holding that the law does not require a spouse to spend down long-term assets or liquidate all available assets to meet short-term needsSummary of this case from In re Marriage of Boyd
Opinion filed November 13, 2007.
On Appeal from the 308th District Court Harris County, Texas Trial Court Cause No. 2003-31838.
Panel consists of Chief Justice, HEDGES and Justices ANDERSON and SEYMORE.
Appellant, Mavis Clifton Dunaway, challenges a final decree of divorce issued on August 28, 2006. Appellant raises five issues on appeal: (1) whether the trial court erred in awarding spousal maintenance; (2) whether the trial court erred in awarding spousal maintenance for an indefinite period of time; (3) whether the divorce decree is voidable when it provides for spousal maintenance for an indefinite period of time without specifically finding an incapacitating physical or mental disability; (4) whether the trial court erred in awarding Susan a $6,569.60 judgment for medical expenses without proof the expenses were reasonable and necessary; and (5) whether the trial court erred in denying the motion for new trial or motion to reform judgment based on newly discovered evidence. We affirm in part and reverse and remand in part.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Susan married in November 1978 and separated in 2003. Appellant filed for divorce on June 6, 2003, and Susan filed a counter petition on June 23, 2003. In the final decree of divorce, the trial court ordered appellant to pay spousal maintenance in the amount of $500 per month until further order of the court. The trial court also awarded Susan a judgment against appellant for $13,953.93. Part of the money judgment included $6,569.60 in medical expenses incurred by Susan after appellant discontinued her medical insurance in violation of the court's temporary orders. On September 15, 2006, appellant requested the trial court file findings of fact and conclusions of law. Appellant filed a notice of past due findings of fact and conclusions of law on October 9, 2006, and the trial court issued its findings of fact and conclusions of law on December 1, 2006. In its findings, the trial court found during the marriage appellant was the primary wage-earner and by agreement of the parties, Susan was a "stay at home" wife with certain known mental and to some extent physical limitations and disabilities. The court further found Susan was eligible to receive spousal maintenance because she lacked the financial resources, including the community assets and liabilities apportioned to her in the divorce, and the ability to meet her needs. In addition, the trial court found Susan was eligible to receive maintenance based on her age, employment history, lack of earning ability, and her physical and emotional condition. On December 11, 2006, appellant filed a request for additional findings of fact and conclusions of law, but the trial court never responded.
A. Did the Trial Court Err in Awarding Spousal Maintenance?
In his first issue, appellant contends the trial court erred in awarding spousal maintenance to Susan. More specifically, appellant argues the evidence is legally and factually sufficient to show Susan received sufficient property and monies to meet her minimum reasonable needs. Appellant also argues the trial court erred in not considering the fact Susan admitted to three extramarital affairs.
1. Standard of Review
We review the award of spousal maintenance under an abuse of discretion standard. Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.CDallas 2001, pet. denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. There is no abuse of discretion if some evidence of a substantive and probative nature supports the decision. Dennis v. Smith, 962 S.W.2d 67, 68 (Tex.App.CHouston [1st Dist.] 1997, pet. denied). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error; however, they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.
Findings of fact entered in a case tried to a court have the same force and dignity as a jury's verdict upon special issues; however, they are not conclusive when a complete statement of facts appears in the record. Id.; Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.CHouston [14th Dist.] 1985, writ ref'd n.r.e.). Therefore, we apply the same standards when reviewing the legal and factual sufficiency of the evidence supporting the trial court's fact findings as we do when reviewing the evidence supporting a jury's answer to a special issue. Pickens, 62 S.W.3d at 214.
When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id.
When reviewing the factual sufficiency of evidence, we consider and weigh all the evidence and will set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong or unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.CHouston [14th Dist.] 2001, pet. denied). A trial court abuses its discretion as to legal matters when it fails to analyze or apply the law correctly. Pickens, 62 S.W.3d at 214 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support. Deltuva v. Deltuva, 113 S.W.3d 882, 888 (Tex.App.CDallas 2003, no pet.) (citing O'Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex.App.CAustin 2002, no pet.)). The trial court may, in its discretion, award spousal maintenance only if the party seeking maintenance meets specific eligibility requirements. Id.; see Tex. Fam. Code Ann. `8.051 (Vernon 2006). In marriages lasting ten years or more, a spouse is eligible to seek spousal maintenance if the spouse lacks sufficient property to meet minimum reasonable needs and cannot support himself or herself due to (1) an incapacitating physical or mental disability, (2) a child in the home with a disability requiring substantial care and supervision, or (3) the lack of adequate earning ability. Tex. Fam. Code Ann. `8.051 (Vernon 2006). 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 (citing Amos v. Amos, 79 S.W.3d 747, 749 (Tex.App.CCorpus Christi 2002, no pet.)).
The evidence is undisputed appellant and Susan were married for the requisite ten years. The two were married for approximately twenty-seven years before obtaining a divorce. What appellant argues is that Susan has sufficient property to meet her minimum reasonable needs. Appellant claims Susan received sufficient community property in the divorce to meet her needs and, therefore, the court abused its discretion in awarding spousal maintenance.
Susan testified at trial her minimum monthly expenses were approximately $1,700 per month. She also introduced into evidence a Financial Information Sheet which stated her necessary monthly living expenses were $1,746 per month. Appellant did not introduce any evidence at trial to negate Susan's minimum monthly expenses; therefore, we find there is evidence sufficient for the trial court to determine Susan's minimum reasonable needs were $1,746 per month.
According to the record, Susan received approximately $32,000 in 2004 from the sale of two pieces of land and $3,600 over a period of six months from temporary alimony payments. However, Susan testified at the time of trial she had already spent approximately $26,000 on groceries, personal expenses, and car maintenance. Susan also received property in the final divorce decree. The property awarded to Susan included: (1) one checking account worth $459 at the time of trial; (2) one savings account worth $4,975.43 at the time of trial; (3) an individual retirement account worth $2,942.44 at the time of trial; (4) two annuities worth $3,199 and $3,133 as of July 7, 2005; (5) a judgment against appellant for $13,953.93 resulting from appellant's cancellation of Susan's health insurance, one-half of the property taxes paid from community funds on the separate property of appellant, and rental income from the separate property of appellant; (6) a judgment against appellant for $6,500 for unpaid spousal maintenance from August 1, 2005 through, and including, August 1, 2006; (7) one-half of the IRS tax refund checks with Susan's portion totaling $2,207.47; (8) all clothing, jewelry, and other personal effects in Susan's possession; and (9) a 1988 Ford Crown Victoria motor vehicle. The total amount of property Susan received, however, includes money tied up in an IRA and annuities which are not easily liquidated. In 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 to obtain job skills and meet needs in the short term. Trueheart v. Trueheart, No. 14-02-01256-CV, 2003 WL 22176626, at *3 (Tex.App.CHouston [14th Dist.] Sept. 23, 2003, no pet.) (mem. op.). In addition, the court found in its findings of fact certain community property liabilities existed at the time of the divorce. The community liabilities included: (1) a Discover credit card account with a balance of $5,943.42; (2) a loan for $10,350 from Susan's parents for legal expenses; and (3) reimbursement for moving expenses loaned to Susan by her parents for $750.
While the trial court found certain community liabilities existed, it did not specify in either the Final Divorce Decree or the Findings of Fact which party was liable for the debt.
Furthermore, the record establishes before the separation Susan had not worked for over twenty years and her education was minimal. Susan had graduated from high school and taken a few college courses. Susan was a "stay-at-home" wife and appellant was the "breadwinner." At the time of trial, Susan was still unemployed but had been seeking employment since the separation in 2003. In July 2003, River Haven Nursing Home hired Susan to work in the kitchen for $6.50 an hour, but she only worked there for approximately one week. Susan testified she quit the job because she was physically unable to do the work. In May 2003, Susan worked at Subway for a brief period of time, but she was subsequently laid off because of reductions in the staff. Susan testified in the year 2003 she only made $200, and in the year 2004 her only income was the $32,000 from the sale of the properties. Other than the property received during the divorce, Susan did not have any separate property to rely on.
In its Findings of Fact, the trial court found spousal maintenance was justified because Susan lacked the financial resources and the ability to meet her needs independently. The trial court found Susan lacked the financial resources to independently meet her needs despite the fact she received community assets in the divorce. The trial court further found Susan was eligible for maintenance because of her age, employment history, lack of earning ability, and her physical and emotional condition. The evidence demonstrates that because Susan's earnings since the time of separation were minimal, her lack of employment skills limits her to low income jobs, she has no separate property, and her monthly expenses are approximately $1,746, she definitely faces a monthly shortfall. While Susan received a larger portion of the community property than appellant, the trial court could have reasonably concluded her funds would be exhausted before her earnings matched her reasonable minimum monthly expenses. See Deltuva, 113 S.W.3d at 888 (noting even though the wife was awarded the majority of the marital estate there was evidence to support the conclusion the wife's living expenses would significantly exceed her income); Trueheart, 2003 WL 22176626, at *3 (holding an award of $290,000 of community property was not sufficient to meet wife's minimum reasonable needs because over half of the award was not easily liquidated and the wife's income generating potential was minimal). Based on a review of the record, we cannot conclude the trial court's decision to order appellant to pay spousal maintenance based on Susan's inability to meet her minimum reasonable needs was an abuse of discretion.
Next, appellant argues the trial court abused its discretion in awarding Susan spousal maintenance because it did not consider the fact Susan admitted to three extramarital affairs during the marriage. Once a court determines a spouse is eligible for maintenance payments, section 8.052 of the Texas Family Code provides a non-exhaustive list of factors the court may consider in determining "the nature, amount, duration, and manner of periodic payments." Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex.App.CSan Antonio 2004, pet. denied) (citing Limbaugh v. Limbaugh, 71 S.W.3d 1, 12-13 (Tex.App.CWaco 2002, no pet.); see Tex. Fam. Code Ann. `8.052. Included in this list of factors is any marital misconduct of the spouse seeking maintenance. Tex. Fam. Code Ann. `8.052(11). However, the statute does not assign any weight to any particular factor. See id. `8.052.
It is established in the record Susan committed adultery three times during the course of the marriage. The trial court heard this testimony and stated on the record it was a "tie" between the parties. During Susan's testimony regarding her adultery, the court stated:
THE COURT: I remind you, that that's a tie. He's had an affair. She's had an affair."
MR. STOCKER: Is that a question, Judge?
THE COURT No. It's a statement. It's also an encouragement to go to another subject that's more relevant to the Court right now.
MR. STOCKER: Yes, sir.
Despite the trial court's failure to make a finding of fact regarding Susan's adultery, based on Susan's testimony and the judge's comment during trial, we can infer the trial court took this information into consideration. In addition, the Findings of Fact reflect the trial court took some of the other factors into consideration including the contribution of Susan as the homemaker, Susan's mental and physical condition, appellant's separate property, Susan's lack of education and employment skills, and appellant's ability to meet Susan's personal needs. Therefore, we cannot say the trial court abused its discretion in determining the nature, amount, duration and manner of spousal maintenance.
Furthermore, appellant only generally challenges the trial court's failure to consider the extramarital affairs. Appellant fails to specifically raise a separate issue challenging the trial court's failure to enter additional findings of fact. On December 11, 2006, appellant requested additional findings of fact and conclusions of law from the court. Within his request, appellant asked the trial court to make a finding of fact that Susan admitted to three extramarital affairs during the marriage. The trial court did not respond to this request. On appeal, however, appellant does not specifically argue the trial court's failure to enter the additional findings of fact was error; therefore, he has waived any review of whether these findings should have been entered. See Tex. R. App. P. 38.1; Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App.CDallas 2004, no pet.) (holding appellant waived certain issues due to inadequate briefing). Consequently, we overrule appellant's first issue.
In his brief, appellant states: "Appellee Susan Dunaway admits to having three affairs during the marriage. Yet the Court, in its Findings of Fact regarding the issue of spousal maintenance, does not even mention the three affairs Appellee admitted. Appellant['s] requests for additional findings of fact were ignored by the Court."
B. Did the Trial Court Err in Awarding Spousal Maintenance for an Indefinite Period of Time?
In his second issue, appellant contends the trial court erred in awarding Susan spousal maintenance for an indefinite period of time. More specifically, appellant argues the evidence is legally and factually insufficient to prove Susan had an incapacitating physical or mental disability. 1. Standard of Review
Appellant breaks down his second issue into three sub-issues: (1) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating mental disability, (2) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating physical disability, and (3) the evidence is legally and factually insufficient to show Susan's alleged physical or mental disabilities caused her to be incapacitated. We find the sub-issues are similar enough to address together.
Within this issue, appellant also argues the trial court only implicitly found Susan had an incapacitating physical or mental disability. Appellant argues the trial court's Findings of Fact do not include a specific finding that Susan had an incapacitating mental or physical disability. We disagree with this contention. In the court's Finding of Fact number 5, it states "[t]he court finds that during the marriage MAVIS CLIFTON DUNAWAY was the primary wage-earner and by agreement of the parties, SUSAN DAWN DUNAWAY, was a "stay-at-home" wife with certain known mental and to some extent physical limitations/disabilities." The court also states in Finding of Fact number 12 Susan was eligible to receive maintenance based on direct testimony from her mother regarding her mental disabilities and Susan's physical and emotional condition. Furthermore, the court's explanation for awarding a disproportionate division of the estate in Finding of Fact number 11 states Susan suffered mental disabilities resulting from brain damage at birth and certain physical disabilities limited her ability to maintain gainful employment. In its Conclusion of Law number 11 the court concludes "that if a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues." Based on these findings, we do not agree with appellant that the trial court only implicitly found an incapacitating mental or physical disability.
When reviewing whether a trial court abused its discretion by ordering spousal maintenance for an indefinite period of time, we use the same standard as discussed above. We review the award of spousal maintenance under an abuse of discretion standard. Pickens, 62 S.W.3d at 214. A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Id. There is no abuse of discretion if some evidence of a substantive and probative nature supports the decision. Dennis, 962 S.W.2d at 68. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error; however, they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214.
The court may only order spousal maintenance for a period longer than three years if the recipient spouse has an incapacitating physical or mental disability. Tex. Fam. Code Ann. `8.054; Pickens, 62 S.W.3d at 215. Testimony on incapacity need not be limited to experts. Pickens, 62 S.W.3d at 215. A fact finder may reasonably infer incapacity from circumstantial evidence or the competent testimony of lay witnesses. Id. The question of the extent and duration of incapacity is an issue that can be answered by lay opinion and does not require medical testimony. Id. at 216.
During trial, Susan testified she had minimal brain damage which affected both her ability to learn and to secure employment. Susan testified she attended special education classes starting in the second grade until she graduated from high school. Susan also testified she had a deteriorating disc in her lower back, her knees often hurt, she suffered from seizures, and she suffered from depression. Susan testified she was on Nuerotin and Trileptal for her seizures and Zoloft and Zocor for her depression and cholesterol. In addition, Susan testified her mental stress kept her from being able to work. She testified when she became too stressed, she would lapse into a seizure. Susan did admit during trial she had not seen a doctor regarding her back pain since approximately 1996 and she had not had a seizure since 2004. Also, on direct examination by appellant's attorney, Susan testified she did not think she was incapacitated, and when asked why she wanted alimony she stated "I feel like I need it." However, Susan later explained she thought "incapacitated" meant being wheelchair-bound. Susan further testified her first paying job since separating from appellant was in the kitchen at the River Haven Nursing Home, but she quit after only one week because she physically could not perform the job. She also briefly worked at Subway, which she was physically able to do, but was laid off due to cut backs in the staff. Susan testified she volunteered at two different places three to four days a week. She testified she could cook, clean, and drive; however, she stated her choices in employment were limited because she could not drive on freeways due to her inability to handle stressful situations.
Susan's mother, Dottie King, testified Susan had limitations through her high school years, and she became stressed and frustrated if she had to perform her work too quickly or under pressure. Dottie testified she believed Susan had incapacitating mental disabilities. Dottie admitted Susan liked to work and wanted to work, but because of Susan's age, disabilities, and lack of marketable skills, she believed Susan could not secure and maintain appropriate employment.
Appellant testified he believed Susan could support herself and did not think she was one-hundred percent helpless. Appellant testified his wife could cook, clean, drive, and perform household chores. Appellant, however, admitted Susan attended special education classes through high school. He also testified he was aware his wife had some problems with depression, that she took medications for some health problems, and that she was epileptic.
After reviewing all the evidence, we conclude Susan presented some evidence of a substantive and probative nature to support the trial court's finding Susan has an incapacitating physical and mental disability. Although appellant does point to some evidence which contravenes a finding of physical and mental disability, including his opinion Susan can support herself, the trial court's ruling is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Therefore, the trial court did not abuse its discretion by awarding spousal maintenance for an indefinite period of time. Accordingly, we overrule appellant's second issue.
C. Is the Divorce Decree Voidable if it Provides for Spousal Maintenance for an Indefinite Period of Time Without Specifically Finding an Incapacitating Physical or Mental Disability?
In his third issue, appellant argues the final divorce decree is voidable. Appellant argues when a court's action is merely contrary to a rule or statute, the action is erroneous or voidable. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990).(Br22) More specifically, appellant contends in this case the divorce decree is voidable because the court only implicitly found Susan suffered from an incapacitating physical or mental disability, and therefore, the order is contrary to the Texas Family Code which says a court may not order maintenance that remains in effect for more than three years. As discussed above, we do not agree with appellant's contention that the court only implicitly found Susan suffered from an incapacitating physical or mental disability. We conclude the trial court did find Susan suffered from an incapacitating physical or mental disability in its Findings of Fact, and consequently, the divorce decree is not voidable. We overrule appellant's third issue.
D. Did the Trial Court Err in Awarding Susan a $6,569.60 Judgment for Medical Expenses Without Proof the Expenses Were Reasonable and Necessary?
In his fourth issue, appellant argues $6,569.60 of the $13,953.93 judgment awarded to Susan was improper. Appellant contends because Susan failed to comply with section 18.001 of the Texas Civil Practice and Remedies Code and did not prove her expenses through expert testimony, no evidence of reasonableness or necessity exists in the record.
This was the portion of the judgment awarded to Susan for medical costs incurred after appellant cancelled health insurance in violation of the court's temporary orders.
1. Standard of Review
When reviewing a no evidence, or legal sufficiency, challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id. at 827. The trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 819. This court cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement. Id. at 822. But if the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id. 2. Analysis
A claim for past medical expenses must be supported by evidence that such expenses were reasonable and necessary as a result of the injury. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex.App.CHouston [14th Dist.] 2007, no pet.). A proponent can prove reasonableness and necessity of past medical expenses through (1) expert testimony on the issues of reasonableness and necessity or (2) an affidavit prepared and filed in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. Id.; see Tex. Civ. Prac. Rem. Code `18.001 (Vernon 1997). Proof of amounts charged or paid is not proof of reasonableness. Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex.App.CHouston [14th Dist.] 2002, no pet.) (citing Rodriguez-Narrea v. Ridinger, 19 S.W.3d 531, 532 (Tex.App.CFort Worth 2000, no pet.)).
In this case, the only evidence Susan introduced regarding her medical expenses was an exhibit which contained copies of her doctor bills and prescription receipts. During trial, appellant objected to the introduction of the exhibit on the grounds of hearsay and improper predicate. In response, the judge admitted the exhibit to prove Susan had received medical bills, but the judge stated he could not receive the exhibit for the truth of the bills and he could not receive them as proof the expenses reflected in the exhibits were reasonable or necessary. Despite this, Susan failed to produce an affidavit in compliance with section 18.001 of the Texas Civil Practice and Remedies Code or produce expert testimony on the issue of reasonableness and necessity. Consequently, there is no evidence in the record of the reasonableness or necessity of the alleged medical expenses.
In response to appellant's argument, appellee makes three arguments. First, she argues appellant failed to specifically challenge the trial court's finding as to the expenses, therefore, the finding is binding on this court. The general rule is that an attack on the sufficiency of the evidence must be directed at specific findings of fact rather than at the judgment as a whole. Halbert v. Kidd Jones Oil Co., No. 07-04-0401-CV, 2005 WL 729039, at *3 (Tex.App.CAmarillo March 30, 2005, pet. denied) (mem. op.). The rule has often been stated that if the trial court's findings of fact are not challenged by a point of error on appeal, they are binding upon the appellate court. Id. However, a challenge to an unidentified finding of fact may be sufficient for review if it is included in the argument of the issue or point, or if after giving consideration to the nature of the case, the underlying applicable legal theories, and the findings of fact provided, the specific findings of fact which the appellant challenges can be fairly determined from the argument. Id. (citing Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982)). In his brief, appellant argues no evidence exists to support a finding that the $6,569.60 judgment for medical expenses was reasonable and necessary. Despite the fact appellant does not challenge the specific finding of fact which awarded Susan the $6,569.60 judgment, appellant's challenge can be determined from his argument. Accordingly, the finding is not binding on this court.
Appellee next argues appellant waived error on this complaint by failing to pursue his objection to an adverse ruling. We disagree. It is true appellant objected to the medical expenses exhibit, the trial court sustained the objection as to reasonable and necessary, and appellant did not further pursue an adverse ruling. However, in this appeal appellant is not challenging the admission or exclusion of evidence. Instead, appellant is arguing there is "no evidence" in the record to support a finding of reasonable and necessary. When appealing from a non-jury trial, an appellant is not required to preserve allegations of legal insufficiency. Renteria v. Trevino, 79 S.W.3d 240, 241 (Tex.App.CHouston [14th Dist.] 2002, no pet.). Those claims may be raised for the first time on appeal. Id. at 241-42. Accordingly, appellant did not waive error on this complaint.
Finally, appellee argues because these medical expenses were awarded due to appellant's violation of the court's temporary order, the trial court had the discretion to award such expenses to Susan without expert testimony or a medical record affidavit, but appellee offers no authority to support this contention. The law is well established that to present an issue to this court, a party's brief shall contain, among other things, a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h); see McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.CDallas 2001, pet. denied). Since appellee failed to adequately brief this argument and our research reveals no such authority, we find her argument is without merit. Accordingly, we sustain appellant's fourth issue.
E. Did the Trial Court Err in Denying Appellant's Motion for New Trial or Motion to Reform the Judgment?
In his fifth issue, appellant claims the trial court erred by denying his motion for new trial or a motion to reform the judgment based on newly discovered evidence. More specifically, appellant argues the new evidence was so material it would probably produce a different result if a new trial were granted.
In his motion for new trial, appellant also argued a new trial was warranted because (1) the evidence at trial failed to support a finding of physical or mental disability; (2) Susan admitted to three affairs during the marriage; (3) Susan offered no medical records or medical testimony to support her claim of mental incapacitation; and (4) the court failed to appoint an attorney ad litem to represent Susan. On appeal, however, appellant failed to brief any of these issues as they relate to the motion for new trial and only raises the newly discovered evidence issue. We, therefore, find all of the other issues relating to the motion for new trial have been waived and the only issue before us is whether the trial court erred by denying the motion for new trial based on newly discovered evidence. See Tex. R. App. P. 38.1; McIntyre, 50 S.W.3d at 682.
1. Standard of Review
Whether a motion for new trial based upon newly discovered evidence will be granted or refused is generally a matter within the sound discretion of the trial court. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds, 121 S.W.3d 715 (Tex. 2003). We will not disturb the decision on appeal absent an abuse of discretion. Id. In ruling on a motion for new trial, the trial court will consider the weight and the importance of the new evidence and its bearing upon the evidence received at trial. Id. The question is whether the refusal of the trial court to grant a new trial was a manifest abuse of discretion or a violation of a clear legal right. Id. An appellate court will indulge every reasonable presumption in favor of the trial court's refusal to grant a new trial. Id. at 809-10.
A party seeking a new trial based on newly discovered evidence must show (1) the evidence has come to his knowledge since trial; (2) the failure to discover the evidence before trial was not due to lack of diligence; (3) the new evidence is not cumulative; and (4) the new evidence is so material that it would probably produce a different result if a new trial were granted. Id. at 809.
Appellant filed a motion for new trial or to reform the judgment based on newly discovered evidence on September 26, 2006, and the trial court subsequently held a hearing. During the hearing, appellant testified he spoke with Susan in August 2006 and she informed him she had been working at TJ Max since November 2005. Appellant testified Susan told him she was classified as a full-time employee and trained other employees.
Susan testified she was employed at TJ Max as a fitting room attendant and had been working there since November 2005. When Susan was hired in November 2005 she was making $7.00 per hour and working twenty-five hours per week. At the time of trial, Susan was making $7.25 per hour and working thirty hours per week, which is the maximum number of hours TJ Max allows. Susan testified she never worked full-time for TJ Max and did not train employees, although occasionally she would show a new employee what to do in the fitting room. Susan testified on cross-examination she did not want to work more than thirty hours even if the store allowed her to do so. On re-direct, however, Susan testified she was unable to work more than thirty hours per week due to her stress level. In addition, Susan testified she had only missed work one time since she began.
After hearing all the evidence, the trial court denied the motion for new trial and the motion to reform judgment. Appellant argues on appeal he meets the four part test required for a new trial. Appellant argues he had no knowledge of this new evidence during trial since it occurred in November 2005, he could not have procured it prior to trial as it did not exist, the evidence is not merely cumulative and does not tend only to impeach, and the evidence would probably produce a different result if a new trial were granted.
The record does not reflect why the trial court denied the motion for new trial. Regardless of the ground on which the trial court based its decision, the trial court did not abuse its discretion. Based on the record, there was sufficient evidence for the trial court to decide, despite Susan's new monthly income, she still could not meet her minimum reasonable needs. A spouse's mere employment does not preclude an award of spousal maintenance. Trueheart, 2003 WL 22176626, at *3 (citing In re Marriage of Hale, 975 S.W.2d 694, 698 (Tex.App.CTexarkana 1998, no pet.)); see In re Gonzalez, No. 07-05-0205-CV, 2006 WL 3102303, at *4 (Tex.App.CAmarillo Nov. 2, 2006, no pet.) (mem. op.) (rejecting husband's contention that his wife's gainful employment during their separation before divorce precluded an award of spousal maintenance). The trial court could reasonably have decided Susan's monthly income from TJ Max, which would be approximately $870 before taxes, was still insufficient to meet her minimum needs considering her prior testimony that her monthly expenses totaled at least $1,700 per month. Furthermore, there was sufficient evidence for the trial court to decide Susan was still mentally or physically incapacitated and, therefore, still eligible for maintenance indefinitely. Along with the testimony during the original trial, Susan testified at the motion for new trial hearing she was unable to work more than thirty hours per week due to her conditions. We cannot say the trial court's refusal to grant the new trial or reform the judgment was a manifest abuse of discretion or a violation of a clear legal right. Accordingly, we overrule appellant's fifth issue.
We affirm the trial court's grant of spousal maintenance for an indefinite period of time, and we affirm the trial court's denial of a motion for new trial or to reform the judgment. We overrule appellant's argument that the divorce decree is contrary to the Texas Family Code and therefore voidable. We sustain appellant's argument regarding the medical expenses and, therefore, reverse the $6,569.60 portion of the trial court's judgment against appellant representing medical expenses incurred by Susan and remand for a new trial to determine whether the expenses were reasonable and necessary.