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Affirm in Part, Reversed and Remanded in = Part and=20 Memorandum Opinion filed November 13, 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-01042-CV

____________

 

MAVIS=20 CLIFTON DUNAWAY, = Appellant

 

V.

 

SUSAN DAWN=20 DUNAWAY, = Appellee

 

 

On Appeal from the = 308th District Court

Harris County, = Texas

Trial Court Cause = No. 2003-31838

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellant,=20 Mavis Clifton Dunaway, challenges a final decree of divorce issued = on=20 August 28, 2006.  Appellant raises five issues on appeal: (1) = whether=20 the trial court erred in awarding spousal maintenance; (2) whether = the=20 trial court erred in awarding spousal maintenance for an = indefinite period=20 of time; (3) whether the divorce decree is voidable when it = provides for=20 spousal maintenance for an indefinite period of time without = specifically=20 finding an incapacitating physical or mental disability; (4) = whether the=20 trial court erred in awarding Susan a $6,569.60 judgment for = medical=20 expenses without proof the expenses were reasonable and necessary; = and (5)=20 whether the trial court erred in denying the motion for new trial = or=20 motion to reform judgment based on newly discovered = evidence.  We=20 affirm in part and reverse and remand in part.

Factual=20 and Procedural Background

Appellant=20 and Susan married in November 1978 and separated in 2003.  = Appellant=20 filed for divorce on June 6, 2003, and Susan filed a counter = petition on=20 June 23, 2003.  In the final decree of divorce, the trial = court=20 ordered appellant to pay spousal maintenance in the amount of $500 = per=20 month until further order of the court.  The trial court also = awarded=20 Susan a judgment against appellant for $13,953.93.  Part of = the money=20 judgment included $6,569.60 in medical expenses incurred by Susan = after=20 appellant discontinued her medical insurance in violation of the=20 court=3Ds=20 temporary orders.  On September 15, 2006, appellant requested = the=20 trial court file findings of fact and conclusions of law.  = Appellant=20 filed a notice of past due findings of fact and conclusions of law = on=20 October 9, 2006, and the trial court issued its findings of fact = and=20 conclusions of law on December 1, 2006.  In its findings, the = trial=20 court found during the marriage appellant was the primary = wage-earner and=20 by agreement of the parties, Susan was a Astay at=20 home@ = wife with=20 certain known mental and to some extent physical limitations and=20 disabilities.  The court further found Susan was eligible to = receive=20 spousal maintenance because she lacked the financial resources, = including=20 the community assets and liabilities apportioned to her in the = divorce,=20 and the ability to meet her needs.  In addition, the trial = court=20 found Susan was eligible to receive maintenance based on her age,=20 employment history, lack of earning ability, and her physical and=20 emotional condition.  On December 11, 2006, appellant filed a = request=20 for additional findings of fact and conclusions of law, but the = trial=20 court never responded.

 

 

Discussion

A.     =20 Did the Trial Court Err in Awarding Spousal = Maintenance?

In his=20 first issue, appellant contends the trial court erred in awarding = spousal=20 maintenance to Susan.  More specifically, appellant argues = the=20 evidence is legally and factually sufficient to show Susan = received=20 sufficient property and monies to meet her minimum reasonable = needs. =20 Appellant also argues the trial court erred in not considering the = fact=20 Susan admitted to three extramarital affairs. 

1.      =20 Standard of Review

We review=20 the award of spousal maintenance under an abuse of discretion=20 standard.  Pickens v. Pickens, 62 S.W.3d 212, 214 = (Tex.=20 App.CDallas=20 2001, pet. denied).  A trial court abuses its discretion when = it=20 rules arbitrarily, unreasonably, without regard to guiding legal=20 principles, or without supporting evidence.  Id.  = There=20 is no abuse of discretion if some evidence of a substantive and = probative=20 nature supports the decision.  Dennis v. Smith, 962 = S.W.2d 67,=20 68 (Tex. App.CHouston=20 [1st Dist.] 1997, pet. denied).  Under the abuse of = discretion=20 standard, legal and factual sufficiency of the evidence are not=20 independent grounds for asserting error; however, they are = relevant=20 factors in assessing whether the trial court abused its = discretion. =20 Pickens, 62 S.W.3d at 214.

Findings=20 of fact entered in a case tried to a court have the same force and = dignity=20 as a jury=3Ds verdict=20 upon special issues; however, they are not conclusive when a = complete=20 statement of facts appears in the record.  Id.; = Middleton=20 v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. = App.CHouston=20 [14th Dist.] 1985, writ ref=3Dd=20 n.r.e.).  Therefore, we apply the same standards when = reviewing the=20 legal and factual sufficiency of the evidence supporting the trial = court=3Ds fact=20 findings as we do when reviewing the evidence supporting a=20 jury=3Ds answer=20 to a special issue.  Pickens, 62 S.W.3d at 214. =20

When=20 reviewing the legal sufficiency of the evidence, we review the = evidence in=20 the light most favorable to the challenged finding and indulge = every=20 reasonable inference that would support it.  City of Keller v.=20 Wilson, 168=20 S.W.3d 802, 822 (Tex. 2005).  We=20 credit favorable evidence if a reasonable fact finder could, and = disregard=20 contrary evidence unless a reasonable fact finder could not.  = Id. at 827.  The evidence is legally sufficient if it = would=20 enable fair-minded people to reach the verdict under review.  = Id. 

When reviewing the = factual=20 sufficiency of evidence, we=20 consider and weigh all the evidence and will set aside the verdict = only if=20 the evidence is so weak or if the finding is so against the great = weight=20 and preponderance of the evidence that it is clearly wrong or=20 unjust.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 = (Tex.=20 2001).  The trier of fact is the = sole judge=20 of the credibility of the witnesses and the weight to be given to = their=20 testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 = S.W.3d=20 599, 615B16 (Tex. = App.CHouston [14th Dist.] = 2001, pet.=20 denied).  A trial court abuses its discretion as to legal = matters=20 when it fails to analyze or apply the law correctly.  = Pickens,=20 62 S.W.3d at 214 (citing=20 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. = 1992)).

         =20 2.      =20 Analysis

The=20 purpose of spousal maintenance is to provide temporary and = rehabilitative=20 support for a spouse whose ability to support herself has eroded = over time=20 while engaged in homemaking activities and whose capital assets = are=20 insufficient to provide support.  Deltuva v. Deltuva, = 113=20 S.W.3d 882, 888 (Tex. App.CDallas=20 2003, no pet.) (citing O=3DCarolan v.=20 Hopper, 71=20 S.W.3d 529, 533 (Tex. App.CAustin=20 2002, no pet.)).  The trial court may, in its discretion, = award=20 spousal maintenance only if the party seeking maintenance meets = specific=20 eligibility requirements.  Id.; see Tex. Fam. Code = Ann.=20 ' = 8.051=20 (Vernon 2006).  In marriages lasting ten years or more, a = spouse is=20 eligible to seek spousal maintenance if the spouse lacks = sufficient=20 property to meet minimum reasonable needs and cannot support = himself or=20 herself due to (1) an incapacitating physical or mental = disability, (2) a=20 child in the home with a disability requiring substantial care and = supervision, or (3) the lack of adequate earning ability.  = Tex. Fam.=20 Code Ann. ' = 8.051=20 (Vernon 2006).  Determining the spouse=3Ds minimum=20 reasonable needs is a fact-specific determination done on a = case-by-case=20 basis.  Deltuva, 113 S.W.3d at 888 (citing Amos v.=20 Amos, 79 S.W.3d 747, 749 (Tex. App.CCorpus=20 Christi 2002, no pet.)).    

The=20 evidence is undisputed appellant and Susan were married for the = requisite=20 ten years.  The two were married for approximately = twenty-seven years=20 before obtaining a divorce.  What appellant argues is that = Susan has=20 sufficient property to meet her minimum reasonable needs.  = Appellant=20 claims Susan received sufficient community property in the divorce = to meet=20 her needs and, therefore, the court abused its discretion in = awarding=20 spousal maintenance.

Susan=20 testified at trial her minimum monthly expenses were approximately = $1,700=20 per month.  She also introduced into evidence a Financial = Information=20 Sheet which stated her necessary monthly living expenses were = $1,746 per=20 month.  Appellant did not introduce any evidence at trial to = negate=20 Susan=3Ds minimum=20 monthly expenses; therefore, we find there is evidence sufficient = for the=20 trial court to determine Susan=3Ds minimum=20 reasonable needs were $1,746 per month.

According=20 to the record, Susan received approximately $32,000 in 2004 from = the sale=20 of two pieces of land and $3,600 over a period of six months from=20 temporary alimony payments.  However, Susan testified at the = time of=20 trial she had already spent approximately $26,000 on groceries, = personal=20 expenses, and car maintenance.  Susan also received property = in the=20 final divorce decree.  The property awarded to Susan = included: (1)=20 one checking account worth $459 at the time of trial; (2) one = savings=20 account worth $4,975.43 at the time of trial; (3) an individual = retirement=20 account worth $2,942.44 at the time of trial; (4) two annuities = worth=20 $3,199 and $3,133 as of July 7, 2005; (5) a judgment against = appellant for=20 $13,953.93 resulting from appellant=3Ds=20 cancellation of Susan=3Ds health=20 insurance, one-half of the property taxes paid from community = funds on the=20 separate property of appellant, and rental income from the = separate=20 property of appellant; (6) a judgment against appellant for $6,500 = for=20 unpaid spousal maintenance from August 1, 2005 through, and = including,=20 August 1, 2006; (7) one-half of the IRS tax refund checks with=20 Susan=3Ds portion=20 totaling $2,207.47; (8) all clothing, jewelry, and other personal = effects=20 in Susan=3Ds=20 possession; and (9) a 1988 Ford Crown Victoria motor = vehicle.  The=20 total amount of property Susan received, however, includes money = tied up=20 in an IRA and annuities which are not easily liquidated.  In=20 considering assets awarded in the divorce, the law does not = require a=20 spouse to spend down long-term assets, liquidate all available = assets, or=20 incur new debt simply to obtain job skills and meet needs in the = short=20 term.  Trueheart v. Trueheart, No. 14-02-01256-CV, = 2003 WL=20 22176626, at *3 (Tex. App.CHouston=20 [14th Dist.] Sept. 23, 2003, no pet.) (mem. op.).  In = addition, the=20 court found in its findings of fact certain community property = liabilities=20 existed at the time of the divorce.  The community = liabilities=20 included: (1) a Discover credit card account with a balance of = $5,943.42;=20 (2) a loan for $10,350 from Susan=3Ds parents=20 for legal expenses; and (3) reimbursement for moving expenses = loaned to=20 Susan by her parents for $750.[1]

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Furthermore,=20 the record establishes before the separation Susan had not worked = for over=20 twenty years and her education was minimal.  Susan had = graduated from=20 high school and taken a few college courses.  Susan was a=20 Astay-at-home@ = wife and=20 appellant was the Abreadwinner.@  At=20 the time of trial, Susan was still unemployed but had been seeking = employment since the separation in 2003.  In July 2003, River = Haven=20 Nursing Home hired Susan to work in the kitchen for $6.50 an hour, = but she=20 only worked there for approximately one week.  Susan = testified she=20 quit the job because she was physically unable to do the work. In = May=20 2003, Susan worked at Subway for a brief period of time, but she = was=20 subsequently laid off because of reductions in the staff.  = Susan=20 testified in the year 2003 she only made $200, and in the year = 2004 her=20 only income was the $32,000 from the sale of the properties.  = Other=20 than the property received during the divorce, Susan did not have = any=20 separate property to rely on.

In its=20 Findings of Fact, the trial court found spousal maintenance was = justified=20 because Susan lacked the financial resources and the ability to = meet her=20 needs independently.  The trial court found Susan lacked the=20 financial resources to independently meet her needs despite the = fact she=20 received community assets in the divorce.  The trial court = further=20 found Susan was eligible for maintenance because of her age, = employment=20 history, lack of earning ability, and her physical and emotional=20 condition.  The evidence demonstrates that because = Susan=3Ds earnings=20 since the time of separation were minimal, her lack of employment = skills=20 limits her to low income jobs, she has no separate property, and = her=20 monthly expenses are approximately $1,746, she definitely faces a = monthly=20 shortfall.  While Susan received a larger portion of the = community=20 property than appellant, the trial court could have reasonably = concluded=20 her funds would be exhausted before her earnings matched her = reasonable=20 minimum monthly expenses.  See Deltuva, 113 S.W.3d at = 888=20 (noting even though the wife was awarded the majority of the = marital=20 estate there was evidence to support the conclusion the = wife=3Ds living=20 expenses would significantly exceed her income); Trueheart, = 2003 WL=20 22176626, at *3 (holding an award of $290,000 of community = property was=20 not sufficient to meet wife=3Ds minimum=20 reasonable needs because over half of the award was not easily = liquidated=20 and the wife=3Ds income=20 generating potential was minimal).  Based on a review of the = record,=20 we cannot conclude the trial court=3Ds decision=20 to order appellant to pay spousal maintenance based on = Susan=3Ds=20 inability to meet her minimum reasonable needs was an abuse of=20 discretion. 

Next,=20 appellant argues the trial court abused its discretion in awarding = Susan=20 spousal maintenance because it did not consider the fact Susan = admitted to=20 three extramarital affairs during the marriage.  Once a court = determines a spouse is eligible for maintenance payments, section = 8.052 of=20 the Texas Family Code provides a non-exhaustive list of factors = the court=20 may consider in determining Athe=20 nature, amount, duration, and manner of periodic = payments.@ =20 Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex. = App.CSan=20 Antonio 2004, pet. denied) (citing Limbaugh v. Limbaugh, 71 = S.W.3d=20 1, 12B13 (Tex.=20 App.CWaco 2002,=20 no pet.); see Tex. Fam. Code Ann. ' = 8.052.  Included in this list of factors is any marital = misconduct of=20 the spouse seeking maintenance. Tex. Fam. Code Ann. = ' = 8.052(11).  However, the statute does not assign any weight = to any=20 particular factor.  See id. '8.052.=20  

It is=20 established in the record Susan committed adultery three times = during the=20 course of the marriage.  The trial court heard this testimony = and=20 stated on the record it was a Atie@ = between=20 the parties.  During Susan=3Ds=20 testimony regarding her adultery,  the court = stated:

THE=20 COURT:          I = remind you,=20 that that=3Ds a tie. =  He=3Ds had an = affair. =20 She=3Ds had an = affair.@

MR.=20 STOCKER:      Is that a question,=20 Judge?

THE COURT No.  = It=3Ds a = statement. =20 It=3Ds also an = encouragement to go=20 to another subject that=3Ds more relevant to = the Court=20 right now.

MR.=20 STOCKER:      Yes,=20 sir.      

Despite=20 the trial court=3Ds failure=20 to make a finding of fact regarding Susan=3Ds=20 adultery, based on Susan=3Ds=20 testimony and the judge=3Ds comment=20 during trial, we can infer the trial court took this information = into=20 consideration.  In addition, the Findings of Fact reflect the = trial=20 court took some of the other factors into consideration including = the=20 contribution of Susan as the homemaker, Susan=3Ds mental=20 and physical condition, appellant=3Ds separate=20 property, Susan=3Ds lack of=20 education and employment skills, and appellant=3Ds ability=20 to meet Susan=3Ds personal=20 needs.  Therefore, we cannot say the trial court abused its=20 discretion in determining the nature, amount, duration and manner = of=20 spousal maintenance.

Furthermore,=20 appellant only generally challenges the trial court=3Ds failure=20 to consider the extramarital affairs.  Appellant fails to=20 specifically raise a separate issue challenging the trial=20 court=3Ds failure=20 to enter additional findings of fact.[2] =20 On December 11, 2006, appellant requested additional findings of = fact and=20 conclusions of law from the court.  Within his request, = appellant=20 asked the trial court to make a finding of fact that Susan = admitted to=20 three extramarital affairs during the marriage.  The trial = court did=20 not respond to this request.  On appeal, however, appellant = does not=20 specifically argue the trial court=3Ds failure=20 to enter the additional findings of fact was error; therefore, he = has=20 waived any review of whether these findings should have been=20 entered.  See Tex. R. App. P. 38.1; Devine v. = Dallas=20 County, 130 S.W.3d 512, 513B14 (Tex.=20 App.CDallas=20 2004, no pet.) (holding appellant waived certain issues due to = inadequate=20 briefing).  Consequently, we overrule appellant=3Ds first=20 issue.

B.     =20 Did the Trial Court Err in Awarding Spousal Maintenance for an = Indefinite=20 Period of Time?

In his=20 second issue, appellant contends the trial court erred in awarding = Susan=20 spousal maintenance for an indefinite period of time.[3] =20 More specifically, appellant argues the evidence is legally and = factually=20 insufficient to prove Susan had an incapacitating physical or = mental=20 disability.[4]

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1.      =20 Standard of Review

When=20 reviewing whether a trial court abused its discretion by ordering = spousal=20 maintenance for an indefinite period of time, we use the same = standard as=20 discussed above.  We review the award of spousal maintenance = under an=20 abuse of discretion standard.  Pickens, 62 S.W.3d at=20 214.  A trial court abuses its discretion when it rules = arbitrarily,=20 unreasonably, without regard to guiding legal principles, or = without=20 supporting evidence.  Id.  There is no abuse of=20 discretion if some evidence of a substantive and probative nature = supports=20 the decision.  Dennis, 962 S.W.2d at 68.  Under = the abuse=20 of discretion standard, legal and factual sufficiency of the = evidence are=20 not independent grounds for asserting error; however, they are = relevant=20 factors in assessing whether the trial court abused its = discretion. =20 Pickens, 62 S.W.3d at 214.

2.      =20 Analysis =

The court=20 may only order spousal maintenance for a period longer than three = years if=20 the recipient spouse has an incapacitating physical or mental=20 disability.  Tex. Fam. Code Ann. ' = 8.054;=20 Pickens, 62 S.W.3d at 215.  Testimony on incapacity = need not=20 be limited to experts.  Pickens, 62 S.W.3d at = 215.  A=20 fact finder may reasonably infer incapacity from circumstantial = evidence=20 or the competent testimony of lay witnesses.  = Id.  The=20 question of the extent and duration of incapacity is an issue that = can be=20 answered by lay opinion and does not require medical = testimony. =20 Id. at 216. 

During=20 trial, Susan testified she had minimal brain damage which affected = both=20 her ability to learn and to secure employment.  Susan = testified she=20 attended special education classes starting in the second grade = until she=20 graduated from high school.  Susan also testified she had a=20 deteriorating disc in her lower back, her knees often hurt, she = suffered=20 from seizures, and she suffered from depression.  Susan = testified she=20 was on Nuerotin and Trileptal for her seizures and Zoloft and = Zocor for=20 her depression and cholesterol.  In addition, Susan testified = her=20 mental stress kept her from being able to work.  She = testified when=20 she became too stressed, she would lapse into a seizure.  = Susan did=20 admit during trial she had not seen a doctor regarding her back = pain since=20 approximately 1996 and she had not had a seizure since 2004.  = Also,=20 on direct examination by appellant=3Ds=20 attorney, Susan testified she did not think she was incapacitated, = and=20 when asked why she wanted alimony she stated AI feel=20 like I need it.@ =20 However, Susan later explained she thought Aincapacitated@ = meant=20 being wheelchair-bound.  Susan further testified her first = paying job=20 since separating from appellant was in the kitchen at the River = Haven=20 Nursing Home, but she quit after only one week because she = physically=20 could not perform the job.  She also briefly worked at = Subway, which=20 she was physically able to do, but was laid off due to cut backs = in the=20 staff.  Susan testified she volunteered at two different = places three=20 to four days a week.  She testified she could cook, clean, = and drive;=20 however, she stated her choices in employment were limited because = she=20 could not drive on freeways due to her inability to handle = stressful=20 situations.

Susan=3Ds mother,=20 Dottie King, testified Susan had limitations through her high = school=20 years, and she became stressed and frustrated if she had to = perform her=20 work too quickly or under pressure.  Dottie testified she = believed=20 Susan had incapacitating mental disabilities.  Dottie = admitted Susan=20 liked to work and wanted to work, but because of Susan=3Ds age,=20 disabilities, and lack of marketable skills, she believed Susan = could not=20 secure and maintain appropriate employment. 

Appellant=20 testified he believed Susan could support herself and did not = think she=20 was one-hundred percent helpless.  Appellant testified his = wife could=20 cook, clean, drive, and perform household chores.  Appellant, = however, admitted Susan attended special education classes through = high=20 school.  He also testified he was aware his wife had some = problems=20 with depression, that she took medications for some health = problems, and=20 that she was epileptic.

After=20 reviewing all the evidence, we conclude Susan presented some = evidence of a=20 substantive and probative nature to support the trial = court=3Ds finding=20 Susan has an incapacitating physical and mental disability.  = Although=20 appellant does point to some evidence which contravenes a finding = of=20 physical and mental disability, including his opinion Susan can = support=20 herself, the trial court=3Ds=20 ruling = is not so=20 against the great weight and preponderance of the evidence as to = be=20 clearly wrong and unjust. =20 Therefore, the trial court did not abuse its discretion by = awarding=20 spousal maintenance for an indefinite period of time.  = Accordingly,=20 we overrule appellant=3Ds second=20 issue.    

C.     =20 Is the Divorce Decree Voidable if it Provides for Spousal = Maintenance for=20 an Indefinite Period of Time Without Specifically Finding an=20 Incapacitating Physical or Mental = Disability?

In his=20 third issue, appellant argues the final divorce decree is = voidable. =20 Appellant argues when a court=3Ds action=20 is merely contrary to a rule or statute, the action is erroneous = or=20 voidable.  Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 = (Tex.=20 1990).(Br22) More specifically, appellant contends in this case = the=20 divorce decree is voidable because the court only implicitly found = Susan=20 suffered from an incapacitating physical or mental disability, and = therefore, the order is contrary to the Texas Family Code which = says a=20 court may not order maintenance that remains in effect for more = than three=20 years.  As discussed above, we do not agree with=20 appellant=3Ds=20 contention that the court only implicitly found Susan suffered = from an=20 incapacitating physical or mental disability.  We conclude = the trial=20 court did find Susan suffered from an incapacitating physical or = mental=20 disability in its Findings of Fact, and consequently, the divorce = decree=20 is not voidable.  We overrule appellant=3Ds third=20 issue.

D.     =20 Did the Trial Court Err in Awarding Susan a $6,569.60 Judgment for = Medical=20 Expenses Without Proof the Expenses Were Reasonable and=20 Necessary?

In his=20 fourth issue, appellant argues $6,569.60 of the $13,953.93 = judgment=20 awarded to Susan was improper.[5] =20 Appellant contends because Susan failed to comply with section = 18.001 of=20 the Texas Civil Practice and Remedies Code and did not prove her = expenses=20 through expert testimony, no evidence of reasonableness or = necessity=20 exists in the record.

1.=20 Standard of Review

When=20 reviewing a no evidence, or legal sufficiency, challenge, we = review the=20 evidence in the light most favorable to the challenged finding and = indulge=20 every reasonable inference that would support it.  = City of = Keller, 168 S.W.3d at 822.=20  We=20 credit favorable evidence if a reasonable fact finder could, and = disregard=20 contrary evidence unless a reasonable fact finder could not.  = Id. at 827.  The evidence is legally sufficient if it = would=20 enable fair-minded people to reach the verdict under review.  = Id. at 827.  The trier of fact is the sole = judge of the=20 witnesses=3D = credibility and the weight to be given their testimony.  = Id.=20 at 819.  This court cannot substitute our judgment for that = of the=20 jury, so long as the evidence falls within the zone of reasonable=20 disagreement.  Id. at 822.  But if the evidence = allows=20 only one inference, neither jurors nor the reviewing court may = disregard=20 it.  Id.   

 

 

2.      =20 Analysis

A claim=20 for past medical expenses must be supported by evidence that such = expenses=20 were reasonable and necessary as a result of the injury.  = Whitaker=20 v. Rose, 218 S.W.3d 216, 223 (Tex. App.CHouston=20 [14th Dist.] 2007, no pet.).  A proponent can prove = reasonableness=20 and necessity of past medical expenses through (1) expert = testimony on the=20 issues of reasonableness and necessity or (2) an affidavit = prepared and=20 filed in compliance with section 18.001 of the Texas Civil = Practice and=20 Remedies Code.  Id.; see Tex. Civ. Prac. & = Rem.=20 Code ' = 18.001=20 (Vernon 1997).  Proof of amounts charged or paid is not proof = of=20 reasonableness.  Jackson v. Gutierrez, 77 S.W.3d 898, = 902=20 (Tex. App.CHouston=20 [14th Dist.]  2002, no pet.) (citing Rodriguez-Narrea v.=20 Ridinger, 19 S.W.3d 531, 532 (Tex. App.CFort Worth=20 2000, no pet.)).

In this=20 case, the only evidence Susan introduced regarding her medical = expenses=20 was an exhibit which contained copies of her doctor bills and = prescription=20 receipts.  During trial, appellant objected to the = introduction of=20 the exhibit on the grounds of hearsay and improper = predicate.  In=20 response, the judge admitted the exhibit to prove Susan had = received=20 medical bills, but the judge stated he could not receive the = exhibit for=20 the truth of the bills and  he could not receive them as = proof the=20 expenses reflected in the exhibits were reasonable or = necessary. =20 Despite this, Susan failed to produce an affidavit in compliance = with=20 section 18.001 of the Texas Civil Practice and Remedies Code or = produce=20 expert testimony on the issue of reasonableness and = necessity. =20 Consequently, there is no evidence in the record of the = reasonableness or=20 necessity of the alleged medical expenses.

In=20 response to appellant=3Ds=20 argument, appellee makes three arguments.  First, she argues=20 appellant failed to specifically challenge the trial = court=3Ds finding=20 as to the expenses, therefore, the finding is binding on this = court. =20 The general rule is that an attack on the sufficiency of the = evidence must=20 be directed at specific findings of fact rather than at the = judgment as a=20 whole.  Halbert v. Kidd Jones Oil Co., No. = 07-04-0401-CV, 2005=20 WL 729039, at *3 (Tex. App.CAmarillo=20 March 30, 2005, pet. denied) (mem. op.).  The rule has often = been=20 stated that if the trial court=3Ds findings=20 of fact are not challenged by a point of error on appeal, they = are =20 binding upon the appellate court.  Id.  However, = a=20 challenge to an unidentified finding of fact may be sufficient for = review=20 if it is included in the argument of the issue or point, or if = after=20 giving consideration to the nature of the case, the underlying = applicable=20 legal theories, and the findings of fact provided, the specific = findings=20 of fact which the appellant challenges can be fairly determined = from the=20 argument.  Id. (citing Holley v. Watts, 629 = S.W.2d 694,=20 696 (Tex. 1982)).  In his brief, appellant argues no evidence = exists=20 to support a finding that the $6,569.60 judgment for medical = expenses was=20 reasonable and necessary.  Despite the fact appellant does = not=20 challenge the specific finding of fact which awarded Susan the = $6,569.60=20 judgment, appellant=3Ds=20 challenge can be determined from his argument.  Accordingly, = the=20 finding is not binding on this court.

Appellee=20 next argues appellant waived error on this complaint by failing to = pursue=20 his objection to an adverse ruling.  We disagree.  It is = true=20 appellant objected to the medical expenses exhibit, the trial = court=20 sustained the objection as to reasonable and necessary, and = appellant did=20 not further pursue an adverse ruling.  However, in this = appeal=20 appellant is not challenging the admission or exclusion of = evidence. =20 Instead, appellant is arguing there is Ano=20 evidence@ = in the=20 record to support a finding of reasonable and necessary.  = When=20 appealing from a non-jury trial, an appellant is not required to = preserve=20 allegations of legal insufficiency.  Renteria v. = Trevino, 79=20 S.W.3d 240, 241 (Tex. App.CHouston=20 [14th Dist.] 2002, no pet.).  Those claims may be raised for = the=20 first time on appeal.  Id. at 241-42.  = Accordingly,=20 appellant did not waive error on this = complaint.

Finally,=20 appellee argues because these medical expenses were awarded due to = appellant=3Ds=20 violation of the court=3Ds=20 temporary order, the trial court had the discretion to award such = expenses=20 to Susan without expert testimony or a medical record affidavit, = but=20 appellee offers no authority to support this contention.  The = law is=20 well established that to present an issue to this court, a=20 party=3Ds brief=20 shall contain, among other things, a clear and concise argument = for the=20 contention made with appropriate citations to authorities and the=20 record.  Tex. R. App. P. 38.1(h); see McIntyre v.=20 Wilson, 50 S.W.3d 674, 682 (Tex. App.CDallas=20 2001, pet. denied).  Since appellee failed to adequately = brief this=20 argument and our research reveals no such authority, we find her = argument=20 is without merit.  Accordingly, we sustain = appellant=3Ds fourth=20 issue. 

E.     =20 Did the Trial Court Err in Denying Appellant=3Ds Motion=20 for New Trial or Motion to Reform the Judgment?

In his=20 fifth issue, appellant claims the trial court erred by denying = his =20 motion for new trial or a motion to reform the judgment based on = newly=20 discovered evidence.[6] =20 More specifically, appellant argues the new evidence was so = material it=20 would probably produce a different result if a new trial were=20 granted.

1.      =20 Standard of Review

Whether a=20 motion for new trial based upon newly discovered evidence will be = granted=20 or refused is generally a matter within the sound discretion of = the trial=20 court.  Jackson v. Van Winkle, 660 S.W.2d 807, 809 = (Tex.=20 1983), overruled on other grounds, 121 S.W.3d 715 (Tex.=20 2003).  We will not disturb the decision on appeal absent an = abuse of=20 discretion.  Id.  In ruling on a motion for new = trial,=20 the trial court will consider the weight and the importance of the = new=20 evidence and its bearing upon the evidence received at = trial. =20 Id.  The question is whether the refusal of the trial = court to=20 grant a new trial was a manifest abuse of discretion or a = violation of a=20 clear legal right.  Id.  An appellate court will = indulge=20 every reasonable presumption in favor of the trial = court=3Ds refusal=20 to grant a new trial.  Id. at 809B10. =20

A party=20 seeking a new trial based on newly discovered evidence must show (1) the evidence has come to = his=20 knowledge since trial; (2) the failure to discover the evidence = before=20 trial was not due to lack of diligence; (3) the new evidence is = not=20 cumulative; and (4) the new evidence is so material that it would = probably=20 produce a different result if a new trial were granted.  = Id.=20 at 809.

2.      =20 Analysis

Appellant=20 filed a motion for new trial or to reform the judgment based on = newly=20 discovered evidence on September 26, 2006, and the trial court=20 subsequently held a hearing. During the hearing, appellant = testified he=20 spoke with Susan in August 2006 and she informed him she had been = working=20 at TJ Max since November 2005.  Appellant testified Susan = told him=20 she was classified as a full-time employee and trained other=20 employees. 

Susan=20 testified she was employed at TJ Max as a fitting room attendant = and had=20 been working there since November 2005.  When Susan was hired = in=20 November 2005 she was making $7.00 per hour and working = twenty-five hours=20 per week.  At the time of trial, Susan was making $7.25 per = hour and=20 working thirty hours per week, which is the maximum number of = hours TJ Max=20 allows.  Susan testified she never worked full-time for TJ = Max and=20 did not train employees, although occasionally she would show a = new=20 employee what to do in the fitting room.  Susan testified on=20 cross-examination she did not want to work more than thirty hours = even if=20 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=20 her stress level.  In addition, Susan testified she had only = missed=20 work one time since she began.

After=20 hearing all the evidence, the trial court denied the motion for = new trial=20 and the motion to reform judgment.  Appellant argues on = appeal he=20 meets the four part test required for a new trial.  Appellant = argues=20 he had no knowledge of this new evidence during trial since it = occurred in=20 November 2005, he could not have procured it prior to trial as it = did not=20 exist, the evidence is not merely cumulative and does not tend = only to=20 impeach, and the evidence would probably produce a different = result if a=20 new trial were granted. 

The record=20 does not reflect why the trial court denied the motion for new=20 trial.  Regardless of the ground on which the trial court = based its=20 decision, the trial court did not abuse its discretion.  = Based on the=20 record, there was sufficient evidence for the trial court to = decide,=20 despite Susan=3Ds new=20 monthly income, she still could not meet her minimum reasonable=20 needs.  A spouse=3Ds mere=20 employment does not preclude an award of spousal = maintenance. =20 Trueheart, 2003 WL 22176626, at *3 (citing In re = Marriage of=20 Hale, 975 S.W.2d 694, 698 (Tex. App.CTexarkana=20 1998, no pet.)); see In re Gonzalez, No. 07-05-0205-CV, = 2006 WL=20 3102303, at *4 (Tex. App.CAmarillo=20 Nov. 2, 2006, no pet.) (mem. op.) (rejecting husband=3Ds=20 contention that his wife=3Ds gainful=20 employment during their separation before divorce precluded an = award of=20 spousal maintenance).  The trial court could = reasonably have=20 decided Susan=3Ds monthly=20 income from TJ Max, which would be approximately $870 before = taxes, was=20 still insufficient to meet her minimum needs considering her prior = testimony that her monthly expenses totaled at least $1,700 per=20 month.  Furthermore, there was sufficient evidence for the = trial=20 court to decide Susan was still mentally or physically = incapacitated and,=20 therefore, still eligible for maintenance indefinitely.  = Along with=20 the testimony during the original trial, Susan testified at the = motion for=20 new trial hearing she was unable to work more than thirty hours = per week=20 due to her conditions.  We cannot say the trial = court=3Ds refusal=20 to grant the new trial or reform the judgment was a manifest abuse = of=20 discretion or a violation of a clear legal right.  = Accordingly, we=20 overrule appellant=3Ds fifth=20 issue.

 

 

Conclusion

We affirm=20 the trial court=3Ds grant of=20 spousal maintenance for an indefinite period of time, and we = affirm the=20 trial court=3Ds denial=20 of a motion for new trial or to reform the judgment.  We = overrule=20 appellant=3Ds argument=20 that the divorce decree is contrary to the Texas Family Code and = therefore=20 voidable.  We sustain appellant=3Ds argument=20 regarding the medical expenses and, therefore, reverse the = $6,569.60=20 portion of the trial court=3Ds judgment=20 against appellant representing medical expenses incurred by Susan = and=20 remand for a new trial to determine whether the expenses were = reasonable=20 and necessary.      

 

 

 

/s/     =20 John S.=20 = Anderson           = ;            =             &= nbsp;           &n= bsp;       =20 =             &= nbsp;           &n= bsp;   =20 Justice

 

 

 

Judgment=20 rendered and Memorandum Opinion filed November 13, = 2007.

Panel consists of = Chief=20 Justice Hedges and Justices Anderson and Seymore.


[1]  While the trial court found = certain=20 community liabilities existed, it did not specify in either the = Final=20 Divorce Decree or the Findings of Fact which party was liable for = the=20 debt.

[2]  In his brief, appellant = states: =20 AAppellee Susan Dunaway admits to having = three=20 affairs during the marriage.  Yet the Court, in its Findings = of Fact=20 regarding the issue of spousal maintenance, does not even mention = the=20 three affairs Appellee admitted.  Appellant[=3Ds] requests for additional findings of = fact were=20 ignored by the Court.@   

[3]  Appellant breaks down his second = issue into=20 three sub-issues: (1) the evidence is legally and factually = insufficient=20 to show Susan has an alleged incapacitating mental disability, (2) = the=20 evidence is legally and factually insufficient to show Susan has = an=20 alleged incapacitating physical disability, and (3) the evidence = is=20 legally and factually insufficient to show Susan=3Ds alleged physical or mental = disabilities caused=20 her to be incapacitated.  We find the sub-issues are similar = enough=20 to address together.    

[4]  Within this issue, appellant also = argues=20 the trial court only implicitly found Susan had an incapacitating = physical=20 or mental disability.  Appellant argues the trial = court=3Ds Findings of Fact do not include a = specific=20 finding that Susan had an incapacitating mental or physical=20 disability.  We disagree with this contention.  In the=20 court=3Ds Finding of Fact number 5, it states = A[t]he court finds that during the = marriage MAVIS=20 CLIFTON DUNAWAY was the primary wage-earner and by agreement of = the=20 parties, SUSAN DAWN DUNAWAY, was a Astay-at-home@ wife with certain known mental and to = some extent=20 physical limitations/disabilities.@  The court also states in Finding = of Fact=20 number 12 Susan was eligible to receive maintenance based on = direct=20 testimony from her mother regarding her mental disabilities and=20 Susan=3Ds physical and emotional = condition. =20 Furthermore, the court=3Ds explanation for awarding a = disproportionate=20 division of the estate in Finding of Fact number 11 states Susan = suffered=20 mental disabilities resulting from brain damage at birth and = certain=20 physical disabilities limited her ability to maintain gainful=20 employment.  In its Conclusion of Law number 11 the court = concludes=20 Athat if a spouse seeking maintenance is = unable to=20 support himself or herself through appropriate employment because = of an=20 incapacitating physical or mental disability, the court may order=20 maintenance for an indefinite period for as long as the disability = continues.@  Based on these findings, we do = not agree=20 with appellant that the trial court only implicitly found an=20 incapacitating mental or physical disability.

[5]  This was the = portion of the=20 judgment awarded to Susan for medical costs incurred after = appellant=20 cancelled health insurance in violation of the court=3Ds temporary = orders. =20

[6]  In his motion for new trial, = appellant also=20 argued a new trial was warranted because (1) the evidence at trial = failed=20 to support a finding of physical or mental disability; (2) Susan = admitted=20 to three affairs during the marriage; (3) Susan offered no medical = records=20 or medical testimony to support her claim of mental = incapacitation; and=20 (4) the court failed to appoint an attorney ad litem to represent=20 Susan.  On appeal, however, appellant failed to brief any of = these=20 issues as they relate to the motion for new trial and only raises = the=20 newly discovered evidence issue.  We, therefore, find all of = the=20 other issues relating to the motion for new trial have been waived = and the=20 only issue before us is whether the trial court erred by denying = the=20 motion for new trial based on newly discovered evidence.  = See=20 Tex. R. App. P. 38.1; McIntyre, 50 S.W.3d at 682.=20

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