Affirmed in Part, R eversed and Remanded in Part, and Opinion filed

December 21 , 2023
.

In The



## Fourteenth Court of Appeals

NO. 14
- 22
- 00372
- CV

DEBRA BOOTHE , Appellant

V. ZEDDIE BOOTHE , Appellee
On Appeal from the 505th District Court Fort Bend County , Texas Trial Court Cause No. 19
- DCV
- 261361

O P I N I O N
Debra B oothe appeals from the final decree of divorce terminating her marriage to Zeddie Boothe. The trial court found that Debra committed fraud on the community and wasting of community assets a nd that she owed reimbursement to the community. Taking those factors into account , as well as Zeddie ’ s attorney ’ s fees, the trial court awa rded the entirety of the known community estate to Zeddie. The tri a l court also den i ed De b ra ’ s request for spousal m aintenan ce. In two issues2

on appeal, Debra contends that the evidence was insufficient to support the trial court ’ s awarding of the ent ire community estate to Zeddie and that the court abused its discretion in denying her r e quest for spousal maintenance

. C oncluding that the trial court erred in its division of the community estate, we reverse and remand that portion of the decree for a new division of property an d affirm the

rema i nder of the judgment, including the denial o f sp ousal maintenance

. Backgrou nd 1
A lthough there was some disagreement between the parties regarding an earlier ceremony, the trial court found that Zeddie and Debra were married in March 1989, and such finding is not cha llenged on appeal. T h e t r i a l c o u r t a l s o f o u n d t h a t t h e c o u p l e s t o p p e d l i v i n g t o g e t h e r a s s p o u s e s a r o u n d J u n e 1 9 9 5

. The couple had three children together. The youngest child, Jasmine, emancipated on June 26, 2010 . However, the record contains a Default Order in Suit for Modification of Ch i ld S upport Obligation , dated Novem ber 10, 2015, which ordered Zeddie to p ay $840 a month in child support for Jasmine indefinitely due to a purported disability. In the proc eedings c urrently before us, t he trial court found that there was no credible evid e nce to substantiate th at Jasmine w as or eve r had been disabled and that credible evidence disproved any such disability.
A t tr ial, Debra testified that other than the clothes on her back and in her closet , she did not own anything. She did n ot present an y other evidence regarding communit y or separate property and did not testify as to any debts

. 2 Zeddie

1 We have reviewed the record, but we also accept as true the facts stated in appellant’s brief to the extent s upported by record c i tation because appellee failed to file a brief. See Tex. R. App. P. 38.1(g ) ; Jackson v. Cain

- Stegem oller , No. 14

- 18

- 00207

- C V, 2019 WL 3724988, at *1 n.1 (Tex. App.

— Houston [14th Dist.] Aug. 8, 2019, no pet.) . The State, which was also a party due to an al l eged child support arrearage, has expressly waived it s right to file a bri ef

.

2 Debra ’ s attorney re presen ted that he had documentation of some nat ure at the trial, but he was unable to get it admitted into evidence. No issue s regarding the excluded eviden c e are3

testified and presented a proposed property division showing that he possessed community property valued at $446,232. 32 and owed commu nity debts of $12,1 0 0 , for a positive total o f $434,13 2.32

. Zeddie ’ s proposed property division showed Debra as possessing no community property and owing n o community debts. The community property listed for Zeddie included vehicles, bank accounts, and retirement accounts.
T he trial court concluded that Zedd ie “ should be awarded a disproportionate share of the parties’ estate due to the following reasons: actual or constructive fraud committed by Debra Boothe, wasting of community a ssets, reimbursement, and attorneys’ fees t o be paid. ” The only specific findi ng the trial court made regarding any of these allegations was that Debra “ continued to collect $840.00 per month in child support from Petitioner until September 2021 based on false claims that Jasmine Boothe was disable d

. ” Among other things i n its final decree , the trial court dissolved the parties ’ marriage, terminated Zeddie ’ s child support obligation , a warded each side the community property that was in their p ossession o r under their control (e ffectively awarding Ze d die the entirety of the proven com munity estate except for Debra ’ s clothes) as well as the liabilities they had inc urred , and ordered each side to pay the i r own attorney ’ s fees. The trial court also denied Debra ’ s request for spousal maintenance. Among ot h er things, Zeddie testified at tri al that the couple separated in 1995 because Debra was squandering money and had stolen a couple of his checkbooks and was writing chec ks without his knowledge. He said that she was using the money to throw parties for th e neighborhood. He further allege d that he and Debra had operated a daycare for a time, but Debra used the business to steal cl ients ’ social security numbers for her own benefit

. Zeddie asked that the
raised in this appeal.4

community estate be reimbursed for what he called Debra ’ s fraudulent c onduct. He did not, however, suggest any specific amount by which the community estate had allegedl y been dimi nished by such conduct. Alternatively, he asked to be awarded

a disproportionate share of the community estate. Zeddie ass e rted tha t the couple had lived apart since the agreed separation , but he had not filed for divo rce in the intervening 27 years because he wanted his children to know that he was not abandoning them.
Zeddie stated that Jasmine was 29 years old at the time of trial, and although he initially stopped paying child support when she turned 18, h e was told to start paying again when she allegedly went to college. He subsequently received an order stating that he did not have to keep paying child support, and , in fact, he

r eceived a reimbursement . However, new child suppo rt proceedings resulted in a default order against him in late 2015 when Debra alleged that J asmine was disabled and mentally unstable. Zeddie said, however, that Jasmine is not disabled and D ebra defrauded the court and him. He explained th at Jasm ine has worked since she turned 18 , got he r GED in 2010, is married, and can and d oes support herself. He said that he ha d paid $840 a month since 2015 in child support for Jasmine . He alleged the money was not, in fact, used for Jasmine. He said th at he and Jasmine had tried to rectify the situation , but the attorney they contacted wanted too much money. Although the default child support order states that Zeddie was duly notifi ed, he contend ed at trial that he was not served with notice for those p roceedings and that notice was sent to the wrong address. He only found out about the order later from the hum an resources department o f his employer. He asked that the funds be recons tituted back into the community estat e and counted against Debra in the division of the estate. The trial court made no finding and Zeddie offered no testimony regarding5

the total amount of child support that he erroneousl y paid based on the disability cla im. However, the default order provid ed that he was to pay $840 a month in child support starting September 18, 2014, and the court below found that the payments ended in September 2021. Assuming Zeddie made 85 months of payments, th is equates to $71,400. But there was also evide nce that Zedd ie was in arrears on the payments b y $5,208.21, apparently because the default order had been retroactive and he never made the retroacti ve payments

. The amount Zeddie actually paid was therefore less than $71,400. 3 Although Zeddie also testified at one po int that he had made a total of $11 5,000 in child supp ort payments for Jasmine since her emancipation, as stated, he acknowledged that he had already received a reim bursement for the amoun ts he allegedly paid because she was in college. When specifically a sked about his fraud claims against Debra, Zeddie identified her taking money without his knowledge (presumably the allegedly stolen checks) and the alleged receipt of child support under false pre tenses. He told the court that he was asking for the divisi on shown in exhibit P

- 2, which show ed everything being awarded to Zeddie. He asserted that Debra has made zero contribution to the community estate, but he suggested without specifics that her father may have le ft her some property. Regarding Debra ’ s spous al maintenance claim, Zeddie testif

ied that Debra had not been a spouse to him in 27 years. He did not believe she was entitled to spousal maintenance because they had each been supporting themselves. He asserted that h is attorney ’ s fees in the case total e d $48,000. Zeddie said he thought D ebra was in pretty good shape and her vision was

3 We say less than $71,400 rather than simply deducting the amount of the arrears that Zeddie never paid beca use the amount given for the arrears likely included interest that should not be subtracted from the amount of the payments he actually made.6

fine, but she just chose not to work. H e explained that she worked when the y operated a daycare from 1989 to 1991, and she worked at another daycare during the same period

. He s tated that the couple w as fili ng separate tax returns but she

onc e filed his tax return and then kept the refund . He reported the matter , but h e says he was told she could do i t because she was his wife . He did not state how much money was involve d. H e said that although he wants Debra to receive none of his retirement funds, she mig ht be entitled to 2 0 percent of the funds that he earned between 1989 and 1995 , the period when they were actually living together. The trial court found that Debra ’ s “ test imony throughout the trial was inco nsistent and void of credibility. ” In her testimony, Debra asserted that she was legally blind and had been blin d since birth. She receives monthly social security d isability checks of $74 2

. She s tated that she married Ze ddie in 1986 and they became separa ted in 2013. According to Debra, Jasmine still requires care and supervision and Debra provides it ; she also provides Jasmine a place to live and helps with her chil dren

. She explained that Jasmine has sickle cell anemia and learning disabilities and is un able to provide for herself

. De bra admitted that she had no proof that J asmine ha d limited mental capacity. Debra was previo usly arrested for writing a bad check. Sh e said that she has not applied for jobs because she can not work due to her poor vision and numerous health issues that include high blood pressure, a blockage near her heart, a tumor in her head, depression , and anxiety. She also said that she has a learn ing disability and lacks any education or training that could help her get a job

. She insis ted she could not provide for herself without spousal maintenance. She lives with Jasmine and another daught er and helps with the other daughter ’ s mortgage. She deni ed living off the child support payments and s aid her mo ther and uncle were pay ing for her attorney.7

Debra explained that during the marriage, Zeddie was “ in and out ” and was not helping pay bills, so sometimes their power would get cut off. According to Debra, Zeddie ne ve r voluntarily helped with their three children, and she had to depend on her parents for help. She said that when he would leave, they would have to move because they could not pay the re nt. Zeddie did not appear for child support hearing s in 1998, 2003, 2008, o r 2015, even though she told him the dates. She said he spent money on the son s he fathered with other women. She denied improperly taking money from Zeddie , stealing his checks, or filing his tax return. She asserted that Zeddie to ld her she should stay home and take care of the childre n. She also said that she contribut ed to the marital estate by c ook ing , clean ing , washing clothes, and taking care of the children. Debra insisted she did not own any property or fu rniture or really a nything of value except clothing , and she denied receivi ng any inheritance from her father. Zeddie ’ s niece, Taurus Lee, testified that Jasmine was i ndependent and supporting herself financially , and Lee had not known Jasmine to l ive with Debra since J asmin e got married. She said that Jasmine has n either display ed any signs of mental instabi lity nor received any money from Debra as s upport

. Lee described Debra as untrustworthy and said that Debra probably could not stay with a relative because she could not be trusted. Lee had not known Debra to work except for t he brief period where she ran a day c are. In closing argument , Zeddie ’ s attorney alleged that Debra had committed actual and constructive fraud by seeking child support for a nondisabled adult child, and the attorney asked the court to reconstitute the est ate by adding th e amount of those p ayments back into the estate and awarding Zeddie a dispr oportionate share. She also requested the court award Zeddie attorney ’ s fees. She co ncluded by askin g that the court order the proposed division in exhibit P

- 2 ,8

whic h showed the entirety of the commun ity estate goin g to Zeddie. In his closing argument, Debra ’ s attorney ass erted she had not committed fraud but merely provided documents to the attorney gen eral ’ s office, which sought the continuing child support . He also alleged Zeddie had wasted communit y funds th rough his numerous affairs and fathering children outside the marriage. And he cited Debra ’ s alleged disability and other health issues. As stated above, the trial court awarded Zeddie the entirety of the kn own community estate , citing “ actual or constructive fraud

. . . , wasting

. . . , reimbursement, and attorneys’ fees

. ” Property Division In her first issue, Debra c hallenges the trial court ’ s aw ard of the entire community estate to Zeddie. We will begin our a nalysis by setting out the law gove rning division of the community estate in a d i vorce decree before turning to the trial court ’ s findings, Debra ’ s arguments , and the evidence . We conclude that the trial court erred in its division of the community estate. Governing law. In a divorce decree , the trial court shall order a division of the parties’ community estate “in a man ner that the court deems just and right, having due regard for the rights of each party and any ch ildren of the marriage.” T ex . F am . C ode § 7.001 ; Barnett v. Barnett , 67 S.W .3d 107, 111 (Tex. 2001)

. Trial courts have wide discretion in determining a just and right division. Schlueter v. Schlueter , 975 S.W.2d 584, 589 (Tex. 1998). When circumstances justify, t h i s standard may result in a disp roportionate division of assets and liabilities

. Id

. at 589

– 90. Indeed , the property division need not be equal ; however, it must be equitable , a nd there must be some reasonable basis for an unequal division of the property. E.g. , Murff v. M u r ff , 615 S.W.2d 696, 698

– 99 (Tex. 1981) ; Gordon v

. Gordon , No. 14

- 10

- 01031

- CV, 2011 WL 5926723, at *7 (Tex. App.

— Houston [14th Dist.] Nov. 29, 2011 , no pet. ) (mem. op.)

. Among the factor s a trial court9

may consider in making an unequal division are the spo u ses’ earning capacities, disparity of income and abi lities, education, business opportunities, relative physical condition, relat ive financial condition, disparity of ages, size of separate estates, nature of the property, and the benefits that the spo use who did not cause the br eakup of the marriage wo uld have enjoyed had the marriage continued

. Murff , 615 S.W.2d at 698

– 99 ; In re Marriage of Rangel & Tovias

- Rangel , 580 S.W.3d 675, 682 n.4 (Tex. App.

— Ho uston [14th Dist.] 2019 , no pet. )

. Although fault in t h e break up of the marriag e may be considered, the di v ision of property should not serve to punish the party at fault. Bradshaw v. Bradshaw , 5 55 S.W.3d 539, 543

– 45 (Tex. 2018)

. Claims for waste, fraudule nt transfer of community pro perty, or other damage to community property belong to the community itself and also may b e considered in the trial court ’ s division

. See Chu v. Hong , 249 S.W.3d 441, 444

– 45 (Tex. 20 08) ; see also Schlueter , 975 S.W.2d at 589 ; K.T. v. M.T. , No. 02

- 14

- 00044

- CV, 2015 WL 4910097, at *12 (Tex. App.

— Fort Worth A ug. 13, 2015 , no pet. ) ( mem. op.) ( “ In addition, a court may consider one spouse ’ s wrongful dissipation of community assets. ” ) ; Smith v. Smith , 143 S.W .3d 206, 213 (Tex. App.

— Waco 2004 , no pet. ) (listing 14 factors Texas courts have considered in ordering a disproportionate divis ion )

. Reimbursement is an equitable right that arises when the funds or assets of one estate are used to benefit and enhance a n other estate without the first estate receiving some benefit

. Marriage of O ’ Brien , 436 S.W.3d 78, 82 (Tex . App.

— Houston [14th Dis t.] 2014 , no pet. )

. Waste , or constructive fraud, is one form of fraud on the community that occurs when a spouse wrongfully d e pletes the community estate of assets without the other spouse ’ s knowledge or consent

. See In re Marriage of Walzel , No. 14

- 16

- 00 637

- CV , 2018 WL 614767, at *3

– 4 (Tex.10

Ap p.

— Houston [14th Dist.] Jan. 30, 2018, no pet.) (mem. op.) (ci t ing Schlueter , 975 S.W. 2 d at 589 ) ; see also Cantu v. Cantu , 556 S.W.3d 420 , 427 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) ( “ Fraud is presumed whenev er one spouse disposes of the other spouse ’ s one
- half interest in commu nity property without that other spouse ’ s knowledge or conse n t. ” ). W aste requires disposal of community assets for non

- community purposes

. Giesler v. Giesler , No . 03

- 08

- 00734

- CV, 2010 W L 2330362, at *4 (Tex. App.

— Austin June 10, 2010 , no pet. ) (mem. op.)

. A spouse commits actual fraud against the other spouse ’ s interest in the community estate when the spouse transfers community property or expends community funds for the primary purpose of depriving t he other spouse of the use and enjoyment of the a s sets involved in the transaction. Strong v. Strong , 350 S.W.3d 759, 771 (Tex. App

. — Dallas 2011 , pet. denied )

. A trial court also ha s equitable power to award either sp ouse attorney ’ s fees as part of its just and right division of the marital estate. Maxwell v. Maxwell , No. 14

- 20

- 00298

- CV, 2021 WL 4956881, at *25 (Tex. App.

— Houston [14th Dist.] Oct. 26, 2021 , pet. denied ) (mem. op.)

. Findings and evidence. As mentioned a bove, the trial court ge nerally justified the dispropor tionate division base d on De bra ’s fraud , her wasting of community a ssets, reimbursement, and Zeddie ’ s attorney ’ s fees

. The only specific finding that the trial court made in support of the d isproportionate divis ion was th at D ebra “ continued to collect

. . . child support from Petitioner until September 2021 based on false claims that Jasmine Boothe was disabled. ” Alth ough the trial court did not make an explicit finding as to the tot al amount lost from the community due to thi s conduct , t he record indicates that the amount was less than $71,400

. 4

4 As set forth above, this calculati on is based on 85 months at $840 per m o nth minus the unpaid arrearage
. No content ion is made in this appeal , or was made below , th at the funds used to pay the child support in question w ere not community property. Zeddie indicated in his testimony that the money came fr om his earnings during th e m arr iage, which would have been11

Zeddie also testified that early in the marriage, Debra had stolen some checks and cashed them in order to throw parties for the neighborhood. Zeddie did not, however, offer any clue a s to the total amount of the funds Debra expended in this fashion. And Zeddie testified that at one point , when they were filing separate tax returns, Debra filed a tax return in his name and then kept the tax refund. He said that w hen he report ed this, he was t old she could do it because she w as his wife. Zeddie again did not offer any hint regarding the amount of the tax refund or what Debra may have done with it. Zeddie also testified that his atto rney ’ s fees in the case tota led $48 , 000, and t he trial co urt indicated it was taking that into account in making a disproportionate division as well.
Debra ’ s arguments. Debra argues that the evidence is legally and fact ually insufficient to support the trial court ’ s disproportionate division. She argues more spe ci fically that (1) there was insufficient evidence of the amount of any alleged damage to the community ; (2) there was no evidence her separate estate benefitted from any community funds ; ( 3 ) a trial court cannot recognize a claim for reimbursement for the payment of child support, citing Tex. Fam. Code § 3.409 ; ( 4 ) the attorney genera l ’ s office sought the disability child support; and ( 5 ) Zeddie failed to provide expert testimony regarding the reasonableness and necess ity of his attorney ’ s fees. The eviden ce, however, was sufficient to support a determination that Debra committed fraud by obtaining cont inuing child support on false pretenses. It was established that Debra sought a nd received child support base d on her allegations that Jasmine was disabled , and there was substantial evidence that J as mine, in fact, was not disabled and had never been di sabled. See, e.g. , Strong , 350 S.W.3d at 771 community pro perty. See Tex. Fam. Code § 3.002; Marriage of O ’ Br ien , 436 S.W.3d at 84 ( “ [E] arnings during marriage, even during the pendency of divorce proceedings, are community property

. ”)

.12

(discussing fraud against the communi ty)

. Additionally, there was evidence on which the court could have concluded that Debra committed constructive fraud or wast ing against the community by cashing Zeddie ’ s checks without his consent and using that money to thr ow neighborhood parties and fil ing his tax return and taking the tax refund without his consent , although the re was no evidence of how much this conduct may have cost the c ommunity

. See Cantu , 556 S.W.3d at 427 (discussing constructive fraud and wasting); Walzel , 2018 WL 614767, at *3

– 4 ( same )

. But see Kaftousian v. Rezaeipanah , 511 S.W.3d 618, 623 (Tex. App.

— El Paso 2015 , no pet. ) ( holding disproportionate division of marital estate could not be supported by allegations where trial court did not make findings based on those allegations )

. 5 And, although Zeddie ’ s attorney did not provide live testimony regarding th e reasonableness and necessity of her fees, she did provide an affidavit on that issue and Zedd ie did not object to th e form of the evidence. See, e.g. , Spencer v. Vaughn , No. 03

- 05

- 00077

- CV, 2008 WL 615443, at *13

– 14 (Tex. App.

— Austin Mar. 6, 2008 , pet. d enied ) (mem. op.). Just and right division. The bigger issue that Debra raises is not whether there was evidence she committed fraud, const ructive fraud, or wasting, but whether the trial court ’ s division of the community estate based on th is conduct

— award ing Zeddie the entirety of the exi sting community estate

— was just and right. 6 A tr ial court i s certainly permitted to take such wrongful conduct into consideration when dividing a c ommunity estate

. See , e.g. , Chu , 249 S.W.3d at 4 44

– 45 ; Schlueter , 975 S.W.2 d at 589 ; D ebrock v. Debrock , No. 03

- 21

- 00308

- CV, 2022 WL 17970214, at *17 (Tex. App.

— Austin Dec. 28, 2022 , pet. denied ) (mem.

5 We need not and do not make a ruling as to whether the trial court considered or prop erly considered the evidence concerning the checks and the tax refund in resol v ing the issues in this appeal.

6 There does not appear to be any evidence in the record support ing a reimburse ment claim

. See O ’

Brien , 436 S.W.3d at 82

.13

op.); K.T. , 2015 WL 4910097, at *12

. Although the trial court here did not e xpressly provide its calculations for reconstitu ting the marital estate (i.e., adding the amounts wrongfully taken from the community back into the estate before making a just and right division ) , such calculations are not difficult

. See generally Tex. Fam. Code § 7.009 ( requiring court reconstitute estate i n light of actual or constructi ve fra ud on the community). T he total positive value of the est ate after subtracting li abilities also assigned to Zeddie was $434,132.32 . The proven amount o f losses caused by Debra ’ s wrongful conduct was less than $71,400

. A ssuming the trial court reconstituted the community estate and considered $ 71,400 as De bra ’ s share , the division was approximately 86% to Zeddie and 14% to Debra. Even considering that the trial court was within its discretion in factoring in Zeddie ’ s atto rney ’ s fees in making the division and there was some evide nce of additional unquantified damages related to th e alleged theft of checks and a tax return , this is still a very disproportionate split

. See generally Murff , 615 S.W.2d at 700 ( “Mathematical pr ecision i n dividing property in a divorce is usually not possible.” ). Bu t is it inequitable? There is no exact threshold as to what percentage split between spouses constitute s an unfair or unjust division and thus reversible error. See Bradshaw , 555 S.W.3 d at 547 (Devine, J., concurring)

. That said , a division this disproportionate is somewhat rar e but not unheard of in Texas juris prudence

. See id

. ; id

. at 551 (Lehrmann, J., dissenting). Typically, cases resulting in such a dis pro portionate division involv e either evidence de monstrating conduct impacting a much greater percentage of the communit y estate than was shown here , evidence relating to one or several of the Murff factors , or evidence of abuse

. See , e.g. , Lynch v. Lynch , 54 0 S.W.3d 107, 130 (Tex. Ap p.

— Houston [1st Dist.] 2017 , pet.14

denied ) ( collecting and describing cases with very disproportionate property divisions ) ; see als o Simons v. Simons , No. 11

- 21

- 00066

- CV, 2023 WL 2415209, at *8 (Tex. App.

— Eastland Mar. 9, 2023 , no pet. ) (mem. op.) ( affirmin g award of entire marital estate to wife where husband had treated her cruelly, was at fault in the break

- up of the marriage, and had sexually assaulted his step

- daughter ); Christensen v. Christensen , No. 01

- 16

- 00735

- CV, 2018 WL 1 747260, at *8 (Tex. App.

— H ouston [1st Dist.] Apr. 12, 2018 , no pet. ) (affirming disproportionate division based on waste, fault in the break

- up of the marriage, a nd mult iple Murff factors) ; Ohendalski v. Ohendalski , 203 S.W.3d 910, 915 (Tex. App.

— Beaumont 2006 , no pet. ) ( affirming 81/19 division based on findings of adultery , cruelty, waste, and Murff factors )

. Here, as indicated, Debra ’ s wron gful conduct was shown to impact only a relatively small percentage of the community estate and the re was no evidenc e of

an y Murff factors tha t would support a dispropo rtionate division in Zeddie ’ s favor or that Debra was abusive . To the contrary, Zeddie was shown to be in a significantly better financial position with significantly greater earnings potential than Debra . Under these circumstance s, we c onclude that the trial cour t ’ s division of the community estate was neither supported by a re asonable basis nor equitable and therefore constituted reversible error. See , e. g. , Roberts v. Roberts , 531 S.W.3d 224, 234 (Tex. App.

— San Antonio 2017 , pet . denied ) ( holdin g division was so disproportionate as to be u nfair and unjust ); K.T. , 2015 WL 4910097, at *12 ( holding although evidence supported unequal division of community estate, it did not support such a disproportionate d ivision ) ; Osorno v. Osorno , 76 S.W.3d 509, 512 (Tex. App.

— Houston [14th Dist.] 2002 , n o pet. ) (holding 75/25 split was not supported by the evidence); Blair v. Blair , No. 14

- 97

- 00832

- CV, 1999 WL 649082, at *9 (Tex. App.

— Houston [14th Dist.] Aug. 26, 1999 , no pet. ) (not15

designated f

or publication) ( holding , even assuming right of rei mbursement, property division was “ grossly inequitable ” )

. Accordingly, we must reverse the portion of the decree div i ding the community estate and remand for a new div i sion

. See Graves v. Tomlinson , 329 S .W.3d 128, 153 (Tex. App.

— Houston [14th Dist.] 2010 , pet. denied ) ( “ [ O ] nly the trial court may make a just division of community property

. ” ). Spousal Maintenance
In her s econd issue , Debra asserts that the trial court abused its d iscretion in denying her r equest for spousal maintenance

. Chapter 8 of the Family Code governs the award ing of spousal maintenance in a divorce decree. Tex. Fam. Code §§ 8.001

- .359; see also Dal ton v. Dalton , 5 5 1 S.W.3d 126, 130 (Tex. 2018) (“In 1995, the Texas Legislature first au thorized courts to award a for m of involuntary post

- divorce alimony referred to as ‘spousal maintenance.’ ”). The Code defines “maintenance” as “an award in a su it for dissolution of a m arriage of periodic payments from the future income of one spouse for t he support of the other spouse .” Tex. Fam. Code § 8.001(1).
The Cod e authorizes trial courts to award spousal maintenance in “very limited circumstances” if the parties meet certain e l igibility requirements. Dalton , 551 S.W.3d at 130

. Among the possibilit ies stated in t he statute, a s pouse may be eligible if they lack sufficient property, including separate property, on dissolution of the marriage to provide for t he i r minimum reasonabl e needs , and either (1) has been married to th e other spouse for at leas t 10 years and lacks the abili ty to earn sufficient income to provide for her minimum reasonable needs , or (2) is unable to earn sufficient income to provide for the ir minimum reasonab l e needs because of an incapacitating physical or mental disability . Tex . Fam. Code § 8.051

. If the sp ouse is determined to be eligible for maintenance, the court must then determine16

the nature, amount, duration, and manner of the payments by considering c e rtain listed factors

. Id

. § 8.052

. The party see king spousal maintenanc e bears the burden to establis h the requirements of the statu t e. See, e.g. , Marin v. Marin , No. 03

- 22

- 00013

- CV, 2023 WL 2776296, at *2 (Tex. App.

— Austin Apr. 5, 2023 , no pet. ) (mem. op. ) ; Cooper v. Cooper , 176 S .W.3d 62, 65 (Tex. A pp.

— Houston [1st Dis.] 20 04, no pet.)

. We review a trial court ’ s denial of spousal maintenance for an abuse of discretion

. See, e.g. , W.D. v. R.D. , No. 02

- 18

- 00328

- CV, 2019 WL 2635563, at *8 (Tex. App.

— Fort Wor t h June 27, 2019, no pet.) (mem . op .) ; Fuentes v. Zaragoza , 55 5 S.W.3d 141, 171 (Tex. App.

— Houston [1s t Dist.] 2018, no pet.). We will reverse the trial court ’ s order only if we determine, from reviewing the record as a whole, that the decision was arbitra r y and unreasonable. Coble v. Adams , No. 01

- 13

- 00562

- CV, 2014 WL 660248 0, at *1 (Tex. App.

— Houston [1s t Dist.] Nov. 20, 2014 , no pet. ) (mem. op.) . We view the evidence in the light most favorable to the trial court ’ s decision and indulge every legal presum p tion in favor of its judgment. Id

. It is unco ntested that Zeddie and D ebra were married for well over 10 years. Debra further asserts that she is legally b lind and unable to work due to that disability and that she also suffers from several health issues a nd a learning disability. She maintains that her o n ly source of income is a $742 monthly social

secur ity disability payment and that she owns nothing except her own clothes . The only support in the record that Debra references for these assertions is her o wn testimony, which the trial court found to be thoroughly “ inconsiste nt and void of credibility

. ” I n a trial to the bench, such as this, t he trial court is the sole judge of witness credibility a nd the weight to be assigned to testimony

. See Saba Zi Expl

. , L.P. v. Vaughn , 448 S.W.3d 123, 131 (Tex. A pp.

— Houston [14th Dist.] 2014 , no pet. )

. Debra ’ s attorne y was unable to get any documentary evidence into the record17

to support her claims rega rding her disabilities, health issues, inability to earn a living, a nd lack of property. Although , as discussed a bove, there is some evide nce from Zeddie indicating Debr a did not possess any community property, Debra does not cite any evidence beyond her own testimony in support of her claims. Zeddie testified that he tho u ght Debra could see pretty well , and he was n ot aware of any other hea lth issues she might have. He a lso noted that she had either worked for or operated a daycare for a couple of years. He belie ved that she was

“ in good shape ” but just chose not to work. Additionally, under cross

- examination, Debra acknowledged that she wou ld only need about $303 a month in addi tion to her dis ability payments to meet her minimum reasonable needs. See Tex. Fam. Code § 8.051 ; see also Trueheart v. Trueheart , No. 14

- 02

- 01256

- CV, 2003 WL 22176626, at *2 (Tex. App.

— Housto n [14th Dist.] Sept. 23, 2003 , no pet. ) (mem. op.) (exp l aining that t he Code does not define the term “minimum reasonable needs” and d eciding what a particular person ’ s needs are is a fact

- specific determina t ion that should be made by the trial court on a case
- by

- case basis ). Alt hough the trial court did not s tate an express finding as to why it den i ed the spousal maintenance request, it may have reasonably concluded that D ebra failed to meet her burden to e stablish either that she lacked sufficient proper ty to provide for her min imum reasonable need s or that s he lack ed the ability to earn sufficient income to provide for her minimum reasonable needs

. See Tex. Fam. Code § 8.051 ; see also J.F. v. J.F. , No. 02

- 19

- 00029

- CV, 2020 WL 4248681, at *4 (Tex. App.

— Fo rt Worth July 23, 2020 , p et. denied ) (mem. op.) ( collect ing cases where spouse asserting disability or health issues failed to meet burden for spousal maintena n ce )

. We therefore overrule Debra ’ s second issu e
. Conclusion
We reverse the portion of the final decree of divorce that di vides the marital18

estate and remand that issue to the trial court for further proceedings. We affirm the remainder of the divorce decree.

/s/ Frances Bourliot Justice

Panel cons ists of Justices Bourliot , Hass an, and Poissant.