Jose F. Diaz v. Liliana M. Diaz

• Court: Court of Appeals of Texas
• Decided: June 22, 2011
• Docket: 04-10-00304-CV
• Status: Published

Opinion

OPINION No. 04-10-00304-CV

Jose F. DIAZ, Appellant

v.

Liliana M. DIAZ, Appellee

From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-00985 Honorable Peter A. Sakai, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: June 22, 2011

AFFIRMED AS REFORMED

In conjunction with the en banc court’s denial of appellant’s motion for rehearing en

banc, the panel, on its own motion, withdraws its prior opinion and judgment. The panel

substitutes a new opinion and judgment to clarify our analysis with regard to the trial court’s

award of a judgment for an expert witness fee.

Jose F. Diaz appeals the portions of a divorce decree awarding Liliana M. Diaz spousal

maintenance and a judgment of $3,750 for an expert witness fee. We reform the trial court’s 04-10-00304-CV

judgment to reduce the expert witness fee award to $3,037.50 and affirm the judgment as

reformed.

SPOUSAL MAINTENANCE

We review an award of spousal maintenance under an abuse of discretion standard.

Chafino v. Chafino, 228 S.W.3d 467, 474 (Tex. App.—El Paso 2007, no pet.); Sheshtawy v.

Sheshtawy, 150 S.W.3d 772, 777 (Tex. App.—San Antonio 2004, pet. denied). Under the abuse

of discretion standard, legal and factual sufficiency of the evidence are not independent grounds

for asserting error, but they are relevant factors in assessing whether the trial court abused its

discretion. Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex. App.—Fort Worth 2008, pet. denied).

The trial court does not abuse its discretion, however, 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.); Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.—Corpus Christi 2002, no pet.).

Jose contends the trial court abused its discretion in the instant case because the evidence

was insufficient to establish that Liliana lacked sufficient property to provide for her minimum

reasonable needs. Jose also contends that Liliana failed to present sufficient evidence to

establish her earning ability in the labor market.

We begin with the statutory presumption that spousal maintenance is not warranted

unless the spouse seeking maintenance has exercised diligence in: (1) seeking suitable

employment; or (2) developing the necessary skills to become self-supporting during a period of

separation and during the time the suit for dissolution of the marriage is pending. TEX. FAM.

CODE ANN. § 8.053(a) (West 2006). Jose and Liliana were married on July 20, 1991, and

separated on August 1, 2008. Jose and Liliana have three children who were sixteen, fifteen, and

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eleven years old, respectively, at the time of the separation. Liliana was given the right to

designate the primary residence of the children. Liliana required an interpreter at trial because

she does not speak English. Evidence was introduced establishing that Liliana runs a janitorial

business. During 2008, the business had gross receipts of almost $50,000 and a net income of

$19,460. The evidence further showed that services were provided for at least seven clients in

2008. The trial court found Liliana was developing the necessary skills to become self-

supporting during the period of separation and during the time the suit for dissolution was

pending. Based on the evidence presented, we hold that the trial court did not abuse its

discretion in concluding that Liliana had overcome the presumption against spousal maintenance.

Pursuant to section 8.051(2)(C) of the Texas Family Code, a trial court may award

spousal maintenance where the duration of a marriage was 10 years or longer and the spouse

seeking maintenance: (1) lacks sufficient property, including property awarded to the spouse in

the divorce proceedings, to provide for the spouse’s minimum reasonable needs; and (2) clearly

lacks earning ability in the labor market adequate to provide support for the spouse’s minimum

reasonable needs. TEX. FAM. CODE ANN. § 8.051(2)(C) (West 2006). The term “minimum

reasonable needs” is not defined in the Family Code. Therefore, determining what the

“minimum reasonable needs” are for a particular individual is a fact-specific determination

which must be made by the trial court on a case-by-case basis. Chafino, 228 S.W.3d at 475;

Amos, 79 S.W.3d at 749. While a list of expenses is helpful, such a list is not the only evidence

upon which a trial court can determine a person’s “minimum reasonable needs.” Truehart v.

Truehart, No. 14-02-01256-CV, 2003 WL 22176626, at *2 (Tex. App.—Houston [14th Dist.]

Sept. 23, 2003, no pet.) (mem. op.).

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The only significant assets awarded to Liliana during the divorce proceedings were the

house and two cars; however, Liliana was also ordered to pay the mortgage on the home and the

balance due on the notes payable on the cars. The evidence established that Liliana would be

required to pay approximately $9,300 in annual home mortgage interest. The evidence further

established that Liliana would be required to pay approximately $1,000 each year for

homeowner’s insurance, and approximately $3,000 in property taxes. Just considering these

expenses, Liliana would be required to pay $13,300 annually. As previously noted, the evidence

established that the annual net income Liliana was receiving at the time of the divorce was the

net income from her business of $19,460. Deducting just the annual expenses for mortgage

interest, homeowner’s insurance, and property taxes, Liliana would have approximately only

$6,000 a year or approximately $500 per month to pay all other household expenses, including

the payments and insurance on the two cars. Based on the evidence presented, the trial court did

not abuse its discretion in determining that Liliana lacks sufficient property, including property

awarded to her in the divorce proceedings, to provide for her minimum reasonable needs.

With regard to Liliana’s earning ability in the labor market, Liliana does not speak

English. See Alaghehband v. Abolbaghaei, No. 03-02-00445-CV, 2003 WL 1986777 (Tex.

App.—Austin May 1, 2003, no pet.) (referring to spouse only recently learning to speak English

as evidence of spouse’s lack of earning ability) (mem. op.). In addition, Liliana’s work schedule

must allow her to care for her three children. See id. In his brief, Jose contends Liliana did not

prove her lack of earning ability because she presented no evidence that she had attempted to

look for employment. To the contrary, the record established that Liliana was employed by

running a janitorial business; however, the business at that time was only producing a net income

of approximately $19,000. Given Liliana’s inability to speak English and the status of her

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janitorial business, the trial court did not abuse its discretion in determining that Liliana clearly

lacked earning ability in the labor market adequate to provide support for her minimum

reasonable needs at the current time. The trial court could have believed that the three years of

spousal support would provide Liliana the opportunity to learn English and to grow her janitorial

business such that her earning ability in the future could be adequate to support her minimum

reasonable needs.

Jose’s first issue is overruled.

EXPERT WITNESS FEE

In his second issue, Jose contends the trial court abused its discretion in awarding Liliana

an expert witness fee as court costs. The divorce decree awards Liliana a judgment of $3,750 as

costs of court. From the record, it is readily apparent that the $3,750 is for the expense Liliana

incurred in retaining an expert to value the business which was awarded to Jose as part of the

property division.

Jose cites TEX. R. CIV. P. 131 and TEX. R. CIV. P. 141 as the basis for his complaint and

contends that Liliana was required to show “good cause” in order to obtain an award for costs.

The opinions cited by Jose as support for his contention, however, are in contexts other than the

family law context and to which Rule 131 and Rule 141 of the Texas Rules of Civil Procedure

apply. See Richards v. Mena, 907 S.W.2d 566, 571 (Tex. App.—Corpus Christi 1995, writ

dism’d); Whitley v. King, 581 S.W.2d 541, 544 (Tex. Civ. App.—Fort Worth 1979, no writ).

The expert witness fee awarded by the trial court in this case is governed by the Texas Family

Code. See TEX. FAM. CODE ANN. § 6.708 (West 2006); TEX. FAM. CODE ANN. §§ 106.001,

106.002 (West 2008); see also Neal v. Kunianksy, No. 01-05-00368-CV, 2006 WL 1493735, at

*3 n.2 (Tex. App.—Houston [1st Dist.] June 1, 2006, no pet.) (noting suit for divorce in which

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the parties are parents of minor children necessarily includes a suit affecting the parent-child

relationship) (mem. op.); Capellen v. Capellen, 888 S.W.2d 539, 545 (Tex. App.—El Paso 1994,

writ denied) (same). The provisions of the Family Code with respect to attorney’s fees and costs

were intended to supplant the Texas Rules of Civil Procedure. Casteel-Diebolt v. Diebolt, 912

S.W.2d 302, 305 (Tex. App.—Houston [14th Dist.] 1995, no writ). In recognition of the unique

posture of family law cases, the Legislature even amended the Family Code in 1981 to eliminate

a prior reference requiring costs to be assessed “as in other civil cases.” See Billeaud v. Billeaud,

697 S.W.2d 652, 655 (Tex. App.—Houston [1st Dist.] 1985, no writ). We acknowledge that

Rule 141 of the Texas Rules of Civil Procedure requires a trial court to make a “good cause”

finding before adjudging costs “otherwise than as provided by law or these rules” or “other than

those customarily taxed.” TEX. R. CIV. P. 141; Headington Oil Co., L.P. v. White, 287 S.W.3d

204, 212-13 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (reversing award of the cost of

expert witness fees because trial court’s findings failed to demonstrate good cause). Trial courts

in the family law context, however, are not bound by this “good cause” requirement. See Young

v. Young, 168 S.W.3d 276, 287 (Tex. App.—Dallas 2005, no pet.) (noting trial court has

discretion to award costs under section 6.708 of the Texas Family Code regardless of the

applicability of Rule 131); Billeaud, 697 S.W.2d at 655 (noting good cause requirement not

applicable in family law cases).

Focusing our attention on the family law context, we must be mindful of the nature of the

underlying proceeding. As previously noted, a suit for divorce in which the parties are parents of

minor children necessarily includes a suit affecting the parent-child relationship (“SAPCR”).

Neal, 2006 WL 1493735, at *3 n.2; Capellen, 888 S.W.2d at 545. In a cause involving both a

divorce proceeding and a SAPCR, a trial court has broad discretion in awarding attorney’s fees,

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expenses and costs under sections 6.708, 106.001, and 106.002 of the Family Code. Bruni v.

Bruni, 924 S.W.2d 366, 368 (Tex. 1996); Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.—Dallas

2005, no pet.). Under an abuse of discretion standard, we will not reverse the trial court’s

judgment if the trial court reaches a correct result even for a wrong reason. Chenault v. Banks,

296 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Luxenberg v. Marshall,

835 S.W.2d 136, 141-42 (Tex. App.—Dallas 1992, orig. proceeding).

At least one opinion supports Liliana’s contention that the trial court had the discretion to

award her the expert witness fee as costs under section 6.708. See Farley v. Farley, 930 S.W.2d

208, 213-14 (Tex. App.—Eastland 1996, no writ); cf. Headington Oil Co., L.P., 287 S.W.3d at

212-13 (suggesting expert witness fees could be awarded as costs under Rule 141 if the record

supported a finding of good cause). The Eastland court’s holding, however, appears to blur the

traditional distinction between expenses and costs of court. Moreover, this court is not required

to rely on section 6.708 as support for the trial court’s award in the instant case. Because the

underlying cause involved both a divorce proceeding and a SAPCR, section 106.002 expressly

authorized the trial court to award Liliana her expenses. See TEX. FAM. CODE ANN. § 106.002(a)

(West 2008). Although the trial court awards a judgment for the expert witness fee as costs, the

trial court could correctly have awarded the fee as an expense; therefore, even if such an award

was not permissible as an award of costs, the trial court reached a correct result in awarding a

judgment for the expert witness fee even if it did so for a wrong reason. 1 Accordingly, the trial

1 We further note the trial court also had the discretion to apportion the expert witness fee as part of the just and right division of property. See Henry v. Henry, 48 S.W.3d 468, 480 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Capallen, 888 S.W.2d at 544.

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court did not abuse its discretion in awarding Liliana a judgment for the expert witness fee. 2 See

id.; see also Chenault, 296 S.W.3d at 190; Luxenberg, 835 S.W.2d at 141-42.

Jose also asserts that the testimony was insufficient to support an award of $3,750, and

the testimony regarding the expense was speculative and conclusory. Initially, we note that a

copy of the business valuation report was introduced into evidence, and the trial court heard the

expert’s testimony regarding the report, including testimony about the expert’s qualifications and

the nature of the work he performed. The trial court could consider this evidence in considering

the amount to be awarded for the expert’s services. Liliana’s attorney testified that the amount

of the expense paid to the expert was $3,037.50. Therefore, although the award of the expert

witness fee to Liliana was within the trial court’s discretion, the award exceeded the stated

amount of the expense. Accordingly, the judgment is reformed to award $3,037.50 to Liliana for

the expert witness fee. See Sims v. Sims, No. 08-02-00038-CV, 2003 WL 22025907, at *4 (Tex.

App.—El Paso Aug. 29, 2003, no pet.) (reforming judgment where trial court increased

attorney’s fees based on matters not appearing in the record) (mem. op.); Carson v. Carson, 528

S.W.2d 308, 309 (Tex. App.—Waco 1975, no writ) (reforming judgment to limit attorney’s fee

award to amount party agreed to pay attorney).

CONCLUSION

The judgment of the trial court is reformed to reduce the award for the expert witness fee

from $3,750 to $3,037.50. The trial court’s judgment is affirmed as reformed.

Catherine Stone, Chief Justice

2 Although we hold the trial court did not abuse its discretion in awarding Liliana a judgment for the expert witness fee, we would encourage trial courts in the family law context to be precise in granting an award for such an expense in future cases, taking care to avoid blurring the traditional distinction between expenses and court costs.

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