Thursday, July 8, 2010

Spousal Maintenance Awarded on Wife's Testimony

OWEN v. OWEN

No. 05-09-00709-CV
Court of Appeals of Texas, Fifth District, Dallas.

June 22, 2010

What Constitutes Sufficient Evidence to Support an Award of Spousal Maintenance?


The Texas Family Code provides a list of factors the court can consider and a few elements that must be satisfied. One combination is to have been married for at least 10 years and be disabled to the point that you are not able to earn enough money to cover you basic living expenses. Tex. Fam. Code Ann. § 8.05.

In Owen v. Owen, the husband and wife sought a divorce. The marriage had lasted at least 10 years and the wife testified that, due to the injuries she received in a head-on car collision years earlier, she was not able to work. The husband testified that she had worked, off and on, but when she would become bored with a job, she would quit.

Wife testified that her mortgage payment was $750 per month and she had a truck payment. As income, she had a roommate who paid $100 per month in rent and bought some groceries. The wife planned to enroll in the foodstamp program and other welfare programs, but had not yet been successful in doing so.

Husband on the other hand made $5,500 per month and had monthly living expenses of about $2,300.

The trial court awarded the wife $1,000 per month in spousal maintenance, presumably indefinitely because it would have been based on her disability, and husband appealed.


Proof Required to Establish Disability

The husband testified that wife could work but wouldn't and wife claimed that she couldn't. Husband's first complaint was that the trial court abused its discretion by awarding spousal maintenance on such weak evidence. However, the appeals court pointed out that all that is necessary to establish injury or disability is the testimony of the injured party and that such testimony, at the discretion of the finder of fact, can over power directly contradictory expert medical testimony. Pickens v. Pickens, 62 S.W.3d 212, 216 (Tex. App.-Dallas 2001, pet. denied).

Here, the trial court must have found wife's testimony to be credible both in terms of her disability and the extent of her basic monthly living expenses. Therefore, the trial court did not abuse its discretion in awarding spousal maintenance.

Spouse's Living Arrangements - Lack of Evidence on the Record

The spousal maintanence award can be denied if the spouse seeking maintenance engages in conjugal cohabitation or remarries. Here the wife was not remarried (this was an original petition for divorce). In his brief to the appeals court, the husband claimed to have "personal knowledge" that wife's relationship with her roommate was romantic in nature. However, he apparantly did not introduce any evidence to that effect at trial and therefore the record available to appelate review did not contain any evidence in support of that assertion.

Lessons Learned
  1. As always, credible testimony trumps less credible testimony.
  2. Make sure ALL of your evidence is on the record so that it's available to the appeals court for review.
  3. Hire a competent attorney if you are going to court. Undoubtedly the husband hired an attorney qualified to practice in the courts in Texas, but his attorney was from a firm that primarily engages in immigration matters. That did not make her incompetent, but it might have made her unsuitable.
  4. Tell your attorney all the facts in your case BEFORE trial starts. The husband apparently did not tell his attorney about his suspicions of his wife's romantic cohabitation--or if he did, that's all he had: suspicions.

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