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Redd v. Redd

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 3, 2017

JAMES E. REDD, Appellant,
SARAH K. REDD, Appellee.

         On appeal from the 75th District Court of Liberty County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa.


          ROGELIO VALDEZ Chief Justice.

         Appellant James E. Redd appeals from a final divorce decree.[1] By six issues, which we renumbered, appellant contends that the trial court erred by awarding appellee Sarah K. Redd $1, 500 in spousal maintenance, awarding temporary spousal support in the amount of $2, 500 per month, ordering appellant to pay $20, 000 in delinquent temporary spousal support payments, failing to issue findings of fact and conclusions of law, and failing to "award [appellant] his sole and separate real property rather than to decree that he owns the property." We affirm in part and reverse and remand in part.

         I. Relevant Facts

         On February 5, 2014, the trial court held a hearing where the parties agreed on the record that appellant would pay appellee $2, 500 per month in pre-divorce temporary spousal support. On March 7, 2014, appellee filed a motion asking for entry of a temporary order that appellant pay $2, 500 per month in temporary support. On March 10, 2014, appellant filed a proposed rule 11 agreement stating that appellant's income had been incorrectly calculated and requesting modification of the agreement.

         On March 31, 2014, the trial court held a hearing on entry of temporary orders. At this hearing, appellant's attorney informed the trial court that the parties had "prepared some amended temporary orders [due to an] error . . . [in] the initial agreement . . . for temporary spousal support. . . ." Appellee's attorney responded that he understood that appellant's income, including retirement from the military, Continental Airlines, and social security, totaled almost $5, 000. Appellee's attorney stated that appellant withdrew $230, 000 from his 401K account rather than taking monthly payments from Continental, and appellant's anticipated income of "around $1, 400" would no longer be available.

         On May 7, 2015, appellant filed a motion for amended temporary orders, agreeing, in relevant part, to pay appellee $1, 000 per month. The motion alleges that at the February 5 hearing, the trial court heard evidence "based on erroneous and false statements, " resulting "in [a] significant error in the calculation of [his monthly income]." On May 14, 2014, appellant filed a motion for second amended temporary orders.

         On November 25, 2014, the trial court held a hearing on appellee's motion to enter temporary orders filed on March 7, 2014 and requesting the trial court to order appellant to pay $2, 500 in monthly spousal support based on the agreement entered on February 5, 2014. Appellant and his counsel were not present for this hearing. The trial court recalled that there was "a disagreement over what was-what was the agreement was." Appellee replied, "Yes, sir; but we clearly stated on the record that they would be paying [appellee] the $2, 500 a month." After noting that nothing in the record showed that appellant's attorney had been notified of the hearing to enter temporary orders, the trial court said, "Are you representing to the court that [appellant's attorney] was duly notified of the fact that you had a hearing set this morning at 10:30 to enter temporary orders that were dictated into the record." Appellee said, "Yes, sir."[2] When the trial court asked if the temporary orders being offered by appellee "properly reflected the agreement of the parties as dictated into the record, " appellee replied, "They properly reflect the agreement that was dictated into the record." The trial court then granted appellee's motion for temporary order, requiring appellant to pay appellee $2, 500 a month in temporary support. Subsequently, appellant objected to the temporary orders, which the trial court overruled. A bench trial was held, the divorce was granted, and the community estate was divided. The trial court ordered appellant to pay $20, 000 in arrearages of temporary spousal support in its final divorce decree. This appeal followed.

         II. Post-Divorce Spousal Maintenance

         By his first issue, appellant contends that the trial court abused its discretion by awarding post-divorce spousal maintenance in the amount of $1, 500 per month.

         We review an award of post-divorce spousal maintenance for abuse of discretion. Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.-Corpus Christi 2002, no pet.). "The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision or if reasonable minds could differ as to the result." Id. at 749. A specific determination of spousal maintenance is made on a case-by-case basis. Id. A court may not order maintenance in excess of twenty percent of the obligor spouse's monthly gross income. Tex. Fam. Code Ann. § 8.055 (West, Westlaw through Ch. 49, 2017 R.S.).

         Here, there is evidence that appellant earned over $440, 000 in 2013 based on his monthly earnings and on his withdrawal of his Continental Airlines 401K account. Twenty percent of $440, 000 is $88, 800, which constitutes an amount of $7, 400 per month.[3] See Tex. Fam. Code Ann. § 8.055 (West, Westlaw through Ch. 49, 2017 R.S.). Appellant testified that after 2013, but prior to the trial held in May 2015, he withdrew $100, 000 from a retirement account to pay for his living expenses and legal fees, making his income approximately $120, 000 in 2014, with twenty percent of his income per month being $2, 000.[4] Thus, taking all of the evidence in the light most favorable to the trial court's ruling, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not, there is some evidence that the amount of appellant's income supported the trial court's finding that $1, 500 was within the statutory twenty percent cap. See Slicker v. Slicker, 464 S.W.3d 850, 863 (Tex. App.-Dallas 2015, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Accordingly, the trial court did not abuse its discretion when it determined appellant's monthly income. See Amos, 79 S.W.3d at 749. We overrule appellant's first issue.

         III.Temporary Pre-Divorce ...

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