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Stewart v. Stewart

Court of Appeals of Texas, Ninth District, Beaumont

May 24, 2018

THOMAS LEE STEWART, Appellant
v.
ELECTOR JANE STEWART, Appellee

          Submitted on May 8, 2018

          On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 14-09-09876

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice

         In this appeal arising from a divorce proceeding, appellant Thomas Lee Stewart ("Thomas") challenges the trial court's final decree of divorce awarding spousal maintenance to Elector Jane Stewart ("Jane"). Thomas contends that Jane failed to produce sufficient evidence showing that she was entitled to an award of spousal maintenance under section 8.051 of the Texas Family Code. See Tex. Fam. Code Ann. § 8.051 (West Supp. 2017). We affirm the trial court's judgment.

         BACKGROUND

         After approximately fourteen years of marriage, Thomas filed for divorce. Jane filed a counter-petition for divorce on several grounds, including adultery, and she requested a disproportionate share of the community property, spousal maintenance, and attorney's fees. Prior to trial, the parties entered into a mediated settlement agreement, in which Thomas temporarily agreed to pay Jane $1875 per month in spousal maintenance.

         During trial, Jane testified about her health conditions, explaining that she has deteriorated discs in her neck and lower back, vertigo, high blood pressure, type one diabetes, depression, psoriasis, arthritis in her back and hands, and tremors in her right hand. Jane testified that she takes multiple medications to treat her conditions. Jane explained that she had neck surgery in 1996, and she had surgery on her lower back in 1985 and 2006. According to Jane, she will not be able to afford health insurance after the trial court grants the divorce.

         Jane testified that she is sixty-four years old and has not worked in nearly twenty years, and she does not have any retirement accounts. Jane testified that she stopped working outside the home when she had neck surgery in 1996. Jane explained that she could not return to work as a bank teller because her back and neck prevent her from being able to stand for long periods, and pain and spasms in her sciatic nerve prevent her from sitting for long periods. Jane also explained that her arthritis and tremors in her right hand limit her ability to write, and she can only sit at a computer for approximately fifteen minutes due to her neck problems. The trial court admitted medical records from Dr. Lee Pollack, the neurologist who treats Jane for her back and neck problems, and Pollack's records document some of Jane's medical conditions and symptoms, as well as her medications and MRI results.

         According to Jane, she never applied for disability because she was married, and Thomas provided for her needs. Jane explained that she did not know what she would do if the trial court denied her request for spousal maintenance because she did not have any other source of income. According to Jane, her medical conditions are incapacitating and affect her ability to work. Jane testified that she did not provide a medical opinion concerning her work limitations because she was unable to afford the doctor's fee. Jane testified that she wanted the trial court to award her approximately $2000 per month in spousal maintenance for an indefinite period of time.

         Thomas testified that he believes that Jane has the ability to get a job, and that he should not have to support Jane after the divorce. According to Thomas, he has difficulty paying his own bills, and he cannot afford to pay spousal maintenance. After hearing the parties testify, the trial court noted that Jane's claim for spousal maintenance was based upon Jane having an incapacitating physical or mental disability, and was not based upon Jane lacking the ability to provide for her basic needs. The trial court also noted that expert testimony is not necessary to prove disability, and the trial court took the matter of Jane's incapacity under advisement.

         In the final decree, the trial court found that Jane lacks sufficient property, including separate property, to provide for her minimum reasonable needs and has been married to Thomas for more than ten years. The trial court found that Jane lacks the ability to earn sufficient income to provide for her minimum needs, and that Jane had not exercised diligence in developing the necessary skills to provide for her reasonable needs during the separation. The trial court further found that Jane is unable to earn sufficient income to provide for her reasonable needs because of an incapacitating physical disability. The trial court ordered Thomas to pay Jane $1200 per month for sixty consecutive months or until certain events occur.

         Thomas filed a motion for new trial, arguing that the evidence is legally and factually insufficient to support the trial court's judgment. Thomas complained, among other issues, that the evidence is insufficient to support the trial court's finding that Jane is eligible for spousal maintenance in the sum of $1200 per month. After conducting a hearing, the trial court denied Thomas's motion for new trial.

          The trial court issued findings of fact and conclusions of law. Concerning spousal ...


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