Opinion issued December 22, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00023-CV

———————————

JEFFERY DWAYNE BENOIT, Appellant

V.

BRENDA FAYE BENOIT, Appellee

On Appeal from County Court at Law No. 2

Orange County, Texas

Trial Court Case No. E-140080-D1

MEMORANDUM OPINION

Jeffrey Dwayne Benoit appeals from a divorce decree, dissolving his 

marriage to Brenda Faye Benoit. In fifteen issues, Jeffrey challenges the trial 

 

1 This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was 

transferred by the Supreme Court of Texas, pursuant to its docket equalization 

authority, to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE 

ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
2

court’s award of spousal maintenance and its award of appellate attorney’s fees in 

a post-decree temporary order. 

We affirm the divorce decree. We reverse the portion of the post-decree

order awarding attorney’s fees and remand that issue to the trial court for 

redetermination. 

Background

Brenda and Jeffrey were married on February 16, 1990. Jeffrey filed for 

divorce on January 14, 2013. Brenda filed a counter-petition. Before trial, the 

parties entered into a Rule 11 agreement, governing the division of property and 

debts between the parties. The case was tried to the bench on August 14, 2014. 

The parties agreed that the only issue to be resolved at trial was whether Brenda 

was entitled to spousal maintenance. 

At trial, Brenda stated that she would be 65 years old the following month. 

She testified that she netted $706 per month in social security disability benefits,

and she confirmed that would be her only income after the divorce.

2 She stated 

that she had been receiving disability benefits since 2005. Brenda testified that she 

had been employed in the past, but she had to stop working because she suffered 

from spasms in her neck, back, legs, arms, and hands, and she has carpal tunnel 

 

2 Brenda testified that the gross amount of her disability benefits was $806; 

however, $100 of that amount is paid to Medicare. 
3

syndrome. With respect to her educational level, Brenda indicated that she had a 

GED. 

Brenda also presented evidence to establish her monthly living expenses. As 

an exhibit, Brenda offered an expense sheet listing her monthly expenses in 12 

different categories. Brenda testified regarding a number of these categories. The 

evidence showed that her monthly living expenses were $2,809. 

Averaging Jeffrey’s earnings from the last three years, Brenda submitted 

evidence indicating that Jeffrey had an average monthly income of $8,122.75. 

Brenda requested that she receive 20 percent, or $1,625 a month, in spousal 

maintenance from Jeffrey for the next seven years. In its October 30, 2014 decree, 

the trial court granted Brenda’s request and ordered Jeffrey to pay Brenda $1,625 a 

month in spousal maintenance for seven years. The decree also provided that early 

termination of the spousal maintenance provision would occur at the death of 

either party, Brenda’s re-marriage, or on further order by the trial court, including a 

finding of cohabitation by Brenda. The decree also divided the property and debt 

as set out in the parties’ Rule 11 agreement. 

Jeffrey requested findings of fact and conclusions of law, which were filed 

by the trial court. Among its findings of fact, the trial court determined:

4. [Brenda] will lack sufficient property, including her separate 

property, on dissolution of the marriage to provide for her 

minimum reasonable needs.
4

5. [Brenda] is unable to earn sufficient income to provide for her 

minimum reasonable needs because of an incapacitating 

physical disability. 

6. The following factors were taken into consideration in 

determining the nature, amount, duration, and manner of 

periodic payments:

(a) each spouse’s ability to provide for that spouse’s 

minimum reasonable needs independently, considering 

that spouse’s financial resources on dissolution of the 

marriage;

(b) the education and employment skills of the spouses, 

the time necessary to acquire sufficient education or 

training to enable the spouse seeking maintenance to earn 

sufficient income, and the availability and feasibility of 

that education or training;

(c) the duration of the marriage;

(d) the age, employment history, earning ability, and 

physical and emotional condition of the spouse seeking 

maintenance;

(e) the effect on each spouse’s ability to provide for that 

spouse’s minimum reasonable needs while providing 

periodic child support payments or maintenance, if 

applicable;

(f) acts by either spouse resulting in excessive or 

abnormal expenditures or destruction, concealment, or 
5

fraudulent disposition of community property, joint 

tenancy, or other property held in common;

(g) the contribution by one spouse to the education, 

training, or increased earning power of the other spouse;

(h) the property brought to the marriage by either spouse; 

and

(i) the contribution of a spouse as homemaker.

7. [Brenda] and [Jeffrey] were married for at least twenty years 

but not more than thirty years.

8. [Jeffrey] is forty-seven years old. [Brenda] is sixty-five years 

old.

9. [Brenda’s] ability to provide for her minimum reasonable needs 

is substantially or totally diminished because of a physical 

disability. [Brenda] is currently receiving Social Security 

Disability benefits.

10. The average monthly gross income of [Jeffrey] is $8,122.75. 

Twenty percent (20%) of that amount is $1,624.55.

11. [Brenda’s] monthly gross income, including the court ordered 

spousal maintenance, is $2,331.00. [Brenda’s] average monthly 

living expenses are $2,809.00.
6

Based on the findings of fact, the trial court stated, in a conclusion of law, that 

Jeffrey should pay monthly spousal maintenance of $1,625 to Brenda for seven 

years. 

Jeffrey appealed the trial court’s decree on November 24, 2014. That same 

day, Brenda filed a motion for temporary orders, pending appeal. In response to 

Brenda’s request for temporary orders, Jeffrey filed a plea to the jurisdiction. He 

asserted that the trial court lost plenary power when the notice of appeal was filed. 

The trial court conducted a hearing on the plea to the jurisdiction and on the 

request for temporary orders. The trial court denied Jeffrey’s plea and granted 

Brenda’s request for temporary orders. On December 15, 2014, the trial court 

signed an order, requiring Jeffrey to pay Brenda $1,625.00 per month in temporary 

spousal support, while the appeal is pending. The order also required Jeffrey to 

pay Brenda $5,000 in appellate attorneys’ fees by March 1, 2015. The award was 

not conditioned on Jeffrey’s failure to succeed on appeal.

This appeal was originally filed in the Ninth Court of Appeals. In that court, 

Jeffrey filed a motion to stay, abate, vacate, or reform the trial court’s 

unconditional award of $5,000 appellate attorneys’ fees. On January 8, 2015, the 

Supreme Court of Texas transferred the appeal to this Court pursuant to its docket 

equalization authority. As a result, Jeffrey’s motion to stay, abate, vacate, or 

reform the trial court’s unconditional award of $5,000 in appellate attorneys’ fees 
7

was also transferred to this Court. In considering the motion, we explained that the 

$5,000 attorneys’ fee award should have been conditioned on Jeffrey’s 

unsuccessful appeal. We noted that such error did not require reversal of the order

because the order could be modified on appeal. We stayed the trial court’s

temporary order with respect to the requirement that Jeffrey had to pay Brenda 

$5,000 for appellate attorney’s fee. Although we granted Jeffrey’s motion with 

respect to the stay, we did not modify the attorney’s fees award. Instead, we 

ordered that Jeffrey’s alternate motion to abate, vacate, or reform the trial court’s 

temporary order would be considered with the merits of the appeal. 

Spousal Maintenance

Jeffrey challenges that trial court’s award of spousal maintenance in his first 

through eleventh issues and in his fifteenth issue.

A. Standard of Review

We review a trial court’s ruling on spousal maintenance under an abuse of 

discretion standard. Tomsu v. Tomsu, 381 S.W.3d 715, 718 (Tex. App.—

Beaumont 2012, no pet.); Bonner v. Bonner, No. 09–11–00194–CV, 2011 WL 

5588746, at *1 (Tex. App.—Beaumont Nov. 17, 2011, no pet.) (mem. op.) (citing 

Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.—Dallas 2001, pet. denied)). A 

trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, 

or when it acts without reference to any guiding principles. Downer v. 
8

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court’s 

findings of fact are reviewed for legal and factual sufficiency of the evidence under 

the same legal standards applied to review jury verdicts for legal and factual 

sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); 

Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). 

The abuse-of-discretion standard of review overlaps with traditional 

sufficiency standards of review in family law cases. See In re S.N.Z., 421 S.W.3d 

899, 908–09 (Tex. App.—Dallas 2014, pet. denied). As a result, legal and factual 

insufficiency challenges are not independent grounds for reversal; rather, these 

challenges constitute factors relevant to the assessment of whether the trial court

abused its discretion. See Wilson v. Wilson, No. 09–07–484 CV, 2008 WL 

2758147, at * 1 (Tex. App.—Beaumont July 17, 2008, no pet.) (referencing

Granger v. Granger, 236 S.W.3d 852, 856 (Tex. App.—Tyler 2007, pet. denied)); 

Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). 

“Accordingly, to determine whether there has been an abuse of discretion because 

the evidence is legally or factually insufficient to support the trial court’s decision, 

we engage in a two-pronged inquiry: (1) did the trial court have sufficient evidence 

upon which to exercise its discretion, and (2) did the trial court err in its 

application of that discretion?” Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—

Fort Worth 2004, no pet.). 
9

With respect to the first question, we apply the appropriate sufficiency 

standard. In re B.P.R., No. 09–12–00575–CV, 2014 WL 5306530, at *5 (Tex. 

App.—Beaumont Oct. 16, 2014, no pet.) (citing Boyd, 131 S.W.3d at 611). With 

respect to the second question, we determine whether, based on the evidence 

presented at trial, the trial court made a reasonable decision. Id. (citing Moroch, 

174 S.W.3d at 857). “Stated inversely, we must conclude that the trial court’s 

decision was neither arbitrary nor unreasonable.” Boyd, 131 S.W.3d at 611.

In determining whether there is legally sufficient evidence to support a 

finding, we examine the record and credit evidence favorable to the finding if a 

reasonable factfinder could and disregard evidence contrary to the finding unless a 

reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 

827 (Tex. 2005). A trial judge does not abuse his discretion if some evidence of a 

substantial and probative character exists to support the decision. Wilson, 2008 

WL 2758147, at * 1 (citing Granger, 236 S.W.3d at 855–56).

In a factual sufficiency review, we consider all the evidence supporting and 

contradicting the factfinder’s finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 

242 (Tex. 2001). The evidence is factually insufficient if the finding is so against 

the great weight and preponderance of the evidence as to be clearly wrong and 

unjust. Id. When sitting as factfinder, the trial court is in the best position to judge 
10

and weigh all the evidence presented and resolve the substantial conflicts in the 

evidence. See Wilson, 2010 WL 2545579, at *5–6.

B. Applicability of Presumption against Spousal Maintenance

In his first three issues, Jeffrey asserts that Brenda failed to rebut the 

statutory presumption, found in Family Code section 8.503, that spousal 

maintenance is not warranted. Brenda responds that, pursuant to the trial court’s 

findings of fact, the presumption does not apply to the trial court’s award in this 

case. We agree with Brenda. 

A trial court may exercise its discretion and award spousal maintenance if 

the party seeking maintenance meets specific eligibility requirements found in 

Family Code section 8.051, entitled “Eligibility for Maintenance.” TEX. FAM.

CODE ANN. § 8.051 (Vernon Supp. 2014). Relevant to this case, Family Code 

section 8.051(2) provides:

In a suit for dissolution of a marriage or in a proceeding for 

maintenance in a court with personal jurisdiction over both former 

spouses following the dissolution of their marriage by a court that 

lacked personal jurisdiction over an absent spouse, the court may 

order maintenance for either spouse only if the spouse seeking 

maintenance will lack sufficient property, including the spouse’s 

separate property, on dissolution of the marriage to provide for the 

spouse’s minimum reasonable needs and:

. . . .

(2) the spouse seeking maintenance:
11

(A) is unable to earn sufficient income to provide for the 

spouse’s minimum reasonable needs because of an 

incapacitating physical or mental disability;

(B) has been married to the other spouse for 10 years or longer 

and lacks the ability to earn sufficient income to provide for the 

spouse’s minimum reasonable needs; or

(C) is the custodian of a child of the marriage of any age who 

requires substantial care and personal supervision because of a 

physical or mental disability that prevents the spouse from 

earning sufficient income to provide for the spouse’s minimum 

reasonable needs.

Id.

In its findings of fact, the trial court determined that “[Brenda] is unable to 

earn sufficient income to provide for her minimum reasonable needs because of an 

incapacitating physical disability.”3 The trial court’s finding indicates that it

 

3

Jeffrey has raised no specific issue challenging this finding. He does, however, 

weave comments throughout his briefing that indicate he questions the trial court’s 

incapacity finding. In any event, we note that sufficient evidence was presented to 

support this finding. Brenda, who was almost 65 years old, testified that she has 

been receiving social security disability payments since 2005. She also testified 

that she worked as a endoscopy technician in a doctors’ office until 2000. As part 

of her job she had to use a scope. She had to quit that job because she had neck, 

back, leg, arm, and hand spasms, and she could no longer grip the scope. In 

addition, she stated that she has carpal tunnel syndrome, which prevented her from 

being able to perform her job duties. Brenda later worked part-time at a daycare. 

She testified that she had to quit that job because, on a number of occasions, she 

nearly dropped babies that she was holding due to her weak arms. Brenda 

admitted that she can engage in certain household and recreational activities. She 

testified that she does these activities at her own pace and that, after she engages in 

certain activities, she “pay[s] for it the next day.” From this, the trial court could 

have reasonably found that, while Brenda can engage in certain activities on 

occasion, she could not engage in them for employment purposes. 
12

determined Brenda was entitled to spousal maintenance pursuant to Family Code 

section 8.051(2)(A). See id.

In his brief, Jeffrey asserts that Brenda was required to “overcome the 

presumption found in [Family Code section] 8.053 that maintenance would be 

unwarranted for her.” We disagree. 

Section 8.053 provides,

(a) It is a rebuttable presumption that maintenance under Section 

8.051(2)(B) is not warranted unless the spouse seeking maintenance 

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.

Id. § 8.053 (Vernon Supp. 2014). Reading the plain language of section 8.053, a 

spouse who has been found under section 8.051(2)(B) to be eligible to receive 

spousal maintenance because she “has been married to the other spouse for 10 

years or longer and lacks the ability to earn sufficient income to provide for the 

spouse’s minimum reasonable needs” must also rebut the section 8.053 

presumption that maintenance is unwarranted. Id. §§ 8.051(2)(B), 8.053; see Day 

v. Day, 452 S.W.3d 430, 434–35 (Tex. App.—Houston [1st Dist.] 2014, pet. 

denied). To rebut the presumption, a spouse eligible for maintenance under section 
13

8.051(2)(B) must show that she has “exercised diligence” in “earning sufficient 

income to provide for the spouse’s minimum reasonable needs” or in “developing 

the necessary skills to provide for the spouse’s minimum reasonable needs.” Id. 

§ 8.053; see Day, 452 S.W.3d at 434–35. 

As mentioned, the trial court found Brenda was eligible to receive spousal 

maintenance under section 8.051(2)(A) because she was “unable to earn sufficient 

income to provide for her minimum reasonable needs because of an incapacitating 

physical disability.” The trial court did not find she was eligible to receive 

maintenance under section 8.051(2)(B). The rebuttable presumption against 

maintenance, stated in section 8.053, does not apply in this case. As a result, 

Brenda had no obligation to offer evidence showing that she “exercised diligence” 

in “earning sufficient income to provide for [her] minimum reasonable needs” or in 

“developing the necessary skills to provide for [her] minimum reasonable needs,” 

as required by section 8.053. Id. § 8.053. 

In his brief, Jeffrey points out that Family Code section 8.053 was amended 

in 2011. Act of May 18, 2011, 82nd Leg., R.S., ch. 486, § 9, 2011 Tex. Sess. Law 

Serv. 1239, 1242. The amendment is the current version of the statute and applies 

to this case. See Act of May 18, 2011, 82nd Leg., R.S., ch. 486, § 10(a), 2011 Tex. 

Sess. Law Serv. 1239, 1242. Jeffrey notes that, before that amendment, section 

8.053 specifically excluded spouses who had “an incapacitating physical or mental 
14

disability” from the rebuttal presumption. Act of April 3, 1997, 75th Leg., R.S., 

ch. 7, § 1, sec. 8.004, 1997 Tex. Sess. Law Serv. 8, 35 (renumbered 2001 and 

amended 2011) (current version at TEX. FAM. CODE ANN. § 8.053). Jeffrey points 

out that the 2011 amendment to section 8.053 deleted this exclusion. See TEX.

FAM. CODE ANN. § 8.053. He asserts that the deletion of the exclusionary language 

shows that the rebuttable presumption applies to Brenda. However, Jeffrey fails to 

recognize that section 8.053, as amended, now only provides when the rebuttable 

presumption does apply, rather than also stating, as it previously did, when it does 

not apply. Under the statute’s plain language, the rebuttable presumption applies 

only to spouses found to be eligible for maintenance pursuant to section 

8.051(2)(B); it does not apply to a spouse, such as Brenda, who is found to be 

eligible for maintenance under 8.051(2)(A) because she has an incapacitating 

physical disability. 

Even if the presumption did apply, Brenda offered ample evidence showing 

that she could no longer work. As discussed above, 65-year-old Brenda has been 

receiving disability benefits since 2005. She has no education beyond a GED. She 

had to quit her job at a doctor’s office in 2000 because she could no longer perform 

her job duties due to spasms in her back, neck, legs, arms, and hands. She also has 

carpal tunnel syndrome, which affects her ability to work. After working at the 

doctor’s office, Brenda had a part-time job in a daycare. Brenda had to quit that 
15

job after she nearly dropped babies she was holding on a couple of occasions 

because of her diminished arm strength. 

We note Jeffrey points out that Brenda admitted that she mows her own 

grass, cleans her own house, and has gone fishing and bowling. Addressing this 

evidence, Brenda testified that she completes tasks at her own pace and that her 

grandchildren help her with her yard work. She acknowledged that she has 

engaged in recreational activities, but she indicated that she suffers later for it. In 

sum, the evidence showed that, while Brenda could engage in certain activities 

occasionally, she could not engage in them for a sustained period of time for 

employment purposes. Applying the appropriate standards of review, the evidence 

is legally and factually sufficient to rebut the section 8.053 presumption against 

maintenance. Thus, it was within the trial court’s discretion to determine that 

Brenda had rebutted the presumption.

We are also mindful that, in its findings of fact, the trial court indicated that 

it took the following into consideration when determining maintenance: (1) “each 

spouse’s ability to provide for that spouse’s minimum reasonable needs 

independently, considering that spouse’s financial resources on dissolution of the 

marriage”; (2) “the education and employment skills of the spouses, the time 

necessary to acquire sufficient education or training to enable the spouse seeking 

maintenance to earn sufficient income, and the availability and feasibility of that 
16

education or training”; and (3) “the age, employment history, earning ability, and 

physical and emotional condition of the spouse seeking maintenance.” These 

findings indicate that the trial court did take Brenda’s employability and earning 

capacity into consideration when it determined maintenance. 

We overrule Jeffrey’s first three issues. 

C. Marital Standard of Living

In his fourth issue, Jeffrey challenges the basis for the monthly $1,625

maintenance. Jeffrey claims that the trial court abused its discretion by improperly 

basing the award on Brenda’s “former marital standard of living.” 

As mentioned, Family Code section 8.051 provides that a trial court may 

order spousal maintenance if the spouse seeking maintenance will lack sufficient 

property upon dissolution of the marriage to provide for her minimum reasonable 

needs and if certain other conditions are satisfied. TEX. FAM. CODE ANN. § 8.051. 

Family Code section 8.052 lists factors for the trial court to consider when

determining the “nature, amount, duration, and manner” of spousal maintenance. 

TEX. FAM. CODE ANN. § 8.052 (Vernon Supp. 2014). These factors include the 

following: (1) the ability of the spouse seeking maintenance to provide for his or 

her own minimum reasonable needs independently; (2) the spouses’ education and 

employment skills; (3) the duration of the marriage; (4) the age, employment 

history, earning ability, and physical and emotional condition of the spouse seeking 
17

maintenance; (5) the effect on each spouse’s ability to provide for that spouse’s 

minimum reasonable needs while providing periodic child support payments or 

maintenance, if applicable; (6) “acts by either spouse resulting in excessive or 

abnormal expenditures or destruction, concealment, or fraudulent disposition of 

community property”; (7) the contribution by one spouse to the education, training, 

or increased earning power of the other spouse; (8) property brought to the 

marriage by either spouse; and (9) the contribution of a spouse as homemaker. Id. 

In its findings of fact, the trial court stated that it considered the foregoing

nine factors, including Brenda’s ability to meet her own “minimum reasonable 

needs,” when it determined the nature, amount, duration, and manner of the 

spousal maintenance award. Jeffrey asserts that the maintenance award was not 

based on Brenda’s minimum reasonable needs; rather, he claims it was improperly 

based on Brenda’s “former marital standard of living.” In support of this assertion, 

Jeffrey avers that the trial court “look[ed] to what [Brenda] was buying during her 

marriage to [Jeffrey].” 

To establish her living expenses, Brenda offered into evidence, without 

objection from Jeffrey, a list of the following monthly expenses: 
18

1. House Note $879.00

2. Car Note $225.00

3. Car Insurance $ 85.00

4. Utilities $300.00

5. Gasoline $350.00

6. Food $300.00

7. Various Sundries $200.00

8. Health Insurance $100.00

9. Clothes $100.00

10. Cell Phone $130.00

11. House Insurance $70.00

12. Property Taxes $70.00

Total Living Expenses $2,809.00

Brenda also testified regarding a number of these expenses.4 

To support his argument that the trial court’s award was based on Brenda’s 

marital standard of living, rather than her minimum reasonable needs, Jeffrey 

points out that Brenda’s itemized expenses included payments for a pickup truck 

and the couple’s home, items purchased during their marriage. However, these 

items were listed to show Brenda’s post-divorce living expenses, not to show her 

marital standard of living. The two cited items related to housing and 

transportation, items that the trial court could have reasonably inferred were 

reasonable living necessities. Brenda made no attempt to offer evidence to show 

her marital lifestyle. To the contrary, at trial, Brenda’s attorney asked her, “[Y]ou 

 

4 Brenda clarified that the monthly house-note payment was actually $979.00 rather 

than $879.00. Thus, Brenda’s total monthly expenses are $2,909.00 rather than 

$2,809.00. However, the trial court found Brenda’s monthly living expenses to be 

$2,809, so that is the amount to which we will also refer.
19

understand that I cannot—based on limitations under the law—potentially keep 

you in the lifestyle to which you were accustomed when you have a husband 

earning 90 to 100,000 a year? I mean, I can’t get you there.” Brenda 

acknowledged she understood that the maintenance award would not maintain her 

marital lifestyle. And, as mentioned, the trial court’s findings of fact reflect that 

the trial court properly considered the statutory factors listed in Family Code 

section 8.052 in determining the amount of the maintenance. See TEX. FAM. CODE 

ANN. § 8.052. The stated factors did not include consideration of Brenda’s former 

marital standard of living. We conclude that Jeffrey has not shown that the trial 

court abused its discretion by basing the maintenance award on an improper 

standard. 

We overrule Jeffrey’s fourth issue. 

D. Minimum Reasonable Needs

In his fifth issue, Jeffrey asserts that the trial court abused its discretion by 

awarding Brenda “spousal maintenance amounts which exceed her ‘minimum 

reasonable needs.’” See TEX. FAM. CODE ANN. § 8.051.

The term “minimum reasonable needs” is not defined in the Family Code. 

Slicker v. Slicker, 464 S.W.3d 850, 860 (Tex. App.—Dallas 2015, no pet.) (citing 

Cooper v. Cooper, 176 S.W.3d 62, 64 (Tex. App.—Houston [1st Dist.] 2004, no 

pet.)). A trial court determines whether a party’s minimum reasonable needs are 
20

met on a fact-specific, individualized, case-by-case basis. Slicker, 464 S.W.3d at 

860 (citing Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus Christi 2002, 

no pet.)). In its fourth finding of fact, the trial court determined that “[Brenda] will 

lack sufficient property, including her separate property, on dissolution of the 

marriage to provide for her minimum reasonable needs.”

The Rule 11 agreement provided that Brenda would be awarded the couple’s 

marital homestead in Mauriceville, Texas, and a pickup truck. Money was still 

owed on each of these items. In her expense statement, Brenda listed the $879

house note for the Mauriceville home and the $225 car note for the pickup truck as 

monthly expenses. On appeal, Jeffrey asserts that the trial court should not have 

considered the $879 house note or the $225 car note in determining Brenda’s 

monthly living expenses. Jeffrey points out that, in addition to being awarded 

these items, Brenda was also awarded, as her separate property, a classic 1965 

Mustang and a lake home. Jeffrey avers that, because she was awarded her 

separate property, the Mustang and the lake home, Brenda “has a place to stay and 

a way around (i.e., shelter and transportation).” For this reason, Jeffrey asserts that 

the $879 house note and the $225 car note should not be included as a basis for 

spousal maintenance. Jeffrey claims that inclusion of these expenses in the amount 

of maintenance was an abuse of the trial court’s discretion. 
21

At trial, Brenda testified that the market value of the lake house was $28,000 

to $30,000. As Brenda points out, no evidence was offered to show the condition 

or habitability of the lake house. Jeffrey’s attorney asked Brenda if she knew that 

the tax rolls indicated the lake house was valued at $45,000. Brenda responded 

that she had protested the $45,000 valuation because of the condition of the house. 

She stated that the value on the tax rolls was then lowered. From this testimony, 

the trial court may have inferred that the home was in need of repair. 

With regard to the 1965 Mustang, Brenda testified that it had been appraised 

at $22,995. However, no evidence was presented whether the the 50-year-old car 

was operable or in good working condition. The trial court may have reasonably 

inferred that a 50-year-old car Mustang would not be practical transportation for 

everyday use for a 65-year-old disabled woman. Given the fact-specific nature of 

the inquiry, it was within the trial court’s discretion to consider the house and car 

notes in determining Brenda’s reasonable minimum needs. 

We overrule Jeffrey’s fifth issue.

E. Factual Sufficiency of Evidence to Support Maintenance of $1,625

Jeffrey frames his sixth issues as follows: “The evidence was factually 

insufficient to set spousal maintenance at $1,625 per month, where [Brenda’s] 

monthly expense sheet contained vague headings which claimed expenses in round 

numbers, but had no receipts to verify the amount claimed.” Jeffrey asserts that 
22

Brenda’s monthly expense sheet, to which he offered no objection at trial, 

“contains ubiquitous and overbroad categories for which no receipts were put in 

evidence, such as ‘Various Sundries,’ which are valued at $200/month.” Jeffrey 

also asserts that the $130 cellular phone bill that Brenda listed on her expense sheet 

should not have been considered by the trial court in its determination of spousal 

maintenance. 

Jeffrey remarks that Brenda did not offer receipts to support her claimed 

monthly expenses. There is, however, no requirement that a spouse produce 

receipts as evidence of her minimum reasonable needs. In fact, other courts have 

upheld an award of maintenance even when the spouse receiving maintenance had 

not submitted a list of expenses. See, e.g., Diaz v. Diaz, 350 S.W.3d 251, 254–55 

(Tex. App.—San Antonio June 22, 2011, pet. denied) (noting that “[w]hile a list of 

expenses is helpful, such a list is not the only evidence upon which a trial court can 

determine a person’s ‘minimum reasonable needs’”) (citing Trueheart v. 

Trueheart, No. 14–02–01256–CV, 2003 WL 22176626, at *2 (Tex. App.—

Houston [14th Dist.] Sept. 23, 2003, no pet.) (mem. op.) (rejecting husband’s 

argument that wife was required to offer itemized list of monthly expenses as 

evidence to support her minimum reasonable needs)). Here, Brenda did provide a 

monthly expense sheet and testified regarding certain categories listed on the sheet. 
23

With respect to the $200 expense listed under the heading “various 

sundries,” Jeffrey complains, “[I]t is never specified anywhere what this is other 

than to imply it means woman’s toiletries, which largely are not necessaries, nor 

should they be so expensive for a post-menopausal woman.” At trial, Brenda’s 

attorney questioned her about this category. He stated: “And when I said various 

sundries I put on here, that’s lady stuff. I don’t know all the stuff you guys buy; 

but you might get some makeup or you might have some other items that you buy 

that we estimated at $200 a month.” Brenda responded affirmatively. 

Besides challenging the $200 expense for “women’s toiletries,” Jeffrey also 

characterizes Brenda’s monthly cell phone bill as being “exorbitant.” But, Jeffrey 

points to no evidence to show that the $130 bill was not an acceptable charge. 

Jeffrey further avers that an unemployed 65-year-old woman has no need of a cell 

phone. However, the trial court may have reasoned that it was because Brenda is a 

65-year-old woman with disabilities that she needs a mobile phone. 

Jeffrey also points to language in Tedder v. Gardner Aldrich, LLP in which 

the Supreme Court of Texas stated, “We have suggested that a spouse’s necessaries 

are things like food, clothing, and habitation—that is, sustenance—and we have 

squarely rejected the view that a spouse’s legal fees in a divorce proceeding fall 

into this category.” 421 S.W.3d 651, 656 (Tex. 2013) (footnotes omitted). This 

statement in Tedder was made in the context of the court’s determination of 
24

whether a husband was liable for his wife’s legal fees incurred in their divorce 

proceeding. See id. Tedder is of limited guidance here because it did not involve a 

determination of what is appropriately considered in determining a spouse’s 

minimum reasonable needs in the context of awarding monthly spousal 

maintenance. Thus, Tedder did not compel the trial court to discount the expenses 

for the cell phone and “women’s toiletries,” as Jeffrey claims. 

As mentioned, the term “minimum reasonable needs” is not defined in the 

Family Code. Slicker, 464 S.W.3d at 860. Nor has any case authority attempted to 

define it. Rather, a trial court determines whether a party’s minimum reasonable 

needs are met on a fact-specific, individualized, case-by-case basis. Id. As one 

court correctly observed, “Deciding what the minimum reasonable need is for a 

particular individual or family is a fact-specific determination that ordinarily 

should be made by the trial court.” In re Marriage of Hale, 975 S.W.2d 694, 698 

(Tex. App.—Texarkana 1998, no pet.). Given the realities of modern living and 

the evidence in the record, the trial court could have reasonably determined that the 

monthly fee for the cell phone and “various sundries” fell within Brenda’s 

reasonable minimum needs. See id. (rejecting husband’s argument that credit card 

bill was not a “need” within the context of determining minimum reasonable needs 

for spousal maintenance).
25

In any event, even if we were to subtract the $330 for these two items from 

Brenda’s monthly living expenses of $2,809, her monthly expenses would be 

$2,479. This still exceeds Brenda’s net income of $706 a month and supports a 

determination by the trial court that Brenda lacked sufficient property to meet her 

minimum reasonable needs. See TEX. FAM. CODE ANN. § 8.051. 

Jeffrey also intimates that the specific amount of the maintenance—$1,625 

per month—was not supportable because of the claimed deficiencies with these 

two items. However, the trial court did not indicate that the $1,625 per month 

maintenance was intended to be a one-to-one correspondence with Brenda’s 

monthly living expenses. Nor does the Family Code require such a one-to-one 

correspondence in setting the amount of maintenance. Rather, Family Code 

section 8.502 lists factors for the trial court to consider when determining “the 

nature, amount, duration, and manner” of the maintenance award. See TEX. FAM.

CODE ANN. § 8.052. Here, the trial court stated that it relied on a number of these 

factors in determining the award, including Brenda’s ability to provide for her own 

minimum reasonable needs independently. 

With respect to the specific amount of maintenance, Family Code section 

8.055 provides that a court may not order a spouse to pay monthly maintenance in 

an amount more than the lesser of $5,000 or 20 percent of the spouse’s average 

monthly gross income. TEX. FAM. CODE ANN. § 8.055(a) (Vernon Supp. 2014). 
26

Within the parameters of section 8.055, the trial court found: “The average 

monthly gross income of [Jeffrey] is $8,122.75. Twenty percent (20%) of that 

amount is $1,624.55.”

After considering Jeffrey’s assertions in this issue, we conclude that the trial 

court’s award of $1,625 is not so against the great weight and preponderance of the 

evidence that it is clearly wrong and unjust. Within the context of this issue, 

Jeffrey has not shown that the trial court abused its discretion when it awarded 

Brenda $1,625 in monthly spousal maintenance.

We overrule Jeffrey’s sixth issue.

F. Debts for the Mauriceville Home and the Truck

In his seventh and eighth issues, Jeffrey asserts that the trial court abused its 

discretion because the spousal maintenance award violates the parties’ Rule 11 

agreement wherein the parties agreed to the division of property and debts. The 

Rule 11 agreement was approved by the trial court and its terms incorporated into 

the final divorce decree.

Pursuant to the Rule 11 agreement, Brenda was awarded the couple’s 

Mauriceville home and a pickup truck. Both the home and the truck had 

outstanding debt. The monthly payment on the house note is $979 (though 

Brenda’s expense sheet states it as $879) and the monthly payment on the car note
27

is $225. It is not in dispute that, under the Rule 11 agreement, Brenda is 

responsible for paying the house note and the car note. 

At trial, Brenda showed that her monthly living expenses were $2,809. 

Without objection from Jeffrey, Brenda included the $879 house note and the $225

car note in this sum. In his brief, Jeffrey claims that the trial court abused its 

discretion because it “found that [Jeffrey] would pay both notes on the homestead 

and the truck over the next 7 years as maintenance.” Jeffrey asserts “[c]onverting a 

debt into spousal maintenance is a change in the substantive division of the 

property. . . .” Jeffrey intimates that the trial court converted the debts for the 

house and car notes into spousal maintenance. Jeffrey’s assertion is not, however, 

supported by the record.

As discussed above, the trial court’s findings of fact indicate that it 

determined the nature, amount, duration, and manner of maintenance by applying 

factors listed in Family Code section 8.052. And, the specific award of $1,625 is 

20 percent of Jeffrey’s average monthly income, as permitted by Family Code 

section 8.055. See TEX. FAM. CODE ANN. § 8.055(a). Nothing in the record 

indicates that the $1,625 maintenance was intended to correspond to the $225 car 

note or to the $879 house note any more than it was intended to correspond to

Brenda’s remaining $1,709 in monthly expenses. 
28

Jeffrey cites Everett v. Everett, 421 S.W.3d 918 (Tex. App.—El Paso 2014, 

no pet.) to support his assertion that the trial court improperly converted the debt 

for the house and car notes into spousal maintenance. Everett, however, is 

distinguishable from this case. 

There, the trial court rendered a clarification order of the divorce decree. Id. 

at 921. In the clarification order, the trial court increased the amount of the 

husband’s spousal maintenance payments in direct correlation to a specifically 

identified debt in a specifically identified amount. Id. 

On review of the clarification order, the court of appeals noted, “Under 

section 9.007 of the Texas Family Code, a trial court is prohibited from amending, 

modifying, altering, or changing the division of property as finalized in the divorce 

decree.” Id. The court indicated that a division of debt is part of the division of 

property. See id. The Everett court held that the trial court had abused its 

discretion by rendering a clarification order that increased the amount of 

maintenance to cover a corresponding debt. See id. The court explained,

“[C]onverting a debt into spousal maintenance is not merely a clarification, it is a 

change in the substantive division of property and cannot be enforced under the 

statute.” Id. (citing TEX. FAM. CODE ANN. § 9.007(b)). Unlike in Everett, the trial 

court here did not indicate that a certain portion of the maintenance corresponded 

to any specific debt, including the debts owed on the car and house notes. Rather, 
29

the record shows that the trial court determined maintenance by considering the 

governing statutory provisions.

We hold that Jeffrey has not shown that the trial court improperly converted 

the debt owed by Brenda on the house and car notes into spousal maintenance. 

Thus, we hold that Jeffrey has not shown that the trial court abused its discretion in 

this regard. 

We overrule Jeffrey’s seventh and eighth issues. 

E. Lack of Sufficient Property 

As we construe his ninth issue, Jeffrey asserts that the trial court abused its 

discretion by awarding Brenda maintenance because she failed to show that she 

would “lack sufficient property, including [her] separate property, on dissolution of 

the marriage to provide for [her] minimum reasonable needs,” as required by 

Family Code section 8.051. See TEX. FAM. CODE ANN. § 8.051. 

“When considering whether the spouse seeking spousal maintenance will 

have sufficient property after the divorce to provide for her minimum reasonable 

needs, the trial court may consider the liquidity of the assets awarded to her and 

their ability to produce income.” Everitt v. Everitt, No. 01–11–00031–CV, 2012

WL 3776343, at *8 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem. 

op.). Jeffrey claims that Brenda was not eligible for maintenance because she has

sufficient property, specifically the lake home, valued at approximately $30,000,
30

and the classic 1965 Mustang, valued at $23,000, to meet her reasonable minimum 

needs. These two items were awarded to Brenda in the divorce as her separate 

property. The evidence indicated that Brenda owned the lake home and the 

Mustang before she married Jeffrey. In its findings of fact, the trial court stated 

that it had considered property brought to the marriage by either spouse in its 

determination of the nature, amount, duration, and manner of spousal maintenance. 

See FAM. CODE ANN. § 8.052 (listing property brought to marriage as a factor for 

determining maintenance). 

“In considering assets awarded in the divorce, the law does not require a 

spouse to spend down long-term assets, liquidate all available assets, or incur new 

debt simply to obtain job skills and meet needs in the short term.” See Dunaway v. 

Dunaway, No. 14–06–01042–CV, 2007 WL 3342020, at *3 (Tex. App.—Houston 

[14th Dist.] Nov. 13, 2007, no pet.) (mem. op.). “[C]ourts, in considering if a 

spouse is eligible for spousal maintenance, have upheld the award in situations 

where the spouse receiving the maintenance obtained substantial property in the 

divorce proceeding when those capital assets provided insufficient support.” In re 

McFarland, 176 S.W.3d 650, 658 (Tex. App.—Texarkana 2005, no pet.)

(discussing O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, 

no pet.); Lopez v. Lopez, 55 S.W.3d 194 (Tex. App.—Corpus Christi 2001, no 

pet.); Trueheart, 2003 WL 22176626, at *3; Alaghehband v. Abolbaghaei, No. 03–
31

02–00445–CV, 2003 WL 1986777, at *5, (Tex. App.—Austin May 1, 2003, no 

pet.) (mem. op.)). 

Here, the trial court may have reasonably determined that the property was 

not sufficiently liquid in nature to meet Brenda’s present minimum reasonable 

needs because the lake home and classic car may take time to sell. As a result,

Brenda may not realize any value from these items for some time and be unable to 

meet her current financial needs. See In re Boyd, No. 07–14–00211–CV, 2015 WL 

3941614, at *5 (Tex. App.—Amarillo June 24, 2015, no pet.) (mem. op.) 

(indicating that, because home, “various collections,” long-term insurance policy,

and retirement account awarded to wife were types of property that may require 

time to sell, such property was not necessarily “liquid” in nature and did not 

establish that wife had sufficient property to meet her minimum needs); 

McFarland, 176 S.W.3d at 659 (“[T]he home is not a readily liquid asset and is 

incapable of producing current income.”).

The trial court may have also taken into consideration the deficit Brenda has 

in paying her monthly expenses, even while receiving maintenance. The trial court

found, “[Brenda’s] monthly gross income, including the court ordered spousal 

maintenance, is $2,331.00. [Brenda’s] average monthly living expenses are

$2,809.00.” Thus, the trial court may have determined that any money realized 

from the sale of the lake house and Mustang could help cover this deficit. In 
32

addition, even if she could successfully liquidate the property for the combined 

value of $53,000, the money realized from the sale, combined with her net social 

security disability benefits, would be exhausted in a little over two years. 

We hold that Jeffrey has not shown that the trial court abused its discretion 

when it awarded Brenda maintenance, even though she was awarded the lake home 

and the Mustang as her separate property. We overrule Jeffrey’s ninth issue. 

F. Considering Parties’ Income Sources

Jeffrey’s tenth, eleventh, and fifteenth issues are intertwined. In these 

issues, Jeffrey claims that the trial court abused its discretion by considering the 

bonuses he had received from his employer while not considering potential income 

sources for Brenda. Jeffrey also asserts that the trial court should have considered 

his living expenses as it had considered Brenda’s expenses when calculating the 

maintenance. Jeffrey further claims that the seeming disparity in how the trial 

court viewed the income and the expenses of each party violated the Equal Rights 

Amendment to the Texas Constitution. See TEX. CONST. art. I, § 3a.

We begin by addressing Jeffrey’s argument that the trial court abused its 

discretion because it considered his past bonuses in determining maintenance. 

At trial, Brenda offered Jeffrey’s W-2s for the years 2011, 2012, and 2013. 

These showed that Jeffrey earned $96,323 in 2011, $92,838 in 2012, and $103,258 

in 2013. These amounts included bonuses earned by Jeffrey in each year. 
33

Using all three years, Brenda offered a worksheet demonstrating that the 

average monthly income for these three years was $8,122.75. Brenda requested 20 

percent of this amount, $1,625 per month, as maintenance. In its findings of fact, 

the trial court determined, “The average monthly gross income of [Jeffrey] is 

$8,122.75. Twenty percent (20%) of that amount is $1,624.55.”

On appeal, Jeffrey complains that the trial court should not have included his 

bonuses when calculating his gross income. In support of this assertion, Jeffrey 

points to his testimony regarding the bonuses. Jeffrey testified that his base salary, 

without a bonus, is $65,000. He stated the he receives his bonus in a lump sum at 

the end of the year. Jeffrey testified that his receipt of a bonus and its amount are

dependent on how profitable his employer is in any given year. He indicated that 

there is no guarantee he will continue to receive a bonus or that it will be in the 

amounts that he has received in the past. Based on this testimony, Jeffrey claims

that the trial court abused its discretion “by imputing a non-current and 

undependable salary bonus . . . to [him] before calculating the amount of spousal 

maintenance.” We disagree. 

Family Code section 8.055 provides that a trial court may not order 

maintenance that requires payment monthly of more than the lesser of $5,000 or 20 

percent of the spouse’s average monthly gross income. TEX. FAM. CODE ANN.

§ 8.055(a). Section 8.005 further provides that, for purposes of Chapter 8, 
34

governing maintenance, “gross income” includes “100 percent of all wage and 

salary income and other compensation for personal services (including 

commissions, overtime pay, tips, and bonuses).” See id. § 8.055(a–1)(1)(A)

(emphasis added). Thus, Family Code section 8.055 expressly provides that 

bonuses are included when calculating gross income for purposes of determining 

spousal maintenance. See id. 

In addition, although Jeffrey testified that it is possible that his income could 

decrease, the evidence showed that Jeffrey had received a bonus for the three 

consecutive years preceding trial. Hence, there was some evidence to support an

inference by the trial court that Jeffrey would likely continue to receive a bonus in 

the amounts that he had received in the past. We conclude that it was within the 

trial court’s discretion to consider Jeffrey’s bonus when calculating his gross 

monthly income. See id. 

Jeffrey also complains that the trial court abused its discretion because it did 

not consider possible future sources of income for Brenda to “offset” the amount of 

maintenance he is required to pay. Jeffrey points out that, at the time of trial, 

Brenda was one month away from her 65th birthday. He asserts that the trial court 

should have considered the social security payments Brenda was eligible to receive 

after she turned 65. However, no evidence was presented at trial regarding any 

aspect of social security benefits to which Brenda would be entitled based on her 
35

age. Instead, the record showed only that Brenda was netting $706 in social 

security disability benefits. 

Jeffrey further asserts that Brenda may be entitled to income from her first 

husband’s social security benefits. The testimony indicated that Brenda had 

divorced her first husband, and he is now deceased. Brenda testified that she had 

inquired about whether she was entitled to her first husband’s social security 

benefits. Brenda indicated that she had been told that she may be entitled to them; 

however, because her first husband had remarried, she was not certain whether she 

would be entitled to his benefits. 

Jeffrey further asserts that the trial court should have taken into 

consideration the potential for Brenda to rent out the lake house. However, no 

evidence was presented regarding the amount of rent that could be charged or 

whether the lake house was in a rentable condition. 

In short, the trial court could have inferred that, at the time of trial, Brenda’s 

only source of income was the $706 in monthly social security disability benefit 

that she received. With regard to Jeffrey’s assertion that Brenda had other income 

sources, the evidence was speculative at best. Thus, it was proper for the trial 

court not to impute any other source of income to Brenda. 

Jeffrey also claims that the trial court violated his rights under the Equal 

Rights Amendment to the Texas Constitution, which provides, “Equality under the 
36

law shall not be denied or abridged because of sex, race, color, creed, or national 

origin.” TEX. CONST. art. I, § 3a. Jeffrey asserts that, by considering his bonuses 

but not considering Brenda’s other potential sources of income, the trial court 

violated his rights under this constitutional provision. 

Jeffrey acknowledges that he did not assert his constitutional complaint in 

the trial court. However, he claims that he did not need to assert his constitutional 

complaint in the trial court because it was “self-operative.” We disagree. 

To preserve an argument for appellate review, including constitutional 

arguments, a party must present it to trial court by timely request, motion, or 

objection, state specific grounds therefore, and obtain a ruling. See TEX. R. APP. P. 

33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). For this reason, Jeffrey

waived his constitutional argument by not presenting it in the trial court. 

Jeffrey further complains that the trial court abused its discretion because it 

should have considered his monthly expenses, such as his monthly rental payment, 

when calculating the amount of maintenance he was required to pay Brenda. 

However, as pointed out, Family Code section 8.052 provides the factors for the 

trial court to consider when determining the nature, amount, duration, and manner 

of the maintenance payments. The trial court indicated that it had applied many of 

these factors in determining the maintenance award. Among these factors, the trial 

court indicated that it had considered “each spouse’s ability to provide for that 
37

spouse’s minimum reasonable needs independently, considering that spouse’s 

financial resources on dissolution of the marriage.” 

Lastly, Jeffrey claims that the trial court should have ordered his monthly 

payments to decrease when Brenda pays off the house and car notes. However, 

Jeffrey does not show where in the record he requested the trial court to 

incorporate such a decrease. We further note that, a trial court may modify the 

amount of spousal maintenance a person is required to pay if the circumstances of 

a party have materially and substantially changed since the date of the prior order’s 

rendition. See TEX. FAM. CODE ANN. § 8.057(c) (Vernon Supp. 2014); Rother v. 

Rother, No. 04–13–00899–CV, 2014 WL 4922898, at *2 (Tex. App.—San 

Antonio Oct. 1, 2014, no pet.) (mem. op.). Thus, to the extent that any material 

and substantial change in financial circumstances occurs, Jeffrey may request the 

trial court to modify the maintenance order. 

We overrule Jeffrey’s tenth, eleventh, and fifteenth issues. 

Appellate Attorney’s Fees

In his fourteenth issue, Jeffrey challenges the appellate attorney’s fees 

awarded to Brenda in the temporary order pending appeal.5 Jeffrey asserts that 

Brenda failed to offer sufficient evidence to support the award.6 We agree. 

 

5 We have previously recognized that challenges to a post-decree temporary order 

may be raised in the appeal of the decree. See Massey v. Massey, 813 S.W.2d 605, 

606 (Tex. App.—Houston [1st Dist.] 1991, no writ).
38

We first address a jurisdictional argument raised by Jeffrey. Jeffrey asserts

that the trial court lacked plenary power to award the post-decree attorney’s fees 

because the order awarding the fees was signed more than 30 days after the decree 

was rendered. 

The Family Code provides that, within 30 days of the date an appeal is 

perfected in a suit for dissolution of marriage, the trial court may render a 

temporary order “necessary for the preservation of the property and for the 

protection of the parties during the appeal,” including an order to require the 

payment of reasonable attorney’s fees and expenses. TEX. FAM. CODE ANN.

§ 6.709(a)(2) (Vernon 2006). 

Here, the decree was signed on October 30, 2014. Jeffrey timely filed a 

notice of appeal on November 24, 2014. See TEX. R. APP. P. 26.1. The trial court 

signed its temporary order, awarding the appellate attorney’s fees less than 30 days 

later on December 15, 2014. Because it rendered the order within 30 days of when 

the appeal was perfected, the trial court had jurisdiction to render the temporary 

 

6 Brenda asserts that Jeffrey has waived this issue because it is not adequately 

briefed. In his brief, Jeffrey avers that Brenda did not “make an adequate proveup” of her attorney’s fees. He points out that Brenda did not offer evidence of her 

attorney’s hourly rate or show how many hours the attorney had worked on the 

appeal. We reject Brenda’s claim that Jeffrey waived the issue due to inadequate 

briefing. See TEX. R. APP. P. 38.1(i); cf. City of Arlington v. State Farm Lloyds, 

145 S.W.3d 165, 167–68 (Tex. 2004) (holding appellate court must search entire 

record for legal sufficiency challenge even though appellant did not include 

specific record citations but instead cited to “the entire record”). 
39

order awarding Brenda her appellate attorney’s fees. See TEX. FAM. CODE ANN.

§ 6.709(a)(2).

With respect to the merits of the award, we review the trial court’s decision 

to award attorney’s fees for abuse of discretion. Tomsu, 381 S.W.3d at 719. To 

recover attorney’s fees, the party must prove the reasonableness of the fees. Id. 

(citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). The non-exhaustive 

Arthur Andersen factors provide the guiding principle for determining whether 

attorney’s fees are reasonable. Id. (citing Arthur Andersen & Co. v. Perry Equip. 

Corp., 945 S.W.2d 812, 818 (Tex. 1997)).

The record shows that, after the trial court rendered the decree, Brenda filed 

a motion for temporary orders pending appeal. In the motion, Brenda requested 

the trial court to render an order “[r]equiring payment of reasonable attorney’s fees 

and expenses to [Brenda] in the amount of at least $10,000.00 . . . .” Brenda did 

not offer an affidavit or any other evidence to support her motion.

The trial court conducted a hearing regarding the motion. Although he had 

already retained an appellate attorney, Jeffrey’s trial counsel appeared at the 

hearing on his behalf. Brenda’s appellate counsel also appeared. 

With respect to the attorney’s fees, the trial court began by informing 

Brenda’s counsel: “I’m not going to grant 10,000 [dollars.].” At that point, 

Jeffrey’s trial counsel spoke up, stating that it was his understanding that Jeffrey 
40

had paid his appellate counsel a $2,600 retainer. Trial counsel characterized the 

retained appellate attorney as “a longtime” family appellate attorney.

Brenda’s counsel responded by stating that he had already prepared findings 

of fact and conclusions of law and had yet to read the record and prepare her 

appellate briefing. He pointed out that he may also have to participate in oral 

argument. Brenda’s counsel continued, 

The Court can decide what’s reasonable for that; but to me, if she 

came in to hire me for an appeal, I wouldn’t do that for . . . $2,600. I 

would not. So, whatever his lawyer charged has nothing to do with 

me or what the Court considers reasonable in this case.

The trial court and Brenda’s trial counsel then commented that neither of 

them knew Brenda’s appellate counsel. The trial court stated, “So, that’s not to say 

anything good. That’s not to say anything bad. I just don’t know him. And—

well, what I’m going to do is order, at this time, attorney fees of $5,000 to 

[Brenda’s counsel].” No further discussion was held regarding the specific amount 

of the attorney’s fees to be awarded, and the record contains no documentary or 

other evidence to support the fees. Jeffrey points out in his brief that no evidence 

was offered to show the hourly rate of Brenda’s counsel or how many hours he 

anticipated spending on the appeal. 

In the temporary order, the trial court stated: “The Court finds that 

reasonable interim attorney’s fees and expenses to be paid by [Jeffrey] to 

[Brenda’s] attorney are necessary for [Brenda’s attorney] to properly prepare for 
41

appeal.” Despite this finding, we agree with Jeffrey that Brenda presented no 

evidence to support the reasonableness of the $5,000 attorney’s fee award, as 

required. See id.

Nonetheless, as Brenda points out, the trial court was familiar with the 

issues, the complexity of case, and the size of the record. And, as stated, Brenda’s 

counsel verbally detailed the tasks he had to undertake in representing her on 

appeal. Although there is no evidence to show the reasonableness of a $5,000 

attorney’s fee, there is support in the record to warrant an award of attorney’s fees

to Brenda. See id. 

We hold that, without supporting evidence showing the reasonableness of 

the fees, the trial court abused its discretion by awarding appellate attorney’s fees 

of $5,000. See id. We sustain Jeffrey’s fourteenth issue to the extent it challenges 

the sufficiency of the evidence to support the attorney’s fees award. We need not 

reach Jeffrey’s twelfth and thirteenth issues, which also challenge the award of 

attorney’s fees. 

Conclusion

We affirm the trial court’s divorce decree. We reverse the portion of the 

trial court’s temporary order awarding $5,000 in attorney’s fees, and we remand 
42

the case to the trial court for a determination of Brenda’s appellate attorney’s fees.

7

 

We further dismiss as moot Jeffrey’s motion to abate, vacate, or reform the trial 

court’s temporary order, which is pending in this Court and was ordered to be 

considered with the merits of the appeal. 

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Brown.

 

7

In the temporary order, the trial court also ordered Jeffrey to pay spousal 

maintenance during the pendency of the appeal. Jeffrey has not challenged that 

portion of the order; thus, it is affirmed. See Reeder v. Wood Cty. Energy, LLC, 

395 S.W.3d 789, 798 (Tex. 2012) (op. reh’g) (affirming portions of judgment not 

challenged by appellant, even though reversing other parts of judgment).