Dudley Pettry v. Donnie Pettry--Appeal from 1st District Court of Jasper County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-04-113 CV
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DUDLEY PETTRY, Appellant
V.
DONNIE PETTRY, Appellee
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 24398
MEMORANDUM OPINION

Dudley Pettry appeals the trial court's Final Decree of Divorce on the sole ground that there is no evidence, or in the alternative, insufficient evidence, to support the award of spousal maintenance. The record reflects the trial court ordered Dudley to pay a "[m]onthly premium of $225.00 per month for a term of 3 years for Donnie Pettry's health insurance coverage available through COBRA." We agree with Dudley that this provision constitutes spousal maintenance. The Family Code defines spousal maintenance as "an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse." Tex. Fam. Code Ann. 8.001(1) (Vernon Supp. 2004). Dudley's maintenance of Donnie's medical insurance falls within that definition. See Espeche v. Ritzell, 123 S.W.3d 657, 666 (Tex. App.--Houston [14th Dist.] 2003, pet. denied).

Dudley first argues there is no evidence Donnie clearly lacks the earning ability to provide support for her minimum reasonable needs, as limited by section 8.054. Section 8.054(a)(2) provides that a court "shall limit the duration of a maintenance 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 . . ." However, it goes on to state "unless the ability of the spouse to provide for the spouse's minimum reasonable needs through employment is substantially or totally diminished because of: (A) physical or mental disability. . ." Tex. Fam. Code Ann. 8.054(a)(2)(A) (Vernon Supp. 2004).

Dudley further argues Donnie has failed to rebut the presumption of section 8.053 that "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)(1)(2) (Vernon Supp. 2004). Subsection (b) provides: "This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because of an incapacitating physical or mental disability." Tex. Fam. Code Ann. 8.053(b) (Vernon Supp. 2004).

Evidence was presented that Donnie lacked sufficient property, including the property distributed, to provide for her minimum reasonable needs after the divorce. Evidence was presented that Donnie had a long history of knee problems due to a meniscus tear in her knee which caused her to be unable to work and for which she had been receiving treatment. At the time of trial, Donnie's knee still required surgery and testimony was given as to the need for surgery and the duration of recovery after surgery. Further, Donnie is currently being treated for breast cancer and will need future surgery. There was testimony that due to illness and the divorce, Donnie has had a near nervous breakdown and undergone a psychological evaluation.

Dudley's brief ignores this evidence and fails to address the exception for physical disability set forth in sections 8.054(a)(2)(A) and 8.053(b). There is no argument that the evidence adduced at trial cannot support a finding by the trial court that spousal maintenance was proper because of physical disability. See Carlin v. Carlin, 92 S.W.3d 902, 905 (Tex. App.--Beaumont 2002, no pet.). Dudley has not demonstrated the trial court abused its discretion. See Stone v. Stone, 119 S.W.3d 866, 868 (Tex. App.--Eastland 2003, no pet.). Point of error one is overruled.

The judgment of the trial court is AFFIRMED.

 

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DON BURGESS

Justice

 

Submitted on July 2, 2004

Opinion Delivered August 26, 2004

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.