### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00010- CV

Colleen Dickinson , Appellan t

v. Bruce Dana Hardesty, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -F M- 13- 0069 78, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Colleen Dickinson contends that the trial court err ed by n o t aw ar d i n g her spousal maintenanc e fr om Bruc e Da na Ha rdesty . We will affirm the judg ment. We revie w the trial court’s decision on whether to awa rd spousal maintenanc e under an abuse of di scre tion standard. Tellez v. T ellez , 345 S.W .3d 689, 691 (Tex. App

. — Da l l as 2011,

no pet.). The trial co u rt abuses its discretion when it acts arbitra rily or unrea sonably , or without any ref ere nce to g uiding rules and pri n ci p l es . See E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W .2d 549, 558 (Tex. 1995). The trial court does not abuse it s d i s cr etion if there is some evidenc e of a substantive and probative char acte r to support the decision. Tellez , 345 S.W .3d at 691. An awa rd of spousal maintenanc e is discretionar y for the court if the spouse meets threshold criter ia, including those under w hich Dickinson soug ht maintenance : 1

There was no written pl eading for maintenance , but the parties plainly tried t he is sue b y 1 consent.[T] he court m ay order maintenanc e for eit her spouse only if the spouse seeking

maintenanc e will lack sufficient property , including the spouse’s separ ate proper ty , on dissoluti on of the marria g e to provide for the spouse’s minimum rea sonable needs and :

. . . (2) the spouse seeking maintenanc e:

(A) is unab l

e to earn sufficient incom e to provide for the spouse’s m inim um reason a ble needs beca use of an incapacitatin g phy sical or menta l disabilit y ; Tex. Fam. Code § 8.051 (e mphases adde d).

Har desty testified that Dickinson was rec eiving disabil i ty pay ments befor e they marrie d in 2 010. Dickinson testified that she had lupus hy perte nsion arr

hy thmia and that she

was able to work when they marrie d beca use her condition was then under contro l

. S h o rt l y afte r they marrie d, Har desty was diag nosed with throat canc er. Dickinson testified that she quit working 2 during the marria g e t o t ak e car e of her pare nts and then Har desty when he was diag nosed with

canc er. Har desty testified that Dickins o n an d h er brother tried to manag e his veter inary prac tice. He testified about his income, including investments and other income, and his impending tax debt due to his brother- in-law’s alleg ed underr eporting of Har desty ’s income in previous y ear s. Har desty also had issues with the I nterna l Revenue Ser vice f rom pre- marria g e conduc t. Har desty testified that Dickinson was seeking work when they separ ated near the end of 2013, but Dickinson testified that at the time of trial her doctors would not let her work. She said that she was suffe ring night swea ts, improper sleep, and swollen ankles and wrists. Dickinson testified that she rec eived $814 per month in social-se curity pay ments and food stamps and, based

He wa s in remission at trial. 2 2on her inc ome, lived in Section 8 housing for $142 per month. She asse rted that she quit wor king to take car e of Har desty when he had canc er in exchang e for his promise that he would take car e of her when he reg ained his health. She testified that he did not pay her for her work at the veter inary clinic and hid fa rm i n co m e from her. She also claimed $100,000 in damag es due to his alleg ed assault and battery to compensa te her fo r co u n s eling and medications. There was evidenc e that the m axim um spousal maintenanc e award for Di ck i n son based on Har desty ’s i ncome was $1,667 per month. Dickinson testified that if the court awa rded her spousal maintena n ce she might lose some or all of he r g overnme ntal supplement pay ments totaling $1,482 pe r month. The trial cou rt g rante d the divorce , denied the assault and fra ud claims, divided the assets (g ranting Dickinson the l arg er share of the communi ty portion of Hardesty ’s retirement

acc ounts), and denied spousal maintenanc e. No findi ng s of fact or conclusions of law were filed.

The trial court hear d the evidenc e and exercised its discretion. Dickinson indicates that the trial court improperly considere d the exis tence of her disability when the marria g e beg an and the three -y ear duration of the marria g e as a rea son not to find Har desty liable to provide her spousal maintenanc e. Although those issues wer e discussed during closing arg ument, the trial court did not state them as a basis for the fi n al d ec i s i o n eit her orally or in the written divorce decr ee. The court may have de cided that the la

rg er sha re of community

proper ty , combined with her subsidies and potential for work income, provided enoug h for Dickinson to p rovide for her minimum

rea sonable needs. Dickinson has not shown that th e t ri al court acte d unrea sonably , arbitra rily , or wi thout ref

ere nce to g uiding rules and principles. We find no abuse of discretion in th e d en i al o f spousal maintenanc e pay ments. See Tellez , 345 S

. W

. 3 d at 691; see also Robinson , 923 S.W .2d at 558. 3We affir m the divorce decr ee.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: May

25, 2016

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