### 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. 03-14-00440- CV

Nancy Mar ie P eck, Appellant

v. Wayne Cody P eck, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 12- 0349 -F C2, H ONO RAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Nanc y Marie Peck appea ls from a final divorce decr ee that ended her approximately
twenty -five- y ear marria g e to Way ne Cody Peck and divided their marital proper ty

. T h e decr ee 1

awa rded Nanc y five y ear s of spousal maintenanc e, and she complains in the first of two issues that

2
the trial court reve rsibly err ed in f ailing to f ind that she had a phy sical disability that preve nted her
from m eeting her minimum rea sonable needs, a finding that would have enable d her potentially

to obtain maintenanc e for a longer duration. I n her second is sue, Nancy insists that the t rial court

reve rsibly err ed in awa

rding Way

ne 100% of a Morg an Stanley acc ount. We will aff irm the decr ee.

There wer e no minor childre n of the mar riag e at the time of

the proc eeding

. 1
Be cause the parties share a common surname, we will re fe r t o them by their first names 2 for c larity

.STANDARD OF REVIEW
Nanc y ’s appellate issues are revie wed under an overa rching abuse- of-discr etion
standard. A trial court ab u s es i ts discretion if it acts arbitra rily , unrea sonably , without reg ard to 3

g uiding leg al principles, or without supporting evidenc e. Challeng es to evidentiar y support entail 4

a two-prong ed analy sis, inquiring whether (1) the trial court had sufficie nt evidenc e upon which to
exercise its discretion, which incorporates the fami l i ar standards of leg al and fac tual sufficie ncy
revie w; and (2) the trial cour t erre d in its application of that discretion. 5

SPOUSAL MAIN TENANCE
Nanc y ’s first issue implicates specific require ments of Texas’s spousal-maintena nce
reg ime that war

rant an initial introduct ory explanation. The availability and amount of spousal
maintenanc e—“a

n award

. . . of periodic pay ments from the future income of one spouse for the
support of the other spouse” —is g overne d by Chapter 8 of the Family Code. Chapter 8 restric ts a 6
trial court’s discretion to awa rd spousal maintenanc e solely to circ umstance s wh er e (1 ) a spouse
“will lack sufficie nt proper ty , including the spouse’s separ ate proper t y , o n dissoluti on of the

Giesler v. Giesler , No. 03-08-00734-CV, 2010 WL 2330362, at *2 (Tex. Ap p
. — Au s t i n 3 J une 10, 2010, no pet.) (mem. op.) (citing Murff v. Murff , 615 S.W .2d 696, 698 (Tex. 1981) (division of proper ty ); Hipolito v. Hipolito , 200 S.W .3d 805, 806 (Tex. App.—Dallas 2 0 0 6 , pet. denied) (spousal maintena

nce) ). Bocque t v. Herring , 972 S.W .2d 19, 21 (Tex. 1998). 4
Giesler , 2010 WL 2330362, at *2 (citing Steele v. Steele , No. 03-07-00011- CV, 2009 WL 5 2567911, at *3 (Tex. App.—Austi n Aug

. 19, 2009, no pet.) (mem. op.)); Zeifman v. Miche ls , 212 S.W .3d 582, 588 (Tex. App.—Austin 2006, pet. denied). Tex. Fam. Code § 8.001(1)

. 6
2marria g e to pr ovide for the spouse’s minimum rea sonable needs,” and (2) the spouse meets one of

sever al alter

native additional elig ibilit y require ments that include, as r eleva nt here :

(2) the spouse see king ma intenance : (A) is unable to ear

n sufficie nt income to provide for t he spouse’s minimum rea sonable needs beca use of an incapa citating phy sical or mental disability ; [ or] (B ) has been marrie d to the other spouse for 10 y ear s or longe r and lacks the ability to ear

n sufficie nt income to provide for the spouse’s minimum rea sonable ne eds . . . . 7

I f the trial court deter

mines that a spouse is elig ib l e t o receive maintenanc e, it
shall then “dete rmine the nature , amount, duration, and manner of periodic pay ments by considering
all re l ev an t fac tors,” including the ag e, employ ment history , ear

ning ability , and phy sical and
emotional condition of the spouse seeking maintenanc e. The court’s discretion in deter mining 8
duration is limit ed, howeve r, by Section 8.054. Subsection (a) of Section 8.054 imposes two sets 9
of g ener ally applicable limit ations: (1) a maxi mum duration of maintenanc e that is tied to the leng th

Id

. § 8.051. Wit h re s p ec t t o Parag raph (B ), there is a rebuttable presumption that 7 maintenanc e is not war

rante d unless the spouse seeking maintenanc e has “exerc ised d i l ige nce” in either “ea

rning sufficie nt income to provide fo r t he spouse’s minimum rea sonable needs” or “deve loping t h e n ecessary skills to provide for the spouse’s minimum rea sonable needs during a period of separ ation and d u ri n g the time the suit for dissoluti on of the marria g e is pending .” Id

. § 8.053(a)

. Id. § 8.052 (listing ele ven fa ctors). 8
See id. § 8.054. 9
3of the marria g e, which as applicable here would be seven y ear s; and (2) a further require ment that 1 0
the trial court “s h all limit the duration of a maintenanc e order to the shortest rea sonable period

t h at al lows the spouse seeking maintenanc e to ear n sufficie nt income to provide for the spous e’ s
minimum rea sonable ne eds.” 1 1

Neither g ener al limit ation on the dura tion of maintenanc e applies, how ever , if “the ability of the spouse to provide for the spouse’s minimum rea sonable needs is substantially or totally
diminis hed bec ause of

: . . . phy sical or menta l disabilit y of the spouse seeking maintenanc e.” I n 1 2

t h at event, the court has discretion to order maintenanc e “for as long as the spouse conti n u es t o satisfy [t hat] elig ibilit y criter ia,” subject to periodic revie w and modification. This exception to 1 3 1 4
Section 8.054’s re strictions on the duration of maintena nce is the f

ocus of Na

ncy ’s first issue.

I n this ca s e, t he issue of spousal maintenanc e was closely rela ted to the dispositi o n o f t h e comm unity interest in milit ary retire ment benef its Way ne had acc rued and that he anticipa ted commencing to draw within a fe w months after trial. The total re tirement pay ment Way ne anticipa ted eac h month wa s approximately $3,600, and Way ne had a g ree d that Nanc y was

en t i t l ed t o a one-ha lf share of these pay ments, y ielding her a monthly pay ment of approximatel y

See id. § 8.054(a) (1)( B) (“a court: . .

. may not order maintenanc e that re mains in effe ct 1 0 for more than:

. . . seven y ear s afte r the date of the order , if the spouses wer e marrie d to eac h other for a t least 20 y ear s but not more than 30 y ear s”).

Id. § 8.054(a) (2). 1 1
Id. § 8.054(a) (2)( A). 1 2
Id. § 8.054(b); see also id

. § 8.054(a) (making elig ibilit y under Subsection (b) exception 1 3 from g ener ally

applicable limit ation presc ribed in Subsection (a )).
See id . § 8.054(c) , (d). 1 4
4$1,800 per month. Howeve r, Way ne acknow ledg ed that he would likely apply for disability , which

wo u ld cause a reduc tion in the total amount of monthly retire ment benef its that was s u b

j ec t t o
division and, in turn, a sm aller pay ment to Nanc y
. I n l i gh t o f t hat prospect, Way ne had ag ree d to

pay spousal maintenanc e as a sort of gap- filler, proposing to p ay Na n cy monthly maintenanc e for
five y ear s in an amount that, when added to the share of his milit ary retire ment Nanc y would rec eive,
would y ield a combined pay ment to her of around $2,000 per month. Whil e ag ree i n g with this
basic framework, Nanc y had insisted on obtaining maintenanc e in amounts s u ff i cient to eleva te
her total monthly pay

ments to $3,000. She further soug ht to establish that she was phy sic ally or mentally disabled so as to be exempt from S ec tion 8.054’s g ener al limit ations of the pay ments’
duration.
After hear ing evidenc e—which consisted solely of live testimony from both Nanc y
and Way ne and medical rec ords —the trial court made a maintenanc e awa rd along the lines Way

ne 1 5
had advoca ted. I t order ed monthly maintenanc e in the amounts nece ssary to comprise a combined monthly pay

ment to Nanc y of milit ary retire ment plus maintenanc e of $2,500 for the first 24 months following the decr ee, then a total of $2,000 in combined re tirement plus maintenanc e for the

next 36 months there afte r. At the end of that 60-month period (i.e., five y ear s), Way ne’s obliga tion
to pa y monthly maintenanc e was to c ease and only the retire ment-pay component would continue.

I n support of this maintenanc e awa rd, the trial court made find i n gs t h at included elig ibilit y
based on the leng th of the parties’ marria g e and a curr ent inability of Nanc y to provide for her
minimum rea s onable needs. Reg arding duration, the court failed to find that Nanc y ’s inability to

The trial court excluded some of the rec ords Nanc y offe red. Although Nanc y ’s arg uments 1 5
on appea l appea

r to rely in part on excluded rec ords, she has not challeng ed the evidentiar y ruling s.
5meet her minimum reas o n ab l e needs was attributable to a phy sical or mental disability ; in fac t,

it made aff

irmative finding s that Nanc y was not disa bled. I n the absenc e of a finding of disability ,
t h e co u rt’s materia l finding reg arding the duration of maintenanc e was that the five-year peri o d
it had order ed repr esente d “[t] he shortest rea sonable period o f t i m e t h at allows [Nancy ] to

meet her rea sonable minimum needs by obtaining appropr iate employ men t o r developing an
appropr iate skill.”

The g rava

men of Nanc y ’s fi rs t issue is that the trial court’s failure to find her phy sically or mentally disabled from working was contra ry to e vidence that conclusively or by the

g rea t weig ht and preponde ranc e established that fac t. She emphasizes medical rec ords ref lecting 1 6

Nanc y bore the burden of proof on her spousal main t enanc e claim. See, e.g. , Cooper 1 6
v. Cooper , 1 76 S.W .3d 62, 65 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Consequently , to preva il on her cha lleng e to the leg al suffic iency of the e vidence underly

ing the trial court’ s failure to find dis ab i l i t y , Na ncy is require d to demonstrate that the evidenc e established that fac t conclusively as a matter of law. See Dow Chem. Co. v

. Francis , 46 S.W .3d 237, 241 (Tex. 2001). Evidence is conclusive only if rea sonable people could not differ in their conclusions. City of Keller
v. W ilson , 168 S.W .3d 802, 816 (Tex. 2005) (citation omitted). As with other leg al-suff iciency challeng es, we view the evidenc e in the light most favor able to the trial court’s finding (or failure -tofind), cre diting favor able evidenc e if a rea sonable fac t-finder could, and disreg arding contra ry evidenc e unless a rea sonable fac t-finder could not. See id

. at 809–11. To preva il on her challeng e to the fac tual sufficie ncy of the evidenc e reg arding disability , Nanc y must demonstrate on a p p e a l that the trial court’s failure to find disability is ag ainst t h e gre at weig ht and preponde ranc e of the evidenc e. Dow Chem. Co. , 46 S.W .3d at 242. A fac t-finder ’s failure to find a fac t is ag ainst the “g rea t weig ht and preponde ranc e” of the evidenc e when it is “cle arly wrong and unjust.” Id. Under ei t h er standard, we defe r to the rea sonable cre dibilit y deter minations made by the fac t finder (her e, the trial court) and do not mere ly substitut e our judgme nt. See City of Keller , 168 S.W .3d at 816–17, 819–20, 822 (leg al sufficie ncy ); Golden Eagle Archery

, Inc. v. Jack

son , 116 S.W .3d 757, 761 (Tex. 2003) (fa ctual suff iciency ).

Nanc y also asser

ts what amounts to a leg al-suff iciency challeng e to cer

tain on-the-r ecor d comments made by the trial court. After announcing that “I do not find that Mrs. Peck is disabled,” the t rial court, ref

ere ncing its experience fr o m o t h er ca ses, ex presse d conce rn t hat Nancy “is on a very d i s t re s sing combination of medicine” that could be contributing to her claimed employ ment difficulties. Fur

ther, noting that Nanc y had been obtaining presc riptions separ ately from sever al
6that she had been diag nosed with a g enetic condition know n as Ehlers-D anlos sy ndrome (which is
said to impact connec tive tissue and cause pain) and various other maladies (e.g ., arthritis and back issues), and had soug ht trea tment from numerous health-c ar e p ro viders for complained- of pain, depre ssive sy

mptoms, anxiety , and purported memory impairment. Howeve r, Nanc y ultimately did

not succe ed in introducing any evidenc e that any

health-c are provider had l inked her diag noses or complaints to an inabili ty to work. I n lieu of obj ective medical evidence, N an cy was releg ated to rely ing on her own subjective claims that she is “consta ntly in pain,” has “chr onic fatig ue” and “memory issues,” and doe s not “expect” to be a ble to hold down a job bec ause:

I t’s difficult for me to sit longe r than 20 minutes without starting to experience sever e pain.

. . . I can’ t stand or walk for an extended period of time.

. . . But I have a limit ed amount of ener g y that I have to partition out throug h the day , as I explain the fatig ue. The pain g ets worse when I ’m sitti ng in one place , when I ’m ty ping on the computer, my hy permobile fing ers and my hands. And I have d i ff i cu l ty focusing and
reme mbering , keeping my mind on track. . . .

differ ent providers, the court urg ed Nanc y “to confe r with one phy s i ci an about her issues.” On appea l, Nanc y attacks these statements as supported by “ absolut ely no evide nce ” (empha sis in orig inal) and seeks to char acte rize them as the sole or primary basis for t h e trial court’s failure to find disability

. As an initial obs er v ati on, Nanc y overlooks that such on-the-r ecor d comments are not rele vant to our revie w of the sufficie ncy of the evidenc e. See, e.g. , Lee v. Kaufman , No. 03-10- 00148-CV, 2011 Tex

. App. L EXI S 6969, at *10–11 (Tex. App.—Austin Aug

. 26, 2011, no pet.) (mem. op.) (noting that trial court’s oral statements “ca nnot function as a substitut e for finding s of fac ts or conclusions of law”)

. On the other hand, some lang uag e simil ar t o t h e t ri al court’s statements did find its way into its written aff irmative finding s that no disability exis ted, wher e the court refe renc ed Nancy “taking a combination of prescription medication (none of which indica te any inability to work) obtained from numerous phy sicians that needs t o b e b et t er manag ed by her and by one phy sician.” To the extent we should construe Nan cy ’s arg uments to assail this written finding i nstead, any err or i s ultimatel y i m m at er ial or harmless. The material i ssue, aga in, is not whether the evidenc e is sufficie nt to support a finding aff irmatively neg ating disability , as if Way ne had the burden on that issue, but whether the evidenc e is sufficie nt to support the trial court’s failure to find that Nanc y met her burden. As indicated above, the evidenc e abundantly supports that deter mination by

the trial cour

t.
7Whil e Nanc y insists that the trial court had no discretion but to cre dit her claims

o f d eb ilitation, it was manifestly the trial court’s province to assess their cre dibilit y and weig ht. 1 7

I n that reg ard, the trial court could have taken acc ount of, e.g ., an admi s s i o n b y Nanc y that she
had ridden on the back of a motorcy cle on a round trip from a W i l l i ams on County location to
Bur net less than six months befor e trial, and that despite her profe ssed “memory issues,” Nanc y had
testified at trial to deta i l s of financial t ransa ctions from several y ear s ear lier t o support her claims

to the Morg an Stanley acc ount addre ssed in her second issue. To simil ar eff ect, the trial court also pointedly included a finding that Nanc y had been rathe r i n consistent in purporting to rely on a
whee lchair during the course of the proce eding s. Fur ther informing the infere nces to be draw n was
additional evidenc e t hat Nancy had possessed the wherewithal to ear n a master’s degr ee in health
service manag ement and to work as a reg istered nur se, y et had quit working in 2002 or 2003 with Way ne’s consent (and which Way ne claimed had not bee n nece ssitated by any phy sical or mental problem) a

nd had let her nursing license lapse, and had made no eff ort to find employ

ment during

a two-y ear period in which the divorce had been pending —a period in which it was undisputed that Way ne had be en pay

ing N ancy

$2,000 per month in temporar y spousal support. 1 8

On this rec ord, we cannot conclude that the ev i d en ce conclusively or by the g rea t weig ht and prepondera

nce established Nancy ’s professed disability . We overrule her f irst issue. 1 9

See City of

Keller , 168 S.W .3d at 816–17, 819–20, 822 (leg al sufficie ncy ); Golden Eagle 1 7 Archery , Inc. , 116 S.W .3d at 761 (fa ctual suff iciency ).
Fur ther, it was undisputed that this delay had been calc ulated to ensure that Nanc y would 1 8 qualify for lifetime milit ary -provided health car e in advanc e of the divorce and Way ne’s retire ment.
I n addition to responding to Nanc y ’s issues, Way ne urg es that we g o far

ther and vacate the 1 9 entire maintenanc e awa

rd on the basis that Nanc y failed to prese nt evidenc e to prove her elig ibilit y
.

8MORG AN STANLEY ACCOUNT
Nanc y ’s second issue co m p lains of the trial court’s awa rd to Way

ne of 100% of a Morg an Stanley acc ount that was valued at approximately $46,610 at time of trial. The awa rd rested

on two alterna tive g rounds. First, the court found that the entire balanc e of the acc ount consisted of Way ne’s separ ate proper

ty , namely an inheritanc e from his fathe r in the orig inal amount of $66,000. Second, in the event the acc ount was proper ly classified as a community asset instead, the trial court
found that it should reg ardle ss be awa rded 1 0 0 % to Way

ne. Nanc y challeng es only the separ ateproper ty char acte r but does not complain of the trial court’s alterna tive rationale for the awa rd. Nor
would we find any abuse of discretion in awa rd i n g the asset as community proper ty

. Considered
in the context of t h e d ecree as a whole, this awa rd mere ly serve d to offse t a portion of sever al disproportionate awa

rds made in Na n cy ’s favor , including a 60/40% split of proce eds from the
sale of the marital home and Way ne’s assum ption of $41,000 in community debts. We overr ule

Nanc y ’s sec ond issue.

Be cause these claims seek relief more favor able to Way ne than that aff

orded by the decr ee, Way ne was require d to perf

ect his own appea l in order to raise them. See Tex. R. App. P. 25.1(c) (“A party who s eeks to alter the trial court’s judgment .

. . must file a notice of appeal.”). He did not do so, so we lack jurisdiction to consider his complaint and dismiss it. See id. ; Texas Bd. of Chiropractic Exam’ rs v. Texas Med. A s s ’n , 375 S.W .3d 464, 491–92 (Tex. App.—Austin 2012, pet. denied) (holding that appellate court lacked jurisdi ction to consider appellee ’s cr oss-point seeking to alter trial court’ s judgme nt where appellee did not file notice of a ppeal)

. 9CONCLUSION
We affir m the decr ee.

__________________________________________

Bob Pembe rton, J ustice

Be fore J ustices Pury ear , Pemberton, and B ourland
Affir med
Filed: Jul y

15, 2016

10