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Gill v. Gill

Court of Appeals of Texas, Fifth District, Dallas

June 26, 2018

ROBERT EDWIN GILL, Appellant
v.
LYNDA RAE GILL, Appellee

          On Appeal from the 97th District Court Archer County, Texas Trial Court Cause No. 2015-0164A-CV

          Before Justices Bridges, Evans, and Whitehill

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         Appellant, Robert Edwin Gill, appeals from a final decree of divorce awarding appellee, Lynda Rae Gill spousal maintenance for a period of five years and 100% joint and survivor benefits in Robert's retirement pension plan. Robert[1] contends that the evidence is insufficient to support the court's award of spousal maintenance based on the trial court's finding that Lynda lacked the present ability to earn sufficient income to provide for her minimum reasonable needs. Robert also contends that the trial court erred in awarding 100% of his joint and survivor's annuity to Lynda because it amounts to an award of his future separate property. We affirm the court's award of spousal maintenance and reverse the award of 100% joint and survivor benefits in Robert's retirement pension plan and remand to the trial court for further proceedings.

         BACKGROUND

         Robert and Lynda divorced in 2017 after having been married for over thirty-nine years. In the final divorce decree, the court ordered Robert to pay Lynda $650 per month for five years or until the earliest of one of the following events occurs: Lynda receives her first payment of her share of Robert's retirement pension benefits; the death of either Lynda or Robert; Lynda's remarriage; or further orders from the court affecting the spousal maintenance obligation, including a finding of cohabitation. Lynda was also awarded a 100% interest in the joint and survivor's annuity of Robert's retirement pension plan.

         ANALYSIS

         I. Spousal maintenance.

         In his first issue, Robert contends that the evidence is insufficient to support the court's award of spousal maintenance based on its finding that Lynda lacked the present ability to earn sufficient income to provide for her minimum reasonable needs.

         The trial court may, in its discretion, award spousal maintenance when a divorce is sought in a marriage lasting ten years or more, and the spouse seeking spousal maintenance lacks sufficient property to meet her minimum reasonable needs and cannot support herself due to insufficient earning capability. Tex. Fam. Code Ann. § 8.051 (West 2006); Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex. App.-Dallas 2003, no pet.). We review the trial court's decision to award spousal maintenance under an abuse of discretion standard. Id. The legal and factual sufficiency of the evidence are relevant factors in assessing whether the trial court abused its discretion, but are not independent grounds for asserting error. Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.-San Antonio 2011, pet. denied). 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. In re Marriage of McFarland, 176 S.W.3d 650, 656 (Tex. App.-Texarkana 2005, no pet.).

         Robert contends that Lynda's yearly salary was more than adequate to meet her minimum reasonable needs and that it was her request to be awarded the marital home which put her in a worse financial situation. Determining the spouse's minimum reasonable needs is a fact-specific determination done on a case-by-case basis. Deltuva, 113 S.W.3d at 888. Because Robert has limited his argument to Lynda's income and housing costs, we likewise limit our review to consideration of the evidence regarding Lynda's income and housing costs.

         The evidence showed that when Robert and Lynda divorced, they had been married for more than thirty-nine years. Lynda was fifty-eight years old and had been employed with the Texas Department of Public Safety for thirty-one years. She was eligible to retire from her job but did not know when she would retire. Lynda's gross salary was $2, 829 per month and, after taxes and deductions for retirement and her 401k, her net monthly pay was $2, 136.07. Lynda testified that her monthly expenses totaled $2, 764.54 based upon the assumption that the court would award her the debt and equity from the marital home. The record reflects that the marital home was awarded to Lynda in the final divorce decree. The mortgage payment and utilities associated with the home were $1, 191.85. Lynda testified that her shortfall each month would $628.47. She also testified that she did not have sufficient assets to pay for her monthly minimum reasonable needs.[2]

         With regard to housing, Lynda testified that during the pendency of the divorce, she was living with her son in the house her son rented from her mother and did not have any rent payments; however, she "was not going to live with her son forever." She testified that if she was awarded the marital residence, she would move back into the house and live there. She testified that the marital house was actually cheaper than some of the other housing places she looked at. She testified that she had contacted an apartment complex and learned that the rent would be a little over $1, 000 a month.[3] Robert does not challenge the trial court's award of the marital home to Lynda. Nor did he present evidence showing that housing was available to Lynda for an amount significantly less than the cost of living in the marital home.

         Based on this record, we cannot say that the trial court abused its discretion in considering the costs associated with the marital home in determining Lynda's minimum reasonable needs for purposes of spousal maintenance and finding that Lynda lacked the present ...


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