten 

years, but less than twenty years, the trial court may award spousal maintenance for a period of

up to five years. TEX. FAM. CODE ANN. § 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 fiveyear maximum period of sixty months. See id. Therefore, we sustain this point of error. Though 

we could, if we so determined, simply 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 amount and duration of the spousal maintenance ordered by the trial court were intertwined 

with other considerations best left to the trial court’s examination on remand.

At the conclusion of the divorce proceedings, the court stated,

The Court is going to order the sum of $1200 per month spousal support for 81

months. However, Mr. Lavender will be given credit for his equity in the home 

and what that does is basically makes it zero. So, he won’t have to pay spousal 

support out-of-pocket, but it’s coming out of his equity in the home, so that 

should be a wash.
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Rather than make an outright award of Nathan’s equity in the marital residence to Candice, the 

trial court ordered Nathan to pay monthly spousal maintenance in the form of equity “in lieu of” 

cash.2 The nunc pro tunc final decree of divorce stated:

However, in lieu of Nathan Levi Lavender being ordered 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 (81) months, IT IS ORDERED 

that Candice Marie Lavender shall retain Nathan Levi Lavender’s security interest 

in the marital residence located at 152 Cedar Ridge Circle, Texarkana, Bowie 

County, Texas, as awarded to Candice Marie Lavender hereinabove . . . .

When determining spousal maintenance, the trial court may consider the amount and 

liquidity of the property 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 property awarded in the 

divorce proceeding when determining whether to award spousal maintenance). While the

division of the marital estate can be considered when setting spousal maintenance, spousal 

maintenance serves a distinct function. See TEX. FAM. CODE ANN. § 8.051; see Dalton v. Dalton, 

551 S.W.3d 126, 130–31 (Tex. 2018) (discussing the historical background of court-ordered 

spousal maintenance, the statutory requirements for spousal maintenance, and the enforcement 

tools available for spousal maintenance that are not available for the enforcement of voluntary

spousal support agreements incorporated into a divorce decree).

2Though 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 marital residence.

The parties address this as a maintenance issue, and thus, we analyze it as such.
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In light of the above and given that the duration of maintenance ordered by the trial court 

exceeded the statutory maximum, we reverse the trial court’s judgment and remand to the trial 

court for further proceedings consistent with this opinion.

3

Jeff Rambin

Justice

Date Submitted: March 14, 2023

Date Decided: May 10, 2023

3Nathan also argues that the amount of spousal maintenance ordered, $1,200.00 per month, exceeds the statutory 

maximum amount of twenty percent of his “average monthly gross income.” See TEX. FAM. CODE ANN. § 8.055(a)

(“A court may not order maintenance that requires an obligor to pay monthly more than the lesser of: (1) $5,000; or 

(2) 20 percent of the spouses’ average monthly gross income.”). Both parties agree that twenty percent of Nathan’s 

regular paycheck comes to a monthly spousal maintenance amount of $1,017.66. The parties diverge, however, over 

the amount and regularity of Nathan’s income from other sources and whether any such income should be included

in Nathan’s average monthly income. Because we are remanding on other grounds, we do not resolve this point.