## In the Court of Appeals Sec ond Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00172

- CV

___________________________

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. 189,894

- B(A)

Before Birdwell, Bassel, and Wallach, JJ. O pinion by Justice Wal lach 

### C HRISTOPHER 

### T IMOTHY 

### S HERMAN 

### , Appellant

V


### . M OLLIE 

### M ARIE 

### S HERMAN 

### , Appellee2 OPINION Christopher and Mollie Sherman wer e married for almost thirteen years when
M ollie filed her petition for di vorce. In her petition, Mol lie requested post

- divorce spousal maintenance for a reasonable period

. In the final d ecree , the trial court ordered Ch r ist opher t o pay spousal maintenance in the amount of $ 2,500 per month
for two years. Christ ophe r appeals the tr ial court ’s awar d of spousal mai ntenance in five i ssues . Because we sust a in Christ o p her ’s third issu e
— that Moll ie was awarded sufficient property to provide for her minimum reasonable needs and thus is not entitled to spousal main tenance

— we need not address h is remaining issues
challen ging the aw ard of spousal maintenance

. B as e d on ou r resolution of the th ird
issue , we modify the trial court’s final divorce decree to delete all awards of spousal
maintenance and a ff irm the trial court ’s judgment a s modifi ed

. I
. STA NDARD OF REVIEW
W e review the trial court’s decision to award s p ousal maintenance under an abuse of di scretion standard of review. See Diaz v. Diaz , 350 S.W.3d 251, 254 (Tex. App.

– San Antonio 2011, pet. denied). Absent a clear abuse of discretion , we do not disturb the trial court’s decision to award spousal maintenan c e. Amos v. Amos , 79 S.W.3d 747, 7 49 (T ex. App.

— Corpus Christi

– Edinburg 2002, no pet.)

. Under this standard of review, the appropriate i nquiry is whether the trial court’s assessment of spousal maintenance was arbitrary or unreasonable. Garcia v. Garcia , 1 7 0 S.W.3d 644, 649 (Tex. App

. — El P aso 2 005 , n o pet. ) (citing Smithson v. Cessna Aircraft Co ., 6653 S.W.2d 439, 443 (Tex. 1984)). Therefore, we must “determine whether, based on the elicited evidence, the trial court made a reasonable decision. Stated invers e ly, we must conclude that t he trial co urt’s decision was neither arbitrary nor unreasonable.” See
Gar cia , 170 S.W.3d at 659

. There is no abuse of discretion if there is some substantive and probative evidence that supports the trial court’s decision or if reasonable minds
could di f fer as to th e result. In re Marriage of McFarland , 176 S.W.3d 650, 656 (Tex. App.

— Texarkana 2005, no pet.).
B ecause Ch ristopher did not have the burden of proof on the issue of spousal
maintenance , his no

- evidence complaint challenges the legal sufficiency of the evid ence sup portin g the trial court’s exercise of its discretion. See In re Marriage of McCoy , 567 S.W.3d 426, 429 (Tex. App.

— Texarkana 2018, no pet.). The evidence is legally insufficient if there is no more than a mere scintilla of evidence offered t o prove a vi tal fact. Jelin ek v. Casas , 328 S.W.3d 526, 532 (Tex. 2010). More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and
fair

- minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Hav n er , 953 S.W. 2d 7 06, 71 1 (Te x. 1997). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a
fact.” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindre d v. Con/ Chem , In c. , 65 0 S.W .2d 61, 63 (Tex. 1983)).4 I I. AWARD OF SPOUSAL MAINTENANCE

“ An award of spousal maintenance i s intended to provide temporary a nd rehabilitative support for a spouse whose ability to support herself has eroded over time while eng a ged in hom emaki ng ac tivit ies and whose capi t al assets are insufficient to provide support.” In re Marriage of Hallman , N o. 06

- 09

- 00089

- CV, 2010 WL 619290 , at *5 (Tex. App.

— Texarkana 2010, pet. denied) (mem. op.) (citing Deltuva v. Deltuva , 113 S.W.3d 882, 888 (T ex. App.

— Dalla s 200 3, no pet.) )

. Unde r S ection 8.051 of the Texas Family Code , the trial court may in its discret ion order spousal maintenance if the party seeking maintenance meets specific eligibility requirements. Tex. Fam. Code
Ann. § 8.051; see Picken s v. Pick ens , 62 S. W.3d 212, 214

– 15 ( Tex. App.

— Dallas 2001, pet. denied). When , as here , a div orce is sought in a marriage lasting ten years or more, a spouse is eligible to seek spousal maintenance if the spouse lacks suf ficient property to meet mi n imum r easo nable n eed s and lacks the ability t o earn sufficient income to provide for minimum reasona ble needs. T ex. F am. C ode Ann. § 8.051(2)(B)

. T he tria l court awarded Moll i e the following ass ets: 1

. The su m of $87,011.18 to b e paid from th e court ’ s r egistr y . 1

1 It appears that this sum was part of the $268,801.75 that was ga ined from t he sale of Ch rist opher and Mollie ’ s home and that was plac ed in the court ’ s registr y. In th e divorce decree, the t r ial court lists this sum as “ payab le to Mo llie Sher man ” under t he tit le “ Division of Marital Estate. ” It is uncl ear to us why neither part y included this sum in t h eir r espective calculation of Mollie’s awarded assets.5 2

. All hou sehol d furniture, furnishings, fixtures, go ods, art objects, collectibles, appliances, and equipment in her possession or subject to her sole control, includ ing all o f the property in storage. 2
3

. All clothing, jewelry, and oth er personal eff ects in her possession or subject

t o her s ole control

. 3
4

. T he su m of $500,000 t o be paid from the sale /liquidation of cry ptocurrency holdings

. 5

. S ilver located at American National Bank valu ed at $28,800.
6

. T h e “ g ol d rubbing ” and “ blue stone from the Wo rld Trad e Cente r ” in possession of M ollie Sherman

. 7

. Retiremen t US B acc ount ending in 82

- 55. 4

2 Th e trial court did not value this p r operty in the d ivo rce decree. And neither Christoph er no r Mollie attempt to place a value o n thi s property.

3 Moll ie ’ s jewel ry appr aised for $ 119,249.99

. Mollie does not dispu te the jew el r y ’ s appr a ised value

. Rather, she a rgues that the jewelry is not a “ liqui d ” asset. We d isagree. See Are valo v. M i llan , 9 83 S.W.2d 803, 804 (Tex. App.

— Houston [1st Dis t.] 1998, no pet.) ( hold ing that je welry is a liquid ass et) ; Liquid a sset , B lack ’ s L aw D ictionary (10 th ed. 2014 ) (defining “ liquid asset ” as an ass et that is readi ly con v ertible into cas h).

4 C hristoph e r as sert s that this account is v alued at $2 , 158.59 “ b ased on the evidence pr esented. ” Yet, Christoph e r fail s to provide a record citation for where this evidence can be found. We , as an appellate court , have no duty to search the re cord to find th e compla i ne d

- of e vi dence. See Rubsamen v. Wackman , 322 S.W.3d 74 5, 746 (Tex

. A pp.

— El Paso 201 0, no pet.) (not i ng that appellate courts are not “required to sift through the record in search of facts supporting a party ’ s position”). Having failed to provide any cit a tion to th e re cord to support hi s assertion, we cannot credit Chri sto pher ’ s claim that the account ’ s value is $2,158.59. See Tex. R. App. P. 38.1( i )6 8 . Re tirement ac count Forge T rust , formerly known as IRA services, a ccount # 1724 valued at $9 4, 760.45.
9 . UMB Health Savings account valued at $46.86.
1 0

. Com pass account containing $1,003.1 2 in cash.
1 1 . 2009 Le xus RX350 motor vehicle

. 5
I n t o tal , Moll i e was awarded $ 830,871.60 in assets
. During trial, Mollie initially
testif ied that her m onthly expenses tota led $7, 0 91. Howeve r, she later realized t hat
sh e h ad overestimated her m onthly ther apy costs of $ 600 per month

. A f t er s he reduced tha t numbe r to $300 per month , her monthly estimated expenses t otal ed $6, 791.
T he trial court awarded Mollie sufficient property t o p r ovide for her minimum reasonable nee ds eve n a fter subtracting (1) the value of the retireme n t acc ount that
she was awarde d and (2) the liabilities that the tr ial court had ordere d her to pay

. O f the $ 830,871.60 awarded to Mollie , $94,760.45 of that amoun t was in a SEP IRA fund

. Any withdrawal fro m the SEP IRA would be subject to taxes and penalties.

(requiring briefs to contain citations to the record); Nawas v. R & S Vending , 920 S.W.2d 73 4, 737 (Tex. A p p.

— Houst o n [1st Dist.] 1996 , no writ ) (an appellate br ief must inc lud e a fair, condensed statement o f facts pertinent to the points of error raised with references to pages in record where facts may be found, and appellate court is not requir ed to search r ecord wi t hout guidance to determ ine whether assertions regarding f act s of case are valid)

.
5 The tri a l court did not value this piece of property in the divorce decree. And neither Christopher nor Mollie attempt to value th e vehicle.7 See I .R.C. §§ 72(t), 408(d); Indiv. Ret. Plans Guide ¶ 2180 (2018). The record does not
reflect ho w much of these funds, if any, were accessible to Mollie imm e diately o r without consequence. See Gor don v. Gordon , No. 14

- 10

- 01031

- CV , 2011 WL 5926723, at *4 (Tex. App.

— Houston [14th Dist.] Nov. 29, 2011, no pet.) ( m em. op.) (noting that the record did not reflect that the retirement assets the wife had received “w e re accessible to [her] immed iately or w ith out substantial consequence”). Further, “[i]n 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 t o obtain job skills and meet needs in th e s hort term.” 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.). With no ev idence to show that Mollie could access the retirement
funds immediately and without cons equence, we do not consider t his account whe n determining whether Mollie had sufficient prope rty to meet her minimum reasonable
needs. After subtracting the retirement acc ount from the awarded assets, the amount of Mollie ’s pro p erty is $ 736,111.15

. A dditionally, the tr ial court found that the t otal of Mollie ’s liabilities was $322,029.17. A fter Mollie pays off her liabilities, she will have $ 414,081.98 in property8 on d issolution of the marriag e to provide for her “ minimum reaso n able needs

. ” Thi s is the equivalent of approximately five years of Mollie ’s month ly expe nses. 6
I n the judgment, the trial court ordered Christopher to pay spousal
mainten ance in the amount of $2,500 per month for tw o years. The ev i dence does not support a finding that any am o unt is necessary t o provide for Mollie ’s “minimum

reasona ble needs ” that is greate r tha n $6 ,791 per month

. 7
A ccordingly, w e con clude t hat the evidence is l egally in sufficient t o support a finding that Mollie wo u ld lack sufficient property on dissolution o f the marriage to
p rovide for her “ minimu m reasonabl e ne eds. ” See Watson v. Watson , 286 S.W.3d 519, 525 (Tex. A pp.

— Fort Wo rth 2009, no pet .). Thus, the trial court abused its discretion by awarding Mollie sp ousa l maintenance

. See id. We sustain Christ oph er ’ s t hird issue.

6 We a lso not e that M o llie tes tified that she plans to return to college to o btain a mas ter ’ s degre e in counse l ing

. She testified that s he would be able to b egin ear ning money as a counse lor in f our years .
7 Mollie argues that she is also eligible for spousal maintenan ce on th e ground that she is unable to ea rn sufficient i nco me to provide for her m inimum reasonable needs because of incapacitating physical or mental disability. See Tex. Fam. Code Ann. § 8.051(2)(A). However, the trial court did not find that Mollie qual ified fo r spousal maintenance based on th is ground, and the r ecor d d oes not co ntain evidence that Mollie is unable to earn sufficient income to provide for her minimum reasonable needs because of an incapacitating physical or mental disability

. Moreover, e ven if M o llie did qualify for spousal ma i nten ance under this ground, she would still not be entitled to it because the trial court awarded her sufficient property to provide for her minimum reasonable needs. See Tex. Fam. Code Ann. § 8.051

.9 I II. CONCLUSION
H aving sustained Ch rist opher ’s thir d issue , we modi fy the trial court ’s final divorce d ecree to del ete all awards o f spousal maintenance and a ffirm the judgment as
mod ified. S e e Tex. R. App. P. 43.2(b).

/s/ Mike Wallach M ike Wallach J u s t ice
D elivered: July 14 , 2022