in the Matter of the Marriage of Andy Malley and Julie Malley and in the Interest of Matthew Steven Malley and Randall Lee Malley, Minor Children

• Court: Court of Appeals of Texas
• Decided: February 10, 2006
• Docket: 06-05-00133-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00133-CV

 

IN THE MATTER OF THE MARRIAGE OF

ANDY MALLEY AND JULIE MALLEY

AND IN THE INTEREST OF

MATTHEW STEVEN MALLEY AND

RANDALL LEE MALLEY, MINOR CHILDREN

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On Appeal from the Fifth Judicial District Court

Cass County, Texas

Trial Court No. 05-D-016

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            On November 23, 2005, Andy Malley appealed the trial court's judgment granting a final decree of divorce. That same day, we instructed Malley to complete and file a docketing statement with this Court by Thursday, December 8, 2005, along with a $125.00 filing fee. By January 11, 2006, we had not received Malley's docketing statement, the filing fee, nor any contact from Malley regarding this appeal. We therefore informed Malley that, if he made no further effort to pursue this appeal within ten days, his appeal would be subject to dismissal for want of prosecution as provided by Rule 42.3 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.3.

            Nearly thirty days have passed since we last wrote Malley. He has not contacted this Court, and has neither paid the filing fee nor submitted a docketing statement. Accordingly, pursuant to the authority provided by Rule 42.3 of the Texas Rules of Appellate Procedure, we dismiss the appeal for want of prosecution.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice 

Date Submitted:          February 9, 2006

Date Decided:             February 10, 2006

imes New Roman"> (7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as a homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Tex. Fam. Code Ann. § 8.052 (Vernon Supp. 2003).

We review the trial court's decision to award spousal maintenance under an abuse of discretion standard. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.-Texarkana 1998, no pet.); Dubois v. Dubois, 956 S.W.2d 607, 610 (Tex. App.-Tyler 1997, no pet.). The trial court abuses its discretion when it acts arbitrarily or unreasonably, or without any reference to guiding rules and principles. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). 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 Bertram, 981 S.W.2d 820, 826-27 (Tex. App.-Texarkana 1998, no pet.). Absent a clear abuse of discretion, we do not disturb the trial court's decision to award spousal maintenance. Hale, 975 S.W.2d at 697. Deciding the minimum reasonable needs for a particular individual is a fact-specific determination that should be made by the trial court on a case-by-case basis. See id.

Leo argues that the maintenance order is proper and set at the maximum amount allowed by statute. Section 8.055 of the Texas Family Code states : "(a) A court may not order maintenance that requires an obligor to pay monthly more than the lesser of: (1) $2,500; or (2) 20 percent of the spouses's average monthly gross income." Tex. Fam. Code Ann. § 8.055 (Vernon Supp. 2003). The evidence concerning income was that the tire business grossed $6,000.00 per month. Leo testified that the"profit" was one-fourth of that amount, or $1,500.00, per month. The Texas Family Code recognizes that income from self-employment must be treated differently than the income of a wage earner. In reference to child support, income from self-employment is defined to include all benefits "less ordinary and necessary expenses required to produce that income." Tex. Fam. Code Ann. § 154.065 (Vernon 2002). The court is allowed to exclude business expenses shown by the evidence as inappropriate. Tex. Fam. Code Ann. § 154.065(b). The only evidence in this record of Leo's current income is as stated above and the tax returns. Even though Marie worked in the business, she did not controvert the amounts as presented by Leo or present any evidence of inappropriate business expenses. Although this evidence of Leo's income comes from him, it was of a nature that could have been contradicted at least to some extent, either directly or indirectly, if untrue. Dubois, 956 S.W.2d at 611. We cannot disregard Leo's unchallenged evidence regarding his income. Ex parte Gonzales, 414 S.W.2d 656 (Tex. 1967). The only other income evidence consisted of tax returns that reflected even less income. Based on the evidence, the maximum spousal support authorized was $300.00 per month (twenty percent of $1,500.00); therefore, the trial court did not abuse its discretion in setting the amount of spousal maintenance.

The trial court limited the spousal maintenance to twenty-four months, even though the maximum duration of such an order is three years. Tex. Fam. Code Ann. § 8.054. However, the statute requires a court to limit the duration of such order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse's minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill. Tex. Fam. Code Ann. § 8.054(2). Marie expressed that she had some health problems, but did not contend she had a physical or mental disability. She is forty-eight years of age and has some experience working in the tire business with her husband. She acknowledged she had not sought employment for fourteen to fifteen months before the divorce hearing.

In examining the factors to consider as set out in Section 8.052 in ordering spousal maintenance, the following factors appear to favor Marie: (1) & (7) financial resources of spouse seeking maintenance and the comparative financial resources of the spouse, (3) duration of marriage, (4) employment history and earning ability of spouse seeking maintenance, (5) ability of spouse to provide support, and (10) contributions as homemaker.

The following factor favors Leo: (12) efforts of the spouse seeking maintenance to pursue available employment counseling. Other factors are essentially neutral: (2) education and employment skills of spouse; (6) acts by either of abnormal expenditures or fraudulent disposition of property, (8) contribution by one spouse to the education, training, or increased earning power of the other, (9) property brought into marriage, and (11) marital misconduct.

The trial court awarded Marie the maximum spousal maintenance amount based on the evidence of income for two-thirds of the maximum duration authorized by law. We do not find such determination an abuse of discretion.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: September 2, 2003

Date Decided: September 3, 2003