Michele Tyler f/k/a Michele Talburt v. Eddie D. Talburt--Appeal from 285th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-02-00245-CV
Michele TYLER,
Appellant
v.
Eddie D. TALBURT,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 1995-CI-18341
Honorable Martha Tanner, Judge Presiding (1)

Opinion by: Karen Angelini, Justice

Concurring opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 30, 2003

I agree that the applicable standard for reviewing a trial court's ruling on a motion to modify spousal maintenance or support is abuse of discretion. However, I disagree with the implication that it is appropriate for this court to "divorce" traditional sufficiency standards from this review. The relevancy of traditional sufficiency review as a factor in assessing whether an abuse of discretion has occurred has been noted in cases involving an award of spousal maintenance, a modification of spousal maintenance, and, similarly, an award or modification of child support. See, e.g., In re L.R.P., 98 S.W.3d 312 (Tex. App.--Houston [1st Dist.] 2003, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex. App.--Houston [14th Dist.] 2002, no pet.); Carlin v. Carlin, 92 S.W.3d 902, 905 (Tex. App.--Beaumont 2002, no pet.); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.--Fort Worth 2002, pet. denied); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex. App.--Dallas 2001, pet. denied); Norris v. Norris, 56 S.W.3d 333, 338-39 (Tex. App.--El Paso 2001, no pet.). Accordingly, I disagree with "divorcing" sufficiency review from our analysis and would instead consider the sufficiency of the evidence as a factor in determining whether the trial court abused its discretion.

I am also confused by the majority's conclusion that the trial court was "authorized" to make certain findings. I understand that similar language was used in the majority opinion in In re K.T. 2003 WL 1090593, at *9; however, I am uncertain what the term "authorized" means in applying an abuse of discretion standard. I assume that a trial court would not be "authorized" to make a finding if the evidence was not sufficient to support the finding, leading us back to the reason sufficiency of the evidence is a "relevant consideration" in determining whether a trial court has abused its discretion. Because the evidence was sufficient to support a finding that Talburt is still suffering from an incapacitating physical disability, is still unable to support himself through appropriate employment, and still does not have sufficient property to provide for his minimum reasonable needs, I concur in the judgment.

Alma L. L pez, Chief Justice

1. The Honorable Martha Tanner presided over the hearing on the motion to modify spousal maintenance. The Honorable David Peeples signed the judgment from which Tyler appeals.