Appellate Practice 101: No Judgment - No Appeal to Challenge the Judgment

No football without football - no domestication of foreign judgment without foreign judgment. It should not take an appellate court to state the obvious. Justice Frost goes to the trouble of writing opinion and also uses occasion to reiterate that extraneous materials not appearing in the record may not be attached to appellate briefs.

Resource Health Services, Inc. v. Acucare Health Strategies, Inc, No. (Tex. App.- Houston [14th Dist.] Nov. 29, 2007)(Opinion by Justice Frost)(restricted appeal from domestication of foreign judgment, jurisdictional dismissal)(Before Justices Anderson, Fowler and Frost)
Appeal from 269th District Court of Harris County
Trial court judge: Hon. John Thomas Wooldridge

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

In this restricted appeal, a judgment debtor attempts to appeal the trial court's judgment in a proceeding under the Uniform Enforcement of Foreign Judgments Act. Because there is no judgment in the trial court from which appeal may be taken, this court lacks appellate jurisdiction. Accordingly, we dismiss this appeal.

Appellee Acucare Health Strategies, Inc. ("Acucare") obtained a judgment against appellant Resource Health Services, Inc. ("Resource") in a Virginia district court. Acucare then filed an affidavit in the trial court below seeking to enforce the Virginia judgment in Texas under the Uniform Enforcement of Foreign Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. '35.001, et seq. (Vernon 1997). If a judgment creditor follows all the procedures of the Uniform Act, the foreign judgment becomes a Texas judgment in the court in which it is filed. See Tex. Civ. Prac. & Rem. Code Ann. '35.003; Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 483 (Tex. App.- Houston [14th Dist.] 2004, pet. denied) (stating that, if a judgment creditor follows the procedures of the Uniform Act for filing a foreign judgment, "[t]he judgment [becomes] enforceable as a Texas judgment on the date it was filed").

Under the Uniform Act, the judgment creditor must file an authenticated copy of the foreign judgment as well as an affidavit. See Tex. Civ. Prac. & Rem. Code Ann. '' 35.003, 35.004. The appellate record shows that Acucare filed an affidavit but that it did not file any judgment in the trial court. Although the affidavit states that the Virginia judgment is attached, there is no judgment attached to the affidavit in our record, and the district clerk has confirmed that there is no judgment in the trial court's file. Although the affidavit purports to describe the judgment, the affidavit is not a judgment, and this court cannot treat the affidavit as if it were a judgment. See Hamilton v. Empire Gas & Fuel Co., 110 S.W.2d 561, 566 (Tex. 1937) (holding that judgments must be in the trial court's record to be effective and that affidavits cannot be accepted as a substitute for a such a judgment).

Furthermore, Acucare has not satisfied the Uniform Act's requirement that an authenticated copy of the judgment be filed. Therefore, there is no Texas judgment under the Uniform Act. See Tex. Civ. Prac. & Rem. Code Ann. '35.003; Mindis Metals, Inc., 132 S.W.3d at 483.

Because there is no judgment in the trial court from which Resource can appeal, this court must dismiss for lack of appellate jurisdiction.[1] See Ulmer v. Ulmer, 130 S.W.3d 294, 296 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (en banc) (stating that courts of appeals have appellate jurisdiction only over final judgments and those interlocutory orders and judgments that the legislature has expressly made appealable by statute); Chandler v. Reder, 635 S.W.2d 895, 897 (Tex. App. - Amarillo 1982, no writ) (holding that appeal must be dismissed because the trial court did not render a judgment sufficient to support an appeal).

In its opening brief, Resource did not note that Acucare failed to file the Virginia judgment in the trial court; however, Resource did raise this issue in its reply brief. Acucare has filed a motion to strike this reply brief on the ground that it raises entirely new issues as to which error was not assigned in the opening brief.

Because Acucare's failure to file a judgment in the trial court below deprives this court of appellate jurisdiction, Resource may raise this argument at any time during this appeal, including in its reply brief. See Tullos v. Eaton Corp., 695 S.W.2d 568, 568-69 (Tex. 1985) (stating that lack of appellate jurisdiction is fundamental and can be raised at any time during the appeal). Accordingly, we deny Acucare's motion to strike. In addition, finding that it lacks merit, we deny Acucare's motion for appellate sanctions under Texas Rule of Appellate Procedure 45.

This case is dismissed for lack of appellate jurisdiction.

/s/ Kem Thompson Frost

Justice

Dismissed and Memorandum Opinion filed November 29, 2007.
Panel consists of Justices Anderson, Fowler, and Frost.

[1] Both Resource and Acucare have attached to their appellate briefs documents that are not contained in our appellate record. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. See Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.- Houston [14th Dist.] 2005, no pet.). Therefore, we cannot consider these documents. See id.

Associate Judge David Farr succeeds Jim Squier on 312th Family District Court bench

HOUSTON - According to a November 28, 2007 press release issued by Governor Rick Perry's Office, Associate Family Court Judge David D. Farr has been appointed the take over the 312th district court bench vacated by Hon. James D. Squier, who decided to become one of several contenders for the 22nd Congressional District. Jim Squier (not Squire) resigned effective September 22, 2007 to campaign full-time as a Republican family-values candidate.
See Jim Squier's recently-launched campaign web site. More on Judge David Farr and his campaign to stay on as elected judge of the 312th Family Court.

Divorce Court Vacancy in Harris County Family Law Center filled:

Gov. Appoints David Farr as 312th Judicial District Court Judge

AUSTIN - Gov. Rick Perry appointed Judge David D. Farr of Houston as presiding judge of the 312th Judicial District Court, one of nine state family district courts in Harris County, for a term to expire at the next general election.

Farr previously served as associate judge of the 257th Judicial District Court, another state district court hearing family law cases in Harris County and located in Downtown Houston. He is a member of the Houston Bar Association and the State Bar of Texas, Military Law and Family Law sections. He is also a member of the Texas Aggie Bar Association and the Texas A&M Corps of Cadets Association. Farr is an attorney who is board certified in Family Law and also serves as an adjunct professor at South Texas College of Law. [Family district court judges must be lawyers, and thus members of State Bar, but are not required to be board-certified in family law]

Farr received a bachelor’s degree from Texas A&M University and a law degree from Texas Southern University (TSU). He succeeds Judge James D. Squier of Houston, who served in 312th District Court for 20 years and is now running for Congress.

Judge Dorfman ascends to the First Court of Appeals

The Honorable Samuel Grant Dorfman, presiding judge of the 129th District Court and occasional professor of law, helps Justices George C. Hanks, Jr. and Jane Bland decide that former fellow civil trial court judge Gary Block (since disgraced) erred in bench trial of commercial contract dispute. Justice Hanks writes opinion reversing Block and rendering take-nothing judgment.

HP/Management Services, Inc. v. Guaranteed Nursing Staff, L.L.C, No. (Tex.App.- Houston [1st Dist.] Nov. 15, 2007) (Opinion by Justice Hanks) (no authority, no agency, no contract, no breach, no recovery - judgment reversed)
Appeal from County Civil Court at Law No 2 of Harris County
Trial court judge: Hon. Gary Michael Block
Appellant's attorney: Maurice E. Klein
Appellee's attorneys: Sean A. Roberts, Wendell Maurice Champion

MEMORANDUM OPINION

After a bench trial, Guaranteed Nursing Staff, L.L.C. (“GNS”), appellee, prevailed on its breach of contract claim against HP/Management Services, Inc. (“HP”), appellant. In eight issues, HP contends that the trial court erred in rendering judgment for GNS because GNS did not file any pleadings against HP and the evidence is legally and factually insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Michael Mileski was acting for or on behalf of HP when he signed the agreement. HP also appeals the award of attorney’s fees. We reverse and render judgment in favor of HP.

Background

Hermann Park Manor, a healthcare facility, entered into a contract with GNS for GNS to provide temporary personnel staffing for the facility. The contract, entitled “Supplemental Staffing Agreement,” was signed by Michael Mileski, as the administrator of Hermann Park Manor, and Helen Royston, as the marketing director of GNS. GNS was not fully compensated for the services it provided under the contract, and it sued the following parties for, among other things, breach of contract: HCCI-Houston, Inc. d/b/a Hermann Park Manor, the owner of Hermann Park Manor; HP, the management company for Hermann Park Manor; and Mileski, the administrator of Hermann Park Manor. GNS proceeded to trial against Mileski and HP.
[The record does not reflect how the claims against defendant, HCCI-Houston, Inc. d/b/a Hermann Park Manor, were resolved.]

At trial, Cynthia Champion, the owner of GNS, gave undisputed testimony that, while she believed that Mileski had signed the Supplemental Staffing Agreement on behalf of Hermann Park Manor, she learned, after this suit had been filed, that Mileski, in addition to being Hermann Park Manor’s administrator, was also HP’s employee at the time that he signed this contract. During Champion’s testimony, the parties stipulated that GNS was owed $16,853.98 in compensation for services that it provided under the contract.

The court also heard testimony from H.P.’s president Douglas Mittleider. Mittleider testified that HCCI owns Hermann Park Manor. He also testified that, pursuant to the Long Term Care Facility Management Agreement between HP and HCCI, HP is responsible for running the day-to-day operations of Hermann Park Manor on behalf of HCCI and for appointing an administrator to serve as the onsite manager of Hermann Park Manor. This agreement nevertheless specifies that HCCI retains ownership and control over the management duties and obligations of Hermann Park Manor.

HP appointed Mileski as the administrator of Hermann Park Manor. Mittleider testified that, although Mileski was an employee of HP, Mileski did not sign the Supplemental Staffing Agreement with GNS on behalf of HP. Mittleider testified that Mileski signed the Agreement on behalf of the facility and its sole owner: Hermann Park Manor and HCCI, respectively. Mittleider further testified that HP (1) did not enter into the Supplemental Staffing Agreement with GNS, (2) did not make any payments to GNS under this Agreement, and (3) did not enter into any vendor contracts while it managed Hermann Park Manor. Mittleider testified that Mileski, as the administrator of Hermann Park Manor, decided which invoices under the Agreement with GNS were to be paid, and that HCCI, not HP would make these payments. No evidence controverted Mittleider’s testimony that Hermann Park Manor was owned by and doing business as HCCI or that the Long Term Care Facility Management Agreement defined the relationship between Mileski, HP, HCCI, and Hermann Park Manor.

The Long Term Care Facility Management Agreement between HCCI and HP was entered into evidence. Under the terms of this Agreement, HP was required to get permission, in writing, from HCCI to contract with any third party on behalf of HCCI involving a value in excess of $10,000. The Agreement also provided that HP would indemnify HCCI if HP breached the Agreement. The Agreement provides in pertinent part that:

1.03 Management of Facility. During the term of this Agreement, [HP] shall on behalf of [HCCI] manage all aspects of the operation of [Hermann Park Manor], including, but not limited to, staffing, accounting, billing, collections, setting of rates and charges and general administration. In connection therewith, [HP] (either directly or through supervision of employees of [Hermann Park Manor]) shall:
. . .

(j) Negotiate and enter into in the name of and on behalf of [HCCI] such agreements, contracts and orders as it may deem necessary or advisable, for the furnishing of services, concessions and supplies for the operation and maintenance of [Hermann Park Manor]; provided, however, that [HCCI] must approve, in writing, any agreement, contract or order, which has a term greater than one (1) year or which requires annual payments of more than $10,000.
. . .
5.09 Costs and Expenses: Indemnity
. . .

(b) [HP] agrees to indemnify and hold [HCCI] and its officers, directors, agents and employees harmless from and against all losses, claims, damages or other liabilities, including without limit, reasonable attorneys fees and the costs and expenses incurred in connection therewith, arising out of or relating to the willful misconduct, breach of contract or gross negligence of [HP], in performing its duties under this Agreement.
Mittleider testified that he did not believe HP had received written approval from HCCI to bind HCCI to the agreement with GNS, which was valued in excess of $10,000.

After the close of evidence, the trial court made the following findings of fact and conclusions of law:

Findings of Fact

1. On December 26, 2001, Defendant, Michael Mileski, an employee of HP Management Services and Administrator of Hermann Park Manor, executed a written contract with Plaintiff Guaranteed Nursing Staff to provide temporary personnel staffing for their local facility. Prior to executing the agreement, Defendants failed to properly disclose that the company could not or would not willingly pay for the services rendered under the contract, within the terms of the agreement. Specifically, prior to entering into the agreement, Defendants concealed the material fact that their business was operating under budget constraints and that they would not make timely payments pursuant to their contractual obligations.

2. From December 26, 2001 until on or about April 22, 2002, Plaintiff provided supplemental staffing services to the Defendant under the executed agreement which provided for payment within 30 days after receipt of the invoice. Clause 5(c), Compensation and Payment, provides “All amounts due to the Agency are due within (30) days from receipt of invoice. Facility will send all payments to the address printed on the Agency invoice.” Defendants requested and accepted the temporary personnel services of the Plaintiff for their healthcare facility and became bound to pay Plaintiff its designated charges, which were reasonable and customary for such services.

3. The account accurately sets forth the services, the dates of services, the hours and prices for the services that the Plaintiff provided Defendant. The account represents the record of the transactions that Plaintiff systematically keeps in the ordinary course of business. Defendants have refused to make full payment for services rendered and the principal balance due Plaintiff on the account is $16,853.98 after allowing for all just and lawful offsets, payments and credits.

4. Subsequent to the execution of the contract, Defendants have failed to perform the terms of the contract without legitimate legal excuse. Defendants have failed to pay Plaintiff for services rendered.

5. As a result of the Defendants’ conduct, Plaintiff found it necessary to employ attorneys. Plaintiff also properly presented its breach of contract claim such that attorneys’ fees are recoverable. Thus, in addition to the damages suffered by Plaintiff, Guaranteed Nursing Staff, L.L.C. has a right to be reimbursed reasonable attorneys’ fees as permitted by law. Although the Court heard no evidence of the reasonableness or amount of attorneys’ fees incurred by Plaintiff, the Court takes judicial notice that Plaintiff’s attorneys have expended time and effort prosecuting this case and that a reasonable fee for the services is $5,000.00.
Conclusions of Law

1. The Court finds Plaintiff has non-suited all claims asserted against HP/Hermann Park., Inc. and are hereby dismissed with prejudice to re-riling. [sic]
2. The Court finds that Plaintiff take nothing by its suit against Defendant Michael Mileski and that Michael Mileski recover his court costs from Plaintiff.
3. The Court finds that Plaintiff recover judgment from Defendant HP Management Service, Inc., on its cause of action for breach of contract only and shall recover the sum of $16,853.98, together with post-judgment interest at the annual rate of 6% until paid.
4. Plaintiff recover prejudgment interest on the judgment at thed [sic] annual rate of 6% from May 2, 2002 to the date of judgment in the sum of $3,167.57.
5. The Court finds Plaintiff recover its attorney fees from HP Management Service, Inc., in the amount of $5,000.
6. The Court finds that all of Plaintiffs court costs be taxed against Defendant HP Management Service, Inc.
7. The Court finds its judgment is final and disposes of all claims and all parties and that relief not expressly given is denied and that the parties are allowed such writs and processes as may be necessary in the collection or enforcement of this judgment.

The trial court awarded GNS $16,853.98 in addition to interest and attorney’s fees.
HP as a Named Defendant

In issue one, HP contends that the trial court erred in rendering judgment for GNS because GNS did not file any pleadings against HP. Specifically, HP alleges that “there were no pleadings on file with the trial court wherein GNS named [HP] as a Defendant or asserted any claim against [HP].” HP further argues that “there were no pleadings in the trial court wherein GNS asserted a breach of contract claim against [HP].” We disagree.

The appellate record includes a copy of GNS’s third amended petition in which it names HP as a defendant. Within the petition, GNS alleges that it suffered damages when the defendants breached the contract by failing to perform the terms of the contract and failing to pay GNS for services rendered. HP did not specially except to the third amended petition. In addition, the record contains a Rule 11 Agreement from HP’s attorney wherein he agreed to accept service on behalf of HP. We overrule issue one.

Breach of Contract

In issues two through six, HP asserts that the evidence is legally and factually insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Mileski was acting for or on behalf of HP when he signed the agreement. In issues seven and eight, HP asserts that there is no evidence to support an award of damages in this case for breach of contract. The crux of HP’s argument is that the evidence is legally and factually insufficient to show that Mileski was acting as an agent of HP and had the authority to bind HP to vendor contracts when he signed the Supplemental Staffing Agreement. Accordingly, HP argues that the trial court erred in finding HP liable for breaching the agreement and for the payment of damages under the court’s conclusions of law three and four. We agree.

Standard of Review

We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand N.V., 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court’s conclusions of law for lack of factual sufficiency, but we review the legal conclusions drawn from the facts to determine their correctness. BMC, 83 S.W.3d at 794. If the reviewing court finds that a conclusion of law is erroneous but that the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id. When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

In this case, the undisputed facts establish that Mileski did not have actual authority to bind HP to the Supplemental Staffing Agreement as HP’s agent, nor did HP ratify such conduct on its behalf by Mileski. As reflected on the signature blocks provided on the Agreement, Mileski signed the Agreement as the “administrator of Herman Park Manor,” not on behalf of HP. Accordingly, the trial court erred in its legal conclusions that HP was liable for breach of the contract and for the payment of damages to GNS.

Agency Relationship

It is undisputed that GNS did not learn that Mileski was an HP employee until shortly after this suit was filed.

An undisclosed principal is liable for the contracts of its agent only if the agent acted with the principal’s actual authority in making the contract for the principal or the principal ratified the contract. See Latch v. Gratty, Inc. 107 S.W.3d 543, 546 (Tex. 2003)

[In its briefing, GNS does not argue that HP ratified the Supplemental Staffing Agreement onits behalf nor have we found any evidence in the record to support this conclusion. There isno evidence that HP ever acknowledged the Supplemental Staffing Agreement as anagreement between HP and GNS nor was there any evidence that HP has ever asserted anyrights against GNS based on this Agreement. ]

Assuming, without deciding, that Mileski was HP’s agent by virtue of his status as an HP employee, the evidence is legally insufficient to conclude that Mileski had actual authority from HP to bind it to the Supplemental Staffing Agreement.

“Actual authority” is based on manifestations of consent by the alleged principal to the alleged agent, and such authority can be conferred either expressly or by implication. See Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

Express authority exists where the principal has made it clear to the agent that he wants the act under scrutiny to be done. City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex. App.—San Antonio 1984, writ dism’d).

Implied authority exists when appearances justify a finding that the principal authorized the agent’s act; in other words, there is circumstantial evidence of actual authority. Id. at 683–84. Implied actual authority exists only as an adjunct to express actual authority, because implied authority is that which is proper, usual, and necessary to the exercise of the authority that the principal expressly delegates. Behring Int’l, Inc. v. Greater Houston Bank, 662 S.W.2d 642, 649 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d by agr.); Employers Cas. Co. v. Winslow, 356 S.W.2d 160, 168 (Tex. Civ. App.—El Paso 1962, writ ref’d n.r.e.).

In this case, there is no evidence of express or implied actual authority for Mileski to sign the Supplemental Staffing Agreement on behalf of HP and bind HP to the terms of this contract. Mittleider, the president of HP, testified that Mileski executed the Supplemental Staffing Agreement on behalf of HCCI, the owner of the facility, not HP. Furthermore, it is undisputed that HCCI is doing business as Herman Park Manor and the Agreement expressly bears Mileski’s signature in his capacity as the administrator of Hermann Park Manor, not as an employee of HP. There is also no evidence of what authority Mileski had to bind HP to any contracts with vendors who did business with Hermann Park Manor, which was owned by HCCI. It is undisputed that Mileski never entered into any vendor contracts on behalf of HP while HP managed Hermann Park Manor, and HP never paid any of the invoices from GNS under the Supplemental Staffing Agreement: only Hermann Park Manor’s owner, HCCI, paid them.

Nevertheless, GNS argues that because (1) Mileski was an HP employee at the time he signed the Supplemental Staffing Agreement; (2) GNS was directed to make its billing inquiries through HP, as administrator of the facility; (3) Mileski made the decision as to which bills to submit to HCCI, as owner, for payment, and HP forwarded payments for GNS’s invoices from HCCI to GNS; and (4) HP and HCCI are located in the same city in Georgia, there is sufficient evidence of actual authority to bind HP to the Supplemental Staffing Agreement.

We disagree.

These facts establish Mileski’s and HP’s status as agents for HCCI under the Long Term Care Facility Management Agreement. They do not, however, establish that Mileski signed the Agreement on behalf of HP or that he had authority to bind HP to the terms of the Agreement, particularly where the Agreement expressly states that he did so on behalf of Hermann Park Manor, a facility owned by HCCI.

Next, GNS argues that Mileski’s apparent breach of the Long Term Care Facility Agreement by entering into the Supplemental Staffing Agreement, without HCCI’s permission, for an amount in excess of $10,000 is sufficient evidence to show implied actual authority to enter into the agreement on behalf of HP. We disagree. Absent evidence of Mileski’s authority to contract on behalf of HP, or of whether Mileski ever had express authority or exercised any authority to bind HP, this evidence cannot establish implied actual authority. See Behring Int’l, Inc., 662 S.W.2d at 649; Employers Cas., 356 S.W.2d at 168 (holding that, for implied authority to exist, there must be some evidence concerning what authority had been given to agent).

Finally, HP argues that, because Mileski never disclosed to GNS that he was an employee of HP or that Hermann Park Manor was owned by HCCI, under “an undisclosed principal theory,” HP is liable for payment due under the Supplemental Staffing Agreement. GNS’s reliance on the holdings in Posey v. Broughton Farm Co., 997 S.W.2d 829, 832 (Tex. App.—Eastland 1999, pet. denied) and Hideca Petroleum Corp. v. Tampimex Oil International, Ltd., 740 S.W.2d 838, 841 (Tex. App.—Houston [1st Dist.] 2003, no pet.), for this argument is misplaced.

These cases stand for the proposition that, if an agent fails to disclose its principal, the agent is liable for the contract it enters into with third parties. As noted above, an undisclosed principal is only liable for the contracts entered into by its agents with the actual authority of the undisclosed principal or if the undisclosed principal subsequently ratifies the contract. See Latch, 107 S.W.3d at 546.

Here, this was not the case.Assuming, without deciding, that Mileski was an agent of HP by virtue of his employment with HP, the evidence is legally insufficient to establish that he had actual authority to sign the Agreement on behalf of HP or bind HP to the terms of the Agreement, where he did so expressly on behalf of Hermann Park Manor, owned by HCCI, but not HP.

Accordingly, the evidence is legally insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Mileski acted for or on behalf of HP when he signed the agreement of the facility.

The trial court thus erred in concluding that HP was liable for breach of the contract to GNS, and we sustain issues two through six. Because we hold that there is insufficient evidence of liability for breach of contract, we do not need to reach points of error seven and eight regarding the trial court’s damage award.

Conclusion

We reverse and render judgment that GNS take nothing from HP.

Mom on drugs fails opportunity to shape up; has her parental rights terminated

Grandmother did not want to step up to the plate either. Houston Court of Appeals reviews evidence on each of the Holley v. Adams best-interest factors and affirms trial court's order terminating mother's rights based on jury verdict. Reviewing court finds no error in denial of Mother's untimely attempt to amend her pleadings to request different placement of child.

Amanda Strange v. Department of Family and Protective Services, No. (Tex. App.- Houston [1st Dist.] Nov. 20, 2007)(Opinion by Justice Alcala)(termination of parental rights)(Before Chief Justice Radack, Justices Alcala and Bland)
Appeal from 306th District Court of Galveston County

MEMORANDUM OPINION BY JUSTICE ELSA ALCALA

Appellant, Amanda Strange, appeals the trial court’s order terminating parental rights to her child, C.S. In two issues, appellant contends that the evidence is factually insufficient to support the jury’s finding that termination is in the best interest of the child and that the court abused its discretion by denying her Motion to Relax the Docket Control Order and striking her counterpetition. We affirm.

Background

On March 24, 2006, the Galveston Sheriff’s Office was called to Strange’s house to conduct a child welfare check. Strange was living with her mother, Linda. As Officer Dunn got out of his car to approach the house, he could hear the child screaming inside the house. Officer Dunn looked into the house through a living room window. He saw Strange unconscious, on the couch, and the screaming child less than a foot away from her head. There was no answer when Officer Dunn knocked at the door. With the assistance of another officer who arrived at the house, Officer Dunn kicked in the door. The officers awakened Strange. The officers asked when the child had eaten last. Strange responded that the child had eaten just thirty minutes before they arrived. Although Strange claimed the child was not hungry, the child drank the entire bottle of milk that Strange made for her in the officers’ presence. As Strange was speaking with the officers, the officers noted that she appeared to be under the influence of “some type of drug.” The officers asked Strange if she had taken any medication, but she denied having taken medication. The officers also found an empty bottle of Vicodin. The prescription, which was in Linda’s name, was for 90 pills but had been filled 18 days before. When Officer Dunn asked where Linda was, Strange responded that she had not seen her in days and that only she and her sister, Sylvia, lived in the house.

Linda, Sylvia, and Strange’s other sister, Jessica, arrived at the house. Sylvia told Officer Dunn that she had called the Sheriff’s Department because Strange had talked about committing suicide. Sylvia also said Strange stated that she did not want the child. Jessica told the officers the same details as Sylvia. Linda told the officers that she did not know about Strange’s thoughts of suicide, but that all three of her daughters, including Strange, had a drug problem. Officer Dunn asked Strange if anyone could come and care for the child. Strange said there was no one who could take care of the baby.

Officer Dunn contacted the Department of Family & Protective Services (DFPS) and an ambulance to evaluate Strange and the child. The emergency medical technicians stated that they believed that Strange had taken some sort of medication but that the child was fine. Around the same time, the DFPS caseworker, Angela Woodford, arrived at the home to take custody of the child. Woodford stated that DFPS had to remove the child from the home until an investigation could be completed but that Strange could release the child to the custody of a friend or relative, as long as that person could pass a criminal background check. However, Strange was unable to give Woodford the name of any friend or relative who could pass a criminal background check. Woodford then arranged for the child to go to a foster family pending the investigation.

On March 27, 2006, DFPS petitioned the Galveston County District Court for emergency temporary custody. The trial court granted DFPS temporary sole managing conservatorship of the child and ordered the case to mediation. On April 5, 2006, the trial court issued a docket control order, which set a February 3, 2007 deadline for all pretrial amendments and a February 26, 2007 deadline for all jury questions and instructions. The order also set a pretrial hearing for March 2, 2007 and trial for March 5, 2007.

The mediation took place on April 5, 2006, and the DFPS caseworker stated that the goal of the mediation was family reunification. During mediation, Strange and DFPS created a Family Service Plan, which Strange had to complete before she could regain custody of the child. Strange agreed to submit to a psychological evaluation and parenting assessment, a drug and alcohol assessment, random drug testing, and to complete supervised visits with the child. Strange also agreed to cooperate with DFPS and to maintain a stable home environment and employment. At mediation, the parties decided that, upon completion of a home study, the child would be placed with Linda, the child’s maternal grandmother.

After mediation, DFPS sought to perform a home study on Linda. Woodford went to the home to perform the scheduled preliminary walk-through of the home, but no one answered the door when she knocked, and no one answered at the phone number she had. Woodford returned to the office, and her supervisor located a different phone number for Linda. Linda answered at the new phone number but seemed to be asleep and was unaware that the time of the appointment had passed. DFPS completed the preliminary walk-through the following week. In the weeks after the home study was completed, however, DFPS received a voice mail message from Linda, in which she stated that she did not want to care for the child. On April 18, 2006, Linda also met with the new DFPS caseworker, Kathy Fee, and told her that she was not sure she wanted to care for the child for 18 years. Linda then stated that she did want the child, but later again repeated that she did not want to care for the child. Fee responded that the child needed consistency and Fee decided to leave the child in temporary foster care, where she had been since she was removed from Strange’s custody, but she proceeded to seek reunification with Strange.

In the months after mediation, Strange failed to comply with the requirements of the service plan. In May 2006, Strange’s drug test was positive for marijuana. Strange was also released from an outpatient drug rehabilitation facility for excessive absenteeism. Strange told Fee in June 2006 that she was addicted to prescription drugs. Strange stated that she was unemployed and had no way of seeking employment. She and the child lived with Strange’s mother and depended on friends for financial support. During Strange’s July visit with the child at the child’s foster home, the child’s foster mother noted that Strange was not attentive and seemed tired and depressed. Strange admitted to being under the influence of drugs during this visit. Strange failed to visit the child in August and did not contact DFPS to schedule a September visit. Strange failed a drug test in September 2006.

At the September permanency hearing, DFPS stated that it was changing its goal from reunification to termination and adoption by a non-relative. At trial, DFPS presented testimony from the two DFPS caseworkers and the child’s foster mother, who each testified that termination was in the child’s best interest. Strange testified that she had struggled with drug addiction since she was 17 and that her sisters had abused drugs as well. Linda testified that she thought Strange would never get her child back. When asked if Strange’s rights should be terminated because she is a habitual drug user and had a criminal history, Linda responded, “Why not?”

Best Interest of the Child

A. Standard of Review

In her first issue, Strange asserts that the evidence is factually insufficient to show that it is in the best interest of the child for the parent-child relationship to be terminated. In termination-of-parental-rights cases, due process requires that the plaintiff support his claims of termination by clear and convincing evidence. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 193 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982); In re B.L.D. & B.R.D., 113 S.W.3d 340, 353–54 (Tex. 2003)). “Clear and convincing evidence” is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the claims sought to be proved. Tex. Fam. Code Ann. § 101.007 (Vernon 2002). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which the opposing party had the burden of proof, that appellant must demonstrate that there is insufficient evidence to support the finding. Vasquez, 190 S.W.3d at 193; see also Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In analyzing factual sufficiency, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Vasquez, 190 S.W.3d at 193; see also In re J.F.C., A.B.C., & M.B.C., 96 S.W.3d. 256, 265–66 (Tex. 2002). A factual sufficiency challenge will be overruled if, considering all the evidence in the record that both supports and contradicts the trial court’s finding, the fact finder reasonably could form a firm conviction or belief that the termination of parental rights is in the best interest of the child. In re C.H., 89 S.W.3d 17, 28–29 (Tex. 2002); Vasquez, 190 S.W.3d at 193–94.
In determining whether termination is in the child’s best interest, we apply the following factors laid out in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include, but are not limited to:
1. The child’s desires;

2. The child’s physical and emotional needs, now and in the future;

3. The emotional and physical danger to the child, now and in the future;

4. The parental ability of the individuals seeking custody;

5. The programs available to assist these individuals in promoting the child’s best interest;

6. The plans for the child by the individual or agency seeking custody;

7. The stability of the home or proposed placement;

8. The parent’s act or omissions that may indicate the existing parent-child relationship is not the proper one; and

9. Any excuse for the parent’s acts or omissions.

Holley, 544 S.W.2d at 371–72. The party in favor of termination is not required to prove all of the Holley factors, particularly where there is undisputed evidence that the parent-child relationship endangers the child’s safety. See In re C.H., 89 S.W.3d at 27. Additionally, absence of evidence about some of the Holley factors does not preclude a fact finder from reasonably forming a strong conviction that termination is in the child’s best interest. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist] 2003, no pet.).

1. Desires of the child

C.S. is now approximately two years old and has been in foster care since she was eight months old. Because she is too young to express her desires, this factor does not demonstrate whether termination of Strange’s parental rights is in the best interest of the child.

2. Emotional and physical needs of the child now and in the future

Strange contends that no evidence shows that she did not provide appropriate medical care, food, clothing, or shelter, and that there is no evidence of neglect. Contrary to this claim, the record shows that police officers found the hungry infant child next to an unconscious Strange. Strange also asserts that she and her mother Linda are bonded to the child. However, the record shows that Strange missed opportunities to visit her child and, at least once, visited the child after ingesting narcotics. Strange testified that she struggled with drug addiction and was relying on a friend for financial support. She also testified that she was unemployed with no way of seeking employment. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

3. Emotional and physical danger to the child now and in the future

As Strange accurately points out, no evidence in the record shows physical abuse of the child. However, Sylvia told police that Strange had threatened to kill herself. The record shows Strange continues to abuse and is addicted to narcotics. Strange has failed to receive treatment that has been offered to her for her drug addiction. Also, Strange did not show an interest in the child. Strange failed to appear for a visit and attended a visit after ingesting narcotics. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

4. Parental abilities of the individual seeking custody

Strange contends that she provided the child with a safe and stable home; offered Linda as an “appropriate placement”; “attempted to do all that CPS has asked her to do”; and “loves her child.” The record, however, does not support these claims. Linda missed her initial appointment for a home study and vacillated whether she wished to provide long-term care for the child. Police officers found the baby, hungry, next to an unconscious Strange. Strange failed to comply with the requirements of the service plan, continued to use drugs, used drugs before a visit with the child, and missed opportunities to meet with the child. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

5. Programs available to assist Strange to promote the best interest of the child

Strange has had several opportunities to get help with her drug abuse, but has failed to do so. She was dismissed from an outpatient program for excessive absenteeism. She acknowledged an addiction to drugs, and asked Fee for information on a treatment center. Fee put Strange in contact with several residential treatment centers with available space, but Strange failed to follow-up with any of them. Thus, although there are programs that have been made available to help Strange overcome her addiction, Strange has failed to accept help from those programs. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

6. Plans for the child by person seeking custody

The DFPS caseworkers testified that DFPS was seeking to be named sole managing conservator so that C.S. could be adopted. The child’s foster family indicated that they had plans to adopt if possible and that the child would be a part of whatever their family did. Strange wants the child to be placed with her mother, Linda. However, Linda was equivocal and seemed reluctant to take on the responsibility of caring for the child for the next 18 years. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

7. Stability of the home or proposed placement

If Strange’s rights were terminated, DFPS intends to pursue adoption. The child’s foster mother testified that she had been approved by DFPS over a period of 16 months and that she previously had two other foster children placed in her home. Nothing in the record suggests that the proposed foster/adoption placement would be unstable. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

8. Acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper

Strange contends she has demonstrated she is capable of parenting her child and can keep a stable and safe home. The same circumstances described in number three demonstrate that the existing parent-child relationship is not a proper one and that termination of Strange’s parental rights is in the best interest of the child.

9. Any excuse for the acts or omissions of the parent

Strange gave no reason for her failure to attend or schedule visitation with the child, or for her absenteeism from her drug rehabilitation program. She has not demonstrated any ability to maintain a stable environment for the child. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

10. Conclusion

An analysis of the Holley factors shows that a fact finder reasonably could form a firm conviction or belief that termination is in the best interest of the child. We conclude that the evidence is sufficient to support the jury’s finding that termination was in the best interest of the child. We overrule Strange’s first issue.

Motion to Relax Docket Control Order & Counterpetition

In her second issue, Strange contends that the trial court abused its discretion by denying her Motion to Relax the Docket Control Order and striking her counterpetition. Strange filed a Motion to Relax the Docket Control Order and Motion for Amended Respondent’s Pleadings. In this motion, she asked the court to allow her to file a counterpetition in the Suit Affecting the Parent-Child Relationship to request that Linda be named sole managing conservator of the child. A trial court abuses its discretion when its actions are arbitrary or unreasonable. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

Strange asserts that the trial court abused its discretion in denying her Motion to Relax the Docket Control Order. A trial court has broad discretion in controlling its docket. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The trial court filed a control order on April 6, 2006, setting a February 3, 2007 deadline for the filing of all pleading amendments and pretrial matters. Strange filed the counterpetition on February 22, 2007, after receiving DFPS’s proposed jury charge, which made no mention of Linda as a possible conservator. Strange claims that this was the first time she realized that Linda was no longer being considered as a possible placement. However, the record shows that on September 12, 2006, DFPS filed a permanency plan and progress report, in which DFPS stated that its permanency goal was “unrelated family adoption.” Therefore, Strange had roughly five months to file her counterpetition from the time that she learned that DFPS was seeking unrelated adoption. Strange gives no other reason for her failure to file the counterpetition before the docket control order’s deadline. The trial court was not unreasonable in enforcing its docket control order under these circumstances, which show that Strange should have been aware of DFPS’s intentions for nearly five months. Id. We hold that the trial court did not abuse its discretion by denying Strange’s Motion to Relax the Docket Control Order.

Strange also asserts that the court abused its discretion in striking her counterpetition, which Strange filed with her Motion to Relax the Docket Control Order. In her counterpetition, Strange sought to have her mother, Linda, named sole managing conservator of the child after Strange received DFPS’s proposed jury charge, which made no mention of Linda. On appeal, Strange contends that, under Rule 66 of the Rules of Civil Procedure, she had a right to amend her petition “subject only to [DFPS’s] right to show surprise.”

Appellant approaches this issue under Rule 66, which applies to amendment to the pleadingsmade during trial. Rule 63 applies to amendments to the pleadings made pretrial. BecauseStrange filed her counterpetition roughly 10 days before trial and the trial court struck thecounterpetition during a pretrial hearing, we have addressed the issue under Rule 63. However, the trial court’s discretion to disallow amendments made under both Rule 63 andRule 66 is reviewed under the same framework. See Greenhalgh v. Serv. Lloyds Ins. Co., 787S.W.2d 938, 939 (Tex. 1990).

The right of amendment under Rule 63 is subject to the opposing party’s right to show surprise, as determined in the exercise of the trial court’s discretion. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980). This showing may be based on the trial court’s conclusion that the amendment on its face is calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial. Id.; see also Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990).

Therefore, in reviewing the trial court’s ruling, the fact that the objection was not expressly based on the grounds of surprise is not controlling. Hardin, 597 S.W.2d at 349. When the trial court refuses amendments that introduce new substantive matter under Rule 63, the burden falls on the complaining party to show an abuse of discretion, rather than on the opposing party to show surprise. Id. On appeal, the complaining party must clearly show an abuse of discretion in order to disturb a trial court’s ruling. Id.

Strange’s new petition sought to change who the court would appoint as managing conservator. The trial court could have reasonably concluded that the amendment, filed less than 10 days before trial and more than three weeks after all amendment were to be filed under the docket control order, would “reshape the cause of action” and prejudice DFPS. See Hardin, 597 S.W.2d at 344.

Although the original petition does include language suggesting that DFPS would first pursue conservatorship by a relative, DFPS had made clear to the court and to Strange that their goal was “unrelated family adoption” in September 2006 when it filed a permanency progress report. Strange points to no other evidence that suggests that the court abused its discretion. We hold that the trial court did not abuse its discretion in striking Strange’s counterpetition.

We overrule Strange’s second issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala
Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Gag order in Houston teen murder case lifted

In Re: Ashley Paige Benton (Tex.App.- Houston [14th Dist.] Nov. 16, 2007)(Opinion by Justice Guzman)(Before Justices Hudson, Fowler and Guzman)
Appeal from 177th District Court of Harris County
Disposition: Mandamus relief granted; district court judge ordered to vacate gag order

Justice George C. Hanks Jr. reverses termination of parental rights

In Interest of A.A.A. - Alexander v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Hanks) Opinion by Justice Hanks (Before Justices Taft, Hanks and Higley)

Paul Alexander and Shde Hurst v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT: Opinion by Justice HanksBefore Justices Taft, Hanks and Higley01-07-00160-CV Paul Alexander and Shde Hurst v. Department of Family and Protective ServicesAppeal from 314th District Court of Harris County (Hon. John Phillips)

In this accelerated appeal, Shde Aza Hurst challenges the trial court’s judgment terminating her parental rights to her minor child, A.A.A., and naming the Texas Department of Family and Protective Services (“DFPS”) as A.A.A.’s sole managing conservator. In five issues, Hurst argues that the evidence is legally and factually insufficient to support the trial court’s findings under Section 161.001. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006). In her sixth issue, Hurst asserts that, if we reverse the trial court’s termination of her parental rights, we should also reverse the trial court’s appointment of DFPS as sole managing conservator. We reverse the trial court’s termination of her parental rights and render judgment denying DFPS’s petition to terminate Hurst’s parental rights. We affirm the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator.
* * *
Because we hold that the evidence is legally insufficient to support the trial court’s findings under 161.001(1), we need not review the sufficiency of the trial court’s finding that termination is in A.A.A.’s best interest under 161.001(2). Therefore, we reverse the trial court’s termination of the parent-child relationship between Hurst and A.A.A. and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. See Tex. R. App. P. 43.2(c).

Sole Managing Conservator

Having reversed the termination of Hurst’s parental rights, we now turn to Hurst’s sixth issue, which asks whether the appointment of DFPS as sole managing conservator should also be reversed. Hurst first contends that, because the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator resulted from the trial court’s termination of Hurst and Alexander’s parental rights, the appointment must also be reversed.
We addressed this issue in Earvin v. Department of Family and Protective Services. 229 S.W.3d 345 (Tex.—Houston [1st Dist.] 2007, no pet.). In Earvin, we concluded that, because the trial court appointed DFPS as conservator after finding, independent of its termination of parental rights finding, that appointment of the parent would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development, appointment of DFPS was a separate issue that required independent analysis. Id. at 350–51. The Texas Supreme Court recently reaffirmed that a parent must bring an independent challenge on the issue of conservatorship in similar situations. See In re J.A.J., __ S.W.3d __, 2007 WL 3230169, at *1 (Tex. Nov. 2, 2007) (concluding that, where the trial court finds that appointment of the parent would significantly impair the child’s physical health or emotional development, and appointment of DFPS is in the child’s best interest, “reversal of a termination judgment . . . does not affect the trial court’s conservatorship appointment absent assigned error”).
Here, the trial court found that appointment of Hurst or Alexander would not be in A.A.A.’s best interest because such appointment would significantly impair A.A.A.’s physical health or emotional development. The trial court also found that appointment of DFPS as conservator was in A.A.A.’s best interest. Therefore, DFPS’s appointment as conservator is independent of the trial court’s termination of Hurst’s parental rights and requires independent analysis.
We begin by addressing whether we are precluded from reviewing Hurst’s sixth issue because she failed to follow the procedures for appellate review of a final order under Section 263.405 of the Family Code. Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2006). Subsection 263.405(b) requires an appellant to file, not later than the 15th day after the date a final termination order is signed, “a statement of the point or points on which the party intends to appeal.” Id. § 263.405(b). This statement of points may also be combined with a motion for new trial. Id. Under Subsection 263.405(i), “[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this Subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.” Id. § 263.405(i).
The record includes Hurst’s timely filed motion for new trial and statement of points, which indicates her intention to challenge the legal and factual sufficiency of the evidence in support of the trial court’s findings of 161.001(1)(E), (F), (N), (O), and (2). However, Hurst urged no point concerning the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator. Therefore, because Hurst failed to specifically present this issue in her statement of points, we are precluded from considering it. See Pool v. Texas Dept. of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Accordingly, Hurst’s sixth issue is overruled.
Conclusion
We reverse and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. We affirm the portion of the decree assigning DFPS as the sole managing conservator of A.A.A.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley.

Who said Texas does not have alimony?

Justice John S. Anderson affirms permanent spousal support to wife who admitted three extra-marital affairs and claimed physical and mental incapacity, but worked 30 hours a week; holds that spouse's employment does not preclude award of spousal mainentance, but reverses award of money judgment for medical expenses for lack of evidence of necessity and reasonableness of charges.

Dunaway v. Dunaway (Tex.App.- Houston [14th Dist.] Nov. 13, 2007)(Anderson)(Texas divorce law, indefinite spousal maintenance, disability, incapacity, earnings capacity, consideration of fault, marital misconduct, motion for new trial based on new evidence on wife's employment)

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

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

Factual and Procedural Background

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

Discussion

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

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

1. Standard of Review

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

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

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

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

2. Analysis

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

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

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

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

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

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

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

THE COURT: I remind you, that that=s a tie. He=s had an affair. She=s had an affair.@
MR. STOCKER: Is that a question, Judge?
THE COURT No. It=s a statement. It=s also an encouragement to go to another subject that=s more relevant to the Court right now.
MR. STOCKER: Yes, sir.

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

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

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

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

1. Standard of Review

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

2. Analysis

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

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

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

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

C. Is the Divorce Decree Voidable if it Provides for Spousal Maintenance for an Indefinite Period of Time

Without Specifically Finding an Incapacitating Physical or Mental Disability?

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

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

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

1. Standard of Review

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

2. Analysis

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

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

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

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

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

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

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

1. Standard of Review

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

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

2. Analysis

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

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

After hearing all the evidence, the trial court denied the motion for new trial and the motion to reform judgment. Appellant argues on appeal he meets the four part test required for a new trial. Appellant argues he had no knowledge of this new evidence during trial since it occurred in November 2005, he could not have procured it prior to trial as it did not exist, the evidence is not merely cumulative and does not tend only to impeach, and the evidence would probably produce a different result if a new trial were granted.
The record does not reflect why the trial court denied the motion for new trial. Regardless of the ground on which the trial court based its decision, the trial court did not abuse its discretion. Based on the record, there was sufficient evidence for the trial court to decide, despite Susan=s new monthly income, she still could not meet her minimum reasonable needs. A spouse=s mere employment does not preclude an award of spousal maintenance. Trueheart, 2003 WL 22176626, at *3 (citing In re Marriage of Hale, 975 S.W.2d 694, 698 (Tex. App.CTexarkana 1998, no pet.)); see In re Gonzalez, No. 07-05-0205-CV, 2006 WL 3102303, at *4 (Tex. App.CAmarillo Nov. 2, 2006, no pet.) (mem. op.) (rejecting husband=s contention that his wife=s gainful employment during their separation before divorce precluded an award of spousal maintenance). The trial court could reasonably have decided Susan=s monthly income from TJ Max, which would be approximately $870 before taxes, was still insufficient to meet her minimum needs considering her prior testimony that her monthly expenses totaled at least $1,700 per month. Furthermore, there was sufficient evidence for the trial court to decide Susan was still mentally or physically incapacitated and, therefore, still eligible for maintenance indefinitely. Along with the testimony during the original trial, Susan testified at the motion for new trial hearing she was unable to work more than thirty hours per week due to her conditions. We cannot say the trial court=s refusal to grant the new trial or reform the judgment was a manifest abuse of discretion or a violation of a clear legal right. Accordingly, we overrule appellant=s fifth issue.

Conclusion

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

/s/ John S. Anderson Justice

Judgment rendered and Memorandum Opinion filed November 13, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] While the trial court found certain community liabilities existed, it did not specify in either the Final Divorce Decree or the Findings of Fact which party was liable for the debt.
[2] In his brief, appellant states: AAppellee Susan Dunaway admits to having three affairs during the marriage. Yet the Court, in its Findings of Fact regarding the issue of spousal maintenance, does not even mention the three affairs Appellee admitted. Appellant[=s] requests for additional findings of fact were ignored by the Court.@
[3] Appellant breaks down his second issue into three sub-issues: (1) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating mental disability, (2) the evidence is legally and factually insufficient to show Susan has an alleged incapacitating physical disability, and (3) the evidence is legally and factually insufficient to show Susan=s alleged physical or mental disabilities caused her to be incapacitated. We find the sub-issues are similar enough to address together.
[4] Within this issue, appellant also argues the trial court only implicitly found Susan had an incapacitating physical or mental disability. Appellant argues the trial court=s Findings of Fact do not include a specific finding that Susan had an incapacitating mental or physical disability. We disagree with this contention. In the court=s Finding of Fact number 5, it states A[t]he court finds that during the marriage MAVIS CLIFTON DUNAWAY was the primary wage-earner and by agreement of the parties, SUSAN DAWN DUNAWAY, was a Astay-at-home@ wife with certain known mental and to some extent physical limitations/disabilities.@ The court also states in Finding of Fact number 12 Susan was eligible to receive maintenance based on direct testimony from her mother regarding her mental disabilities and Susan=s physical and emotional condition. Furthermore, the court=s explanation for awarding a disproportionate division of the estate in Finding of Fact number 11 states Susan suffered mental disabilities resulting from brain damage at birth and certain physical disabilities limited her ability to maintain gainful employment. In its Conclusion of Law number 11 the court concludes Athat if a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues.@ Based on these findings, we do not agree with appellant that the trial court only implicitly found an incapacitating mental or physical disability.
[5] This was the portion of the judgment awarded to Susan for medical costs incurred after appellant cancelled health insurance in violation of the court=s temporary orders.
[6] In his motion for new trial, appellant also argued a new trial was warranted because (1) the evidence at trial failed to support a finding of physical or mental disability; (2) Susan admitted to three affairs during the marriage; (3) Susan offered no medical records or medical testimony to support her claim of mental incapacitation; and (4) the court failed to appoint an attorney ad litem to represent Susan. On appeal, however, appellant failed to brief any of these issues as they relate to the motion for new trial and only raises the newly discovered evidence issue. We, therefore, find all of the other issues relating to the motion for new trial have been waived and the only issue before us is whether the trial court erred by denying the motion for new trial based on newly discovered evidence. See Tex. R. App. P. 38.1; McIntyre, 50 S.W.3d at 682.