Henry Hutcherson III v. Tina Hutcherson

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00297-CV

Henry Hutcherson III, Appellant

v.

Tina Hutcherson, Appellee

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CV40919, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING

OPINION

Before marrying, appellant Henry Hutcherson III (Hank) and appellee

Tina Hutcherson (Tina) entered into a premarital agreement (PMA), which delineated each

spouse’s separate property and governed the division of their marital estate in the event of divorce.

Tina filed for divorce in 2021, and following a bench trial, the court entered a final divorce decree

in which it dissolved the parties’ marriage on the ground of insupportability, found the PMA to be

valid and enforceable, and confirmed the parties’ separate property. The trial court awarded Tina

a $900,000 judgment against Hank as “part of the division of community property between the

parties” and ordered Hank to pay $5,000 per month in spousal maintenance for a period of ten

years. On appeal, Hank contends that the trial court abused its discretion by imposing the $900,000

judgment and spousal-maintenance order. We affirm in part and reverse in part the trial court’s

final divorce decree.
BACKGROUND

Tina filed a divorce petition in which she requested spousal maintenance and a

disproportionate share of the community estate based on claims of reimbursement and fraud on

the community. The divorce was tried to the bench on November 20, 2023. Both parties testified

about their marriage, their separate and community property, and how the PMA affected the

community estate’s development. At the time of trial, Hank and Tina had no minor children.1

The PMA recited that Hank and Tina had fairly disclosed their assets and liabilities

to each other, that each had or “reasonably could have had adequate knowledge of the property

and financial obligations of the other party,” and that each “voluntarily and expressly waived in

writing any right to further disclosure.” Both parties were represented by independent counsel in

connection with the agreement, expressed an understanding of its terms, and signed it after

executing a “waiver of disclosure of financial information.”2 Under the PMA, funds deposited in

the parties’ joint accounts were designated community property, and the parties were required to

deposit their salaries into one or more of the joint accounts. Hank’s salary was defined as the

lesser of “$60,000 per year” or “1/2 of the profits of Accurate, Inc.,” his separate property business.

The PMA incorporated handwritten schedules listing each party’s separate

property; Hank’s Accurate shares were expressly characterized as his separate property. All

income or property generated by separate property was to retain the generating property’s separate

character, and the PMA specifically provided, “Monies distributed from a separate property asset,

1
When Hank and Tina married, each had a child from a prior relationship. They had two
children together.
2
The copy of the Waiver of Disclosure of Financial Information included in the record
was signed only by Tina.
2
such as Accurate, Inc, or any other corporations that may later be formed, which do not comprise

a portion of the actual stated salary of HENRY HUTCHERSON, III, as reflected in the company

books shall be separate property.” Although property bought with community funds was to be

designated community property regardless of whose name was on the title, any property purchased

using a party’s separate property wholly or as a down payment would be that party’s separate

property “regardless of the terms of the financing agreement, and even if the community credit

is pledge.”

The PMA provided that in the event of divorce, each party would receive “all

separate property belonging to that party” as well as “one-half of all community assets, less

community debt.” The agreement made no provision regarding spousal maintenance. Hank and

Tina waived reimbursement claims other than those for benefits from the community to their

separate estates:

Any payment or contributions by one of us to satisfy the debts or otherwise benefit
the separate estate of the other shall not give rise to a claim for reimbursement of
an interest in any property purchased by those payments unless we otherwise agree
in writing. Any right of reimbursement that may arise during our marriage for
payments or contributions made to the other’s separate estate by the community
estate shall be reimbursed.

Tina testified at trial regarding her marriage to Hank, the couple’s lifestyle, and his

adultery. They married on December 13, 1993. Tina had been a flight attendant for around six

years when she met Hank but stopped working at his insistence in 1992 or 1993, when their first

child was born. She testified that Hank “did not want [her] to work” but rather “wanted [her] to

stay home with the children and family” and “to always be available, kind of at his beck and call

because he wasn’t really a planner.” Although she and Hank discussed her returning to work once

their children were in school and again in 2013, after he cheated on her, he discouraged the idea
3
and questioned the value of any financial contribution she could make, reportedly telling her,

“[W]hat’s that going to do for us, we fly around in private jets and first class and you want to go

back to slinging drinks in the back.”

According to Tina, when she and Hank married, they initially lived in an apartment

with his sister, and Accurate was “just a small paint shop.” The business flourished over the course

of the marriage, and the couple moved into a series of large ranches purchased by Accurate in

Hutto, Wimberley, and Thorndale. Hank told Tina that one of the ranches belonged to both of

them and referred to another ranch as “ours.” Tina and two of her children played polocrosse, an

equestrian sport for which they and their horses traveled “all over the United States” and for which

the two children also traveled “internationally extensively.” The family frequently vacationed in

Hawaii and Telluride, Colorado—often accompanied by the children’s friends—and during the

marriage, Tina had access to helicopters and private jets, which Hank also referred to as “ours.”

Tina never turned down a trip or a flight on a private jet or helicopter; she enjoyed that part of their

lifestyle. In addition to the travel, Hank bought himself a new car “every thirty or fifty-thousand

miles” and bought her a new Suburban every few years; he did not tell her that the vehicles

were purchased in Accurate’s name. Although she was not “one hundred percent” certain as

to Accurate’s worth, she testified that “[a]t some point, I think we saw numbers like in the

37 million range.”

Tina “never questioned the finances” and did not ask if the family could afford to

travel as it did; she assumed “if we were doing it then we could afford it.” Asked if she and Hank

discussed their “future together and what that looked like as far as property,” she testified, “No,

not—no, I mean, I guess it was all—we didn’t have great communication as far as any of that. It

was whatever he decided, that’s what we did.” He managed the couple’s finances, and she “didn’t

4
have any say so or control or knowledge of anything.” She did not have access to their tax returns

or bank statements and never attempted to gain access to the latter because Hank “pretty much told

[her] it wasn’t [her] concern.” While she occasionally sold horses, she gave him the proceeds and

did not know what he did with the money. She trusted him and thought that they were building a

community estate and that she would be able to retire; he “always told [her] you don’t have to

worry about anything, you don’t have to worry about anything, you will be taken care of.” Had

she known “the situation,” she would have acted differently and would never have quit her job.

After Hank’s first affair, which began around 2011 or 2012, he promised never to

cheat on Tina again. However, in late 2020, she learned that he had been seeing other women and

that he had purchased an expensive condo in Horseshoe Bay.

Regarding her earning potential and property, Tina explained that she was

fifty-eight and that the retirement age for flight attendants at most airlines was between fifty-five

and sixty-five. She graduated high school but had completed only “a little bit of college.” Since

her and Hank’s separation, she had applied for jobs at several airlines and other businesses but had

received only a single low-paying offer from an airline that wanted her to relocate to Rhode Island

and that did not fly to Texas, where all of her children live. During the divorce case’s pendency,

she had been studying for her real estate license but had not yet completed her classes; regardless,

her friend, a realtor, had told her that real estate work would not support Tina immediately because

“you don’t make money right away.” Tina testified that as of the time of trial, she had no way of

supporting herself or of meeting her minimum reasonable needs. There was no chance that she

could make “any type of income that would match” the lifestyle she had enjoyed during her

marriage, and the divorce had “destroyed everything” that she and her children “thought [they]

would have at this point.” Asked what she would have done differently had she known that Hank

5
“was building a life for himself and not [her],” she answered, “I would have never given up my

career. I don’t know what I could have done differently. I mean, put money aside. I just, you

know, I never even had the opportunity to put money aside for a nest egg for myself.”

At the time of trial, Tina was living in “a little apartment” at her parents’ house; she

had previously lived in a trailer at the Thorndale ranch but had to move when Hank began installing

a solar farm, and she “got kicked out of the house.” She received health insurance through

Accurate and testified that a PPO plan would cost her between $1,200 and $2,200 per month. In

a proposed support decision admitted at trial, she gave her gross monthly earnings as $0 and her

monthly expenses as $10,490.00, excluding health insurance. 3 In its initial temporary orders

signed on July 23, 2021, the trial court ordered Hank to pay $4,924.04 per month in spousal

support. In further temporary orders on June 22, 2023, the court ordered him to pay an additional

$1,500 per month “for her use towards securing new living arrangements.”

Tina testified that the community estate included no real property and that her car,

a ten-year-old Porsche, needed a new transmission and new brakes. She had no life-insurance

policy or retirement account, and the joint checking and savings accounts in her name, which were

part of the community estate, were worth approximately $14,675.16, less her credit card debt. In

a sworn inventory admitted at trial, she calculated the value of the community estate at

$83,518.16 and requested that she be awarded $61,009.34.

Hank’s testimony largely concerned the extent of his separate property,4 which was

predominantly held by Accurate, a company he co-owned with his deceased father’s living trust,

3
In the expense fields next to “Health insurance” and “Dental and orthodontia,” Tina
wrote, “Husband pays.”
4
The characterization of Hank’s separate property is not at issue on appeal.
6
of which he was the trustee and sole beneficiary. The joint checking and savings accounts in

Hank’s name—which like the joint accounts in Tina’s name were community assets—had a total

balance of around $3,581.12 after subtracting his credit card debt. His separate property included

a traditional IRA worth $16,547.05,5 a living trust to which he had assigned all of his personal

property, and property held in Accurate’s name. Among the latter were the three ranches; two

condos in Horseshoe Bay, each worth more than $700,000; the furniture for all of the homes;

multiple properties in Milam County, Waller County, and Williamson County; and three bank

accounts with a total balance of $1,866,983.63 as of October 2023.

In 2013, Hank created a second business, H. H. Accurate Ranch, L.L.C., which was

funded by Accurate and which managed expenses at the latter’s properties. H. H. Accurate

Ranch’s only asset was a bank account with a balance of $17,829.67 as of October 2023. His

father’s living trust reflected an October 2023 balance of $541,015.49. It is unclear whether the

helicopter and private jets used by Hank and Tina were leased or were titled in his or Accurate’s

name; they did not appear in either spouse’s proposed property division or property inventory. In

Hank’s proposed disposition of issues, he valued the community estate at $20,093.23 and

requested that he be awarded forty-four percent, or $8,785.52.

Eight of Hank’s tax returns—from 1992, 2015, and 2017 through 2022—were

admitted into evidence during trial. On four of the returns, he reported income greater than

$250,000; moreover, other than 2015, he reported income over $150,000 each year. He testified

that he began filing a separate return around 2012 or 2013 on the advice of his accountants after

5
Hank testified that he set up an IRA for Tina with an identical balance, but no other
evidence of the IRA was offered at trial. Tina testified that she was unaware of the
IRA’s existence.
7
learning that Tina was not reporting income generated by her horse-trading. He also testified that

at the time of trial, he had a yearly salary of $62,500 because of the pandemic’s impact on his

industry and because Accurate was “losing money every month,” leading him to “cut expenses

everywhere.” Yet he also acknowledged that the business had bought the Horseshoe Bay condos

during the pandemic because prices were depressed and that he had continued to travel with

his girlfriend.

Hank frequently used his company credit cards to pay for personal expenses as well

as “things that inured to [him] and [Tina] and [their] children of a personal nature.” Although he

had in fact earned “well in excess of $60,000 a year”—his salary obligation under the PMA—

during the marriage, he had also spent in excess of his required contribution, and Tina and the

children had benefitted from his income. He and Tina had “lived a pretty world[-]traveling

lifestyle.” He agreed that he had managed the couple’s finances, that much of their lifestyle had

been funded by his separate property, and that his ability to use Accurate’s funds to furnish that

lifestyle was “just another perk of having a business.” 6 He further testified that his intent had not

been to avoid creating community property and maintained that he had not been “paying [him]self

less and leaving it in the company so that [Tina] would have less.”

Hank disagreed with Tina regarding her finances and employment. He testified

that she was “free to work” and “had a very successful horse[-]trading business” and that he

thought she had “a few bank accounts [he] didn’t know about.” He agreed that he had gifted her

two trailers and the Porsche and elsewhere testified that she “has worked selling jewelry in multiple

states. She has worked at a fashion center in Wimberl[e]y. She has had lots of income.”

6
Hank testified that he assiduously accounted on his taxes for personal expenses paid
using Accurate’s funds.
8
Asked whether he had worked with the “same drive” to build up their community

estate as he had to grow Accurate, Hank answered, “I guess not.” And while he agreed that he

“would refer to [his] income or what [he was] building . . . as ours,” he was ambiguous about any

representation he had made regarding their retirement.

In the trial court’s final divorce decree, it found that the PMA was “valid and

enforceable as a matter of law” and granted Hank and Tina’s divorce on the ground of

insupportability. After finding that it was “a just and right division of the parties’ marital estate,

having due regard for the rights of each party,” the court listed each party’s separate property. The

sole reference to the division of the community estate came as part of the court’s award to Tina of

the $900,000 judgment:

For the purpose of a just and right division of property made in this decree, IT IS
FURTHER ORDERED AND DECREED that Petitioner, Tina Hutcherson, is
awarded judgment of $900,000.00 against Respondent, Henry Hutcherson, with
interest at 5% percent per year compounded annually from the date of judgment,
for which let execution issue. IT IS ORDERED that Henry Hutcherson shall pay
said judgment by paying $50,000 by February 9, 2024 and the remaining balance
by April 3, 2024. To be paid by cashier’s check or wire.

This judgment is part of the division of community property between the parties
and shall not constitute or be interpreted to be any form of spousal support, alimony,
or child support.

The court also ordered Hank to pay $5,000 per month to Tina as spousal

maintenance until: December 31, 2033; the death of either party; Tina’s remarriage; or “further

orders of the Court affecting the spousal maintenance obligation, including a finding of

cohabitation by Tina Hutcherson.” Under a section titled “Date of Judgment,” the court wrote,

“This divorce heard and final orders rendered on November 20, 2023, but divorce not granted until

9
the date of the signing of this Final Decree of Divorce below.” The trial court judge signed the

decree on February 2, 2024.

Hank filed an untimely request for findings of fact and conclusions of law, which

the trial court did not make. He filed a motion to modify the trial court’s judgment and a motion

for new trial, both of which were overruled by operation of law. This appeal followed.

DISCUSSION

I. Standard of Review

We review a trial court’s division of community property and award of spousal

maintenance for an abuse of discretion. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)

(property division); Kelly v. Kelly, 634 S.W.3d 335, 364 (Tex. App.—Houston [1st Dist.] 2021,

no pet.) (spousal maintenance). It is an abuse of discretion for a trial court to rule arbitrarily,

unreasonably, without regard for guiding rules or principles, or without supporting evidence.

Transcor Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 482 (Tex. 2022).

Under an abuse-of-discretion standard, the “legal and factual sufficiency of the

evidence are not independent grounds of error but instead are factors used to determine whether the

trial court abused its discretion.” A.S. v. Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786,

795 (Tex. App.—Austin 2023, no pet.) (citing Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex.

App.—Austin 2006, pet. denied)). The reviewing court considers first whether the trial court had

sufficient information on which to exercise its discretion and, if so, whether the trial court erred in

its application of discretion. Id. (citing Zeifman, 212 S.W.3d at 588). “The traditional sufficiency

review comes into play with regard to the first question.” T.E. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-22-00067-CV, 2022 WL 3092885, at *8 (Tex. App.—Austin Aug. 4, 2022, no pet.)

10
(mem. op.) (citing Zeifman, 212 S.W.3d at 588). The court then determines whether, based on that

evidence, the trial court’s decision was reasonable. A.S., 665 S.W.3d at 795.

In reviewing for legal sufficiency, “we view the evidence in the light most favorable

to the verdict,” crediting favorable evidence when a reasonable factfinder could do so and

disregarding contrary evidence unless a reasonable factfinder could not. See Pike v. Texas EMC

Mgmt., LLC, 610 S.W.3d 763, 794 (Tex. 2020). We will sustain a no-evidence challenge when

(1) evidence of a vital fact is absent, (2) rules of law or evidence bar us from giving weight to the

only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact.

Bos v. Smith, 556 S.W.3d 293, 299–300 (Tex. 2018).

The trier of fact “is the sole judge of the credibility of witnesses and the weight to

be given their testimony.” Altice v. Hernandez, 668 S.W.3d 399, 410 (Tex. App.—Houston [1st

Dist.] 2022, no pet.) (citing Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003)). We therefore “may not pass upon the witnesses’ credibility or substitute our judgment for

that of the fact finder.” 4922 Holdings, LLC v. Rivera, 625 S.W.3d 316, 325 (Tex. App.—Houston

[14th Dist.] 2021, pet. denied).

When the trial court conducts a bench trial but makes no findings of fact and

conclusions of law, it is implied that the court made all findings necessary to support its judgment.

Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990)). If, as here, the appellate record includes the reporter’s and clerk’s records, these implied

findings are not conclusive and may be challenged for legal and factual sufficiency. Anderson

Mill Mun. Util. Dist. v. Robbins, 584 S.W.3d 463, 473 (Tex. App.—Austin 2005, no pet.). In

11
determining whether some evidence supports implied findings of fact, we consider only the

evidence most favorable to the issue and disregard entirely any evidence to the contrary. Worford,

801 S.W.2d at 109.

II. Premarital Agreements

A PMA is “an agreement between prospective spouses made in contemplation of

marriage and to be effective on marriage,” Tex. Fam. Code § 4.001(1), and is distinct from a

partition-and-exchange agreement (also called an interspousal or postmarital agreement), compare

id. §§ 4.001–.009, with id. §§ 4.101–.106. For purposes of a PMA, “property” is broadly defined

as “an interest, present or future, legal or equitable, vested or contingent, in real or personal

property, including income and earnings.” Id. § 4.001(2). Parties to a PMA may contract with

respect to “the disposition of property on . . . marital dissolution”; “the modification or elimination

of spousal support”; and “any other matter, including their personal rights and obligations, not in

violation of public policy or a statute imposing a criminal penalty.” Id. § 4.003(a)(3), (4), (8). The

exclusive defenses against enforcement of a PMA are involuntariness and unconscionability. See

id. § 4.006(a)–(c); see also Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 693 (Tex. App.—Austin

2005, pet. denied) (recognizing that subsection (c) was enacted to enshrine involuntariness and

unconscionability as sole available defenses against enforcement of PMA and to disclaim other

common law defenses and underscoring that “the legislature has mandated” that PMAs “must be

enforced unless the exclusive statutory defenses are proven”).

Texas law generally favors PMAs, In re Marriage of Sauls & Worley,

648 S.W.3d 359, 364 (Tex. App.—Texarkana 2021, no pet.), which are interpreted like other

written contracts, In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 122 (Tex. 2018); see Beck

12
v. Beck, 814 S.W.2d 745, 748–49 (Tex. 1991) (using terms “premarital agreement” and “contract”

interchangeably). There is, however, one important difference; unlike a normal contract, a PMA

must be narrowly construed in favor of the community estate. Fischer-Stoker v. Stoker,

174 S.W.3d 272, 278–79 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “Texas has a ‘strong

public policy favoring freedom of contract’ that is ‘firmly embedded in our jurisprudence.’”

Marriage of I.C. & Q.C., 551 S.W.3d at 124 (quoting Philadelphia Indem. Ins. v. White,

490 S.W.3d 468, 471 (Tex. 2016)). Parties have “the utmost liberty of contracting,” and when

they enter a contract freely and voluntarily, the contract “‘shall be held sacred and shall be enforced

by [c]ourts.’” Id. (quoting Gym–N–I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex.

2007)). Like all contracts, a PMA is rarely found to be unenforceable on public policy grounds.

Id.; see, e.g., Beck, 814 S.W.2d at 749 (“The legislature and the people of Texas have made the

public policy determination that premarital agreements should be enforced. If we refuse to enforce

[Husband’s] and [Wife’s] premarital agreement, we would thwart, rather than advance, our state’s

public policy enforcing these contracts.”).

Neither Hank nor Tina argues that their PMA was ambiguous, and its interpretation

is therefore a matter of law for this Court to review de novo. See Marriage of I.C. & Q.C.,

551 S.W.3d at 122. Our primary objective is to effectuate the parties’ intent, as expressed in the

PMA; objective manifestations of intent, not the parties’ subjective intents, control. Id. “Unless

the contract indicates that the parties used a term in a technical or unusual sense, contractual terms

are given their plain, ordinary, and generally accepted meaning.” Id. We will not attempt to

rewrite a PMA by inserting a provision that the parties could have included or by imposing

restraints for which they did not bargain. Id. at 124. And in interpreting the PMA, “we must

examine and consider the entire writing in an effort to harmonize and give effect to all the

13
provisions of the contract so that none will be rendered meaningless.” El Paso Field Servs., L.P.

v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012).

III. Division of Community Property

In his first issue, Hank contends that the trial court abused its discretion by awarding

Tina the $900,000 judgment because the PMA required that each party receive half of the

community estate. Alternatively, he argues that there was no evidence to support an implied

finding of reimbursement or constructive fraud on the community. Tina responds that the PMA

did not preclude a finding of constructive fraud and that the trial court did not abuse its discretion

by reconstituting the martial estate based on its implied finding that Hank committed fraud.

A. Whether the trial court had discretion to make a just and right division of the
community estate

Section 7.001 of the Texas Family Code requires that a trial court must “order a

division of the estate of the parties in a manner that the court deems just and right, having due

regard for the rights of each party and any children of the marriage.” Tex. Fam. Code § 7.001.

“Trial courts can only divide community property, and the phrase ‘estate of the parties’

encompasses the community property of a marriage, but does not reach separate property.”

Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011) (per curiam). The division must be

equitable but need not be equal. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998).

Hank and Tina disagree about the applicability of section 7.001, and by extension

the cognizability of equitable claims of reimbursement and constructive fraud, in light of their

PMA. This question—whether a trial court that finds a PMA to be valid and enforceable has

discretion to deviate in any way from the agreement’s provisions regarding the division of the

community estate—appears to be an issue of first impression in this Court.
14
The parties have provided, and we have found, little authority discussing the

interplay between section 7.001 and Texas’s version of the Uniform Premarital Agreement Act

(UPAA). We previously discussed the UPAA in Sheshunoff, a case involving a

partition-or-exchange agreement. 172 S.W.3d at 693. We explained that subsections 4.006(a) and

(b) of the Family Code reflected the view that “a premarital agreement that was voluntarily

executed would be enforced, even if unconscionable, as long as the opposing party knew or should

have known of the other party’s assets, or waived such disclosure.” Id. (citing In re Marriage of

Bonds, 5 P.3d 815, 825 (Cal. 2000)). In adopting the UPAA, Texas abandoned its previous

requirement that a party seeking to enforce a PMA prove by clear and convincing evidence that

the agreement was not procured by fraud, duress, or overreaching; the shifted burden reflected the

Legislature’s “strong policy preference that marital property agreements should be enforced

whenever persons who are married or intend to marry voluntarily enter into them.” Id. at 694.

There is persuasive caselaw suggesting that a valid and enforceable PMA renders

the requirement of a “just and right” division of the community estate inapplicable. In a case in

which the Texas Supreme Court recently upheld a trial court’s grant of summary judgment on a

declaratory-judgment claim concerning the interpretation of a PMA, the supreme court analyzed

in dicta what effect the wife’s attempted recission of the PMA would have had if it had succeeded:

By seeking to rescind the Agreement, [Wife] sought what could have been a greater
distribution of the marital estate under the Texas Family Code and related Texas
common law than she would have received had the Agreement remained in place .
. . . Had [Wife] succeeded in rescinding the Agreement, her payments would
instead have been determined by the Texas Family Code’s provisions for a just and
right division of the community property. This manner of property division would
have been “at variance with” several provisions of the Agreement . . . . and with
the Agreement’s overall design to substitute certain payment amounts for the
default legal rules of marital property division. See generally Tex. Fam. Code §§
3.001–.410 (regarding marital property rights and liabilities).

15
Marriage of I.C. & Q.C., 551 S.W.3d at 122.

The supreme court, emphasizing that defenses to enforcement of a PMA are

statutorily limited to involuntariness and unconscionability, rejected the wife’s request for a just-

cause or good-faith exception to the PMA, reasoning that recognizing such exceptions “would both

judicially expand section 4.006 and run afoul of [the court’s] longstanding preference to protect

the freedom of contract by enforcing contracts as written.” Id. at 124. The court declared that

“Texas law disfavors equitable exceptions to the enforcement of contracts as written.” Id.

Previously, the court has explained that it adheres “to the maxim that ‘equity follows the law,’

which requires equitable doctrines to conform to contractual and statutory mandates, not the other

way around.” Fortis Benefits v. Cantu, 234 S.W.3d 642, 648 (Tex. 2007). “Where a valid contract

prescribes particular remedies or imposes particular obligations, equity generally must yield unless

the contract violates positive law or offends public policy.” Id. at 648–49. In a concurrence to

Marriage of I.C. & Q.C., Justice Lerhmann similarly posited that because rescission is “‘an

equitable remedy that extinguishes legally valid contracts that must be set aside because of fraud,

mistake, or other reasons in order to avoid unjust enrichment,’” section 4.006 arguably “forecloses

rescission as a remedy altogether with respect to premarital agreements.” Marriage of I.C. & Q.C.,

551 S.W.3d at 125–26 (Lehrmann, J., concurring) (quoting Cantu v. Guerra & Moore, Ltd.,

328 S.W.3d 1, 8 (Tex. App.—San Antonio 2009, no pet.)).

Another case, Fanning v. Fanning, involved both a PMA and a claim of

constructive fraud on the community. 847 S.W.2d 225, 226 (Tex. 1993) (per curiam) (Fanning

II). The court of appeals determined that because the trial court did not find the PMA was executed

involuntarily or was unenforceable, the trial court had erred by setting the agreement aside.

Fanning v. Fanning, 828 S.W.2d 135, 143 (Tex. App.—Waco 1992), aff’d in part, rev’d in part,

16
847 S.W.2d 225 (Fanning I). Important for our purposes was the court of appeals’ conclusion that

the trial court had also erred by failing to equally divide the community estate in accordance with

the PMA:

An agreement to equally divide community property also appears to encroach upon
the trial court’s statutory duty to “order a division of the estate of the parties in a
manner that the court deems just and right, having due regard for the rights of each
party[.]” See Tex. Fam. Code § 3.63(a). 7 However, because section 5.41 had more
clearly defined “the rights of the parties,” the trial court, according to section
3.63(a), must give “due regard” to the terms of a premarital agreement authorized
by the constitution. See Tex. Const. art. XVI, § 15; Tex. Fam. Code § 3.63(a).
Therefore, the court erred to the extent that it failed to equally divide any
community property of the parties.

Fanning I, 828 S.W.2d at 143. Despite acknowledging the binding nature of the PMA’s terms,

the court of appeals held that there was sufficient evidence to support the trial court’s finding that

the husband had committed constructive fraud but determined that the trial court had awarded

excessive damages; the court of appeals remanded for the trial court to determine “the amount of

community funds disposed of unfairly by” the husband. Id. at 149.

At the supreme court, the wife challenged the PMA’s validity, claiming that it was

executed under duress and was unconscionable. Fanning II, 847 S.W.2d at 226. The supreme

court determined that the court of appeals had too narrowly confined the issues on remand:

The trial court should not, in the interest of justice, be required to enforce the
premarital agreement but should have the opportunity to reconsider [Wife]’s other
challenges to its enforceability. [Wife]’s failure to request, and the trial court’s
failure to make, findings regarding duress and unconscionability may well have
been premised on the reasoning that those claims need not be addressed if the

7
Section 3.63 was the statutory predecessor to section 7.001. Section 5.41, in effect before
Texas adopted the UPAA, provided, “Before marriage, persons intending to marry may enter into
a marital property agreement as they may desire.” Fanning v. Fanning, 828 S.W.2d 135, 143 (Tex.
App.—Waco 1992), aff’d in part, rev’d in part on other grounds, 847 S.W.2d 225 (Tex. 1993)
(per curiam).
17
agreement was unconstitutional . . . . It may be necessary for the trial court to
redetermine the property division regardless of the enforceability of the premarital
agreement, but it need not redetermine damages unless the agreement is found to
be enforceable. If the damages [Wife] claims for breach of fiduciary duty are
unliquidated and a retrial to determine those damages is necessary, [Husband]’s
liability for alleged breaches must also be retried as long as that liability is
contested.

Id. One of our sister courts has understood the supreme court’s language regarding possible

redeterminations to mean “that if, upon retrial, the trial court determined the premarital agreement

was not enforceable, it would be necessary for it to redetermine the amount of community

property, if any, which was, in fact, fraudulently transferred.” In re Marriage of Moore,

890 S.W.2d 821, 829 (Tex. App.—Amarillo 1994, no writ) (emphasis added).

In a third case, one of our sister courts has followed the shared rationale of Fanning

I and II and Marriage of I.C. & Q.C. in reasoning that section 7.001 and equitable remedies do not

apply in divorces subject to a PMA. See Bufkin v. Bufkin, 259 S.W.3d 343, 353 (Tex. App.—

Dallas 2008, pet. denied). The husband in Bufkin argued that the trial court erred by excluding

evidence of fault, and the Dallas court of appeals disagreed, citing section 7.001 and declaring that

[s]ince [Husband and Wife] have contracted how the community estate was to be
divided in the event of divorce, provisions of the Texas Family Code allowing
evidence of fault in divisions do not apply. The Agreement’s terms dictated an
even division of the community estate. Accordingly, evidence of fault is not
relevant and the trial judge did not abuse her discretion when she excluded it.

Id.; but cf. Rathjen v. Rathjen, No. 05-93-00846-CV, 1995 WL 379322, at *7 (Tex. App.—Dallas

May 30, 1995, writ denied) (noting that husband had not challenged trial court’s findings that he

“engaged in unfair and fraudulent conduct that dissipated [wife]’s interest in the community estate”

and stating that “[s]uch findings may ultimately affect the final division of property between the

18
parties, but they do not render the PMA unconscionable at the time it was executed” (citing

Fanning II, 847 S.W.2d at 226)).

Because we agree with the supreme court and our sister courts that section 7.001

does not apply when a valid and enforceable PMA provides for a particular division of the

community estate, we hold that the trial court was without authority to make a just and right

division of Hank and Tina’s community estate but instead was required to divide the community

estate based on the PMA’s directive that each party receive “one-half of all community assets, less

community debt.” See Marriage of I.C. & Q.C., 551 S.W.3d at 122, 124–26; Cantu, 234 S.W.3d

at 648–49; Fanning II, 847 S.W.2d at 226; Bufkin, 259 S.W.3d at 353; Fanning I, 828 S.W.2d at

143. Our holding is consistent with Texas’s strong preference for the enforcement of contracts,

including PMAs, as well as its disfavor toward allowing equitable exceptions to contracts into

which parties freely and voluntarily entered. See Marriage of I.C. & Q.C., 551 S.W.3d at 122,

124–26; Cantu, 234 S.W.3d at 648–49. Consequently, the trial court’s award of the $900,000

judgment to Tina was an abuse of discretion insomuch as it was intended to achieve a just and

right division of the community estate contrary to the PMA’s terms. See Transcor, 650 S.W.3d at

482; Murff, 615 S.W.2d at 698.

B. Whether there was evidence to support an implied finding of reimbursement

Alternatively, even if the trial court intended the $900,000 as a reimbursement

judgment, there was no evidence in the record to support an implied finding that the community

was entitled to $900,000 in reimbursement.

Under Texas law, there are three “marital estates”: the separate estates of each

spouse and the community estate, consisting of “the community property owned by the spouses

19
together.” Tex. Fam. Code § 3.401. A reimbursement claim exists when one or both spouses use

the property of one marital estate to confer on a different marital estate a benefit which, if not

repaid, would result in unjust enrichment to the benefitted estate. See id. § 3.402(a); see, e.g.,

McCartney v. McCartney, 720 S.W.3d 789, 798 (Tex. App.—Houston [14th Dist.] 2025, no pet.)

(“[A] community marital estate is entitled to reimbursement for community property funds used

to enhance the separate property of one of the spouses.”). Reimbursable claims include (1)

payment of a debt, liability, or expense; (2) improvements on real property; and (3) use of a

spouse’s time, toil, or talent. See Tex. Fam. Code § 3.402(c).

Parties to a PMA are entitled, as was done here, to contract with regard to possible

reimbursement claims, including by waiving them wholly or in part. See id. § 3.410; see also

Jimenez v. Jimenez, No. 01-23-00087-CV, 2025 WL 1160683, at *7 n.13 (Tex. App.—Houston

[1st Dist.] Apr. 22, 2025, pet. denied) (mem. op.) (recognizing that PMA can waive reimbursement

claims); Moroch v. Collins, 174 S.W.3d 849, 859 (Tex. App.—Dallas 2005, pet. denied) (holding

that interspousal agreement waived husband’s and wife’s claims for reimbursement against each

other’s separate estates but not claims against community). The PMA in this case waived

reimbursements between Hank and Tina’s separate estates but allowed reimbursement claims for

payments or contributions made to one of their separate estates by the community estate.

The divorce decree is silent as to Tina’s reimbursement claim. As noted above, the

trial court did not issue any findings of fact and conclusions of law, and we must therefore presume

that it made all findings necessary to support its $900,000 judgment. See Ad Villarai, LLC v. Chan

Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam).

There is no evidence in the record that community property was used to benefit

Hank’s separate estate; to the contrary, Tina argued at trial that the PMA intentionally minimized

20
the community estate, leaving her—and the couple’s lavish lifestyle—dependent on Hank’s

willingness to use his separate funds. In essence, she argued that had she known that when they

divorced, little would remain in the community estate, she would have used community property

over the course of the marriage to provide for her retirement and not toward travel or leisure. Any

reimbursement claim, in other words, would be for community property used to benefit the

community estate. Although we construe PMAs narrowly in favor of the community estate,

Fischer-Stoker, 174 S.W.3d at 278–79, such intra-estate reimbursement claims are allowed neither

by the Family Code nor by Hank and Tina’s PMA, see Tex. Fam. Code § 3.402(a) (requiring

benefit to “another marital estate”) (emphasis added); Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied) (“Permissible reimbursement may run from

community estate to separate estate, from separate estate to community estate, and from separate

estate to separate estate.”). Further, there is no evidence of a reimbursement claim for community

property used to benefit Hank’s separate estate because the PMA defines community property as

funds deposited in the parties’ joint accounts. Though the PMA required the parties to deposit

their salaries into joint accounts, it defined Hank’s salary as the lesser of “$60,000 per year” or

“1/2 of the profits of Accurate, Inc.” There is no evidence that Hank failed to do so. And the PMA

defined additional income as Hank’s separate property, such that any of Hank’s “time, toil, or

talent” spent on his separate property businesses that resulted in more than this upper-limit

contribution cannot form the basis of a reimbursement claim.

Because there was no evidence that community property was used to benefit Hank’s

separate estate, the trial court would have abused its discretion by impliedly finding that the

community estate was entitled to a $900,000 reimbursement judgment, much less that the full

21
judgment should be awarded to Tina. See Bos, 556 S.W.3d at 299–300; Robbins, 584 S.W.3d

at 473.

C. Whether there was evidence to support an implied finding of constructive
fraud on the community

Again in the alternative, if the trial court intended the $900,000 instead as an award

to remedy Hank’s purported constructive fraud on the community, there was no evidence in the

record to support an implied finding that constructive fraud in fact occurred.

“Fraud on the community” is a “judicially created concept based on the theory of

constructive fraud,” which involves the “breach of a legal or equitable duty which violates the

fiduciary relationship existing between spouses.” Osuna v. Quintana, 993 S.W.2d 201, 207 (Tex.

App.—Corpus Christi–Edinburg 1999, no pet.); see Archer v. Griffith, 390 S.W.2d 735, 740 (Tex.

1964) (“Actual fraud usually involves dishonesty of purpose or intent to deceive, whereas

constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt,

the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to

injure public interests.”). Constructive fraud claims are sometimes referred to as claims for breach

of fiduciary duty or as waste. Wadhwa v. Wadhwa, 720 S.W.3d 169, 186 (Tex. App.—Houston

[14th Dist.] 2025, no pet.); cf. In re Marriage of Walzel, No. 14-16-00637-CV, 2018 WL 614767,

at *3 (Tex. App.—Houston [14th Dist.] Jan. 30, 2018, no pet.) (mem. op.) (“Waste is one form of

fraud on the community.”).

Constructive fraud occurs when one spouse deprives the community of assets to the

detriment of the other spouse. Schlueter, 975 S.W.2d at 589. “A fiduciary duty exists between a

husband and a wife as to the community property controlled by each spouse.” Zieba v. Martin,

928 S.W.2d 782, 789 (Tex. App.—Houston [14th Dist.] 1996, no writ). Absent fraud on the rights

22
of the other spouse, a spouse has the right to control and dispose of community property subject

to his sole management. Massey v. Massey, 807 S.W.2d 391, 401 (Tex. App.—Houston [1st Dist.]

1991, writ denied). Constructive fraud does not, however, require an intent to deceive. Wadhwa,

720 S.W.3d at 186 (citing Puntarelli v. Peterson, 405 S.W.3d 131, 138 (Tex. App.—Houston [1st

Dist.] 2013, no pet.)). “Instead, a presumption of constructive fraud arises when a claimant spouse

shows that the other spouse has disposed of community property without the claimant spouse’s

knowledge or consent.” Id. The lack of either knowledge or consent is sufficient; the presumption

“may arise even when the other spouse has knowledge of the disposition, so long as she did not

also consent to the disposition.” Everitt v. Everitt, No. 01–11–00031–CV, 2012 WL 3776343, at

*3 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem. op.). “Once the presumption

arises, the burden of proof shifts to the disposing spouse to rebut the presumption by showing that

the disposal was fair.” Wadhwa, 720 S.W.3d at 186. Courts consider several factors to decide if

a disposition of community property constitutes constructive fraud: (1) the size of the gift in

relation to the total size of the community estate, (2) the adequacy of the estate remaining to

support the wronged spouse, (3) the relationship between the disposing spouse and the recipient

of the gift, and (4) whether special circumstances existed to justify the gift. Barnett v. Barnett,

67 S.W.3d 107, 126 (Tex. 2001); Dyer v. Dyer, No. 03-16-00753-CV, 2018 WL 2994439, at *6

(Tex. App.—Austin June 15, 2018, no pet.) (mem. op.).

There was no evidence from which the trial court could have found that Tina met

her burden of proving that community property was transferred outside of the community. See

In re Marriage of DeVine, 869 S.W.2d 415, 423 n.11 (Tex. App.—Amarillo 1993, writ denied)

(“Although the burden of proof to show the fairness of a transfer is upon the spouse responsible

for the transfer, it is the burden of the complaining spouse to show that there was a transfer of

23
community property in the first place.”). The evidence showed that Hank disposed of community

funds to benefit the community in the form of a lavish lifestyle, international travel on private jets,

and expensive equestrian sports. By contrast, there was no evidence that he used his required

$60,000 yearly salary under the PMA for the benefit of his separate estate, including Accurate, or

to benefit a third party. As with Tina’s reimbursement claim, the crux of her argument is that she

now regrets how the community funds were used and would have preferred that some portion be

set aside to provide for her in case of divorce.

Because there is no evidence that Hank transferred community property to third

parties, made excessive gifts to third parties, or used community property to benefit his separate

estate, the evidence is legally insufficient to support an implied finding that he committed

constructive fraud, and the trial court would have abused its discretion by awarding the $900,000

judgment on that basis. See Transcor, 650 S.W.3d at 482; Bos, 556 S.W.3d at 299–300; Murff,

615 S.W.2d at 698; see also In re Marriage of Notash, 118 S.W.3d 868, 873 (Tex. App.—

Texarkana 2003, no pet.) (concluding that evidence of constructive fraud was legally insufficient

where husband sent only occasional small cash payments to wife and their children but did not

improperly dispose of community property).

Having concluded that under the PMA, the trial court had no discretion to make a

just and right division of the community estate and that, alternatively, the court would have abused

its discretion by awarding the $900,000 judgment based on an implied finding of reimbursement

or constructive fraud on the community, we sustain Hank’s first issue.

24
IV. Spousal Maintenance

In his second issue, Hank contends that the trial court abused its discretion by

awarding Tina $5,000 per month in spousal maintenance for a period of ten years because (1) she

possessed sufficient property to provide for her minimum reasonable needs, (2) she failed to

exercise diligence in obtaining training or employment, and (3) the trial court improperly delayed

signing the final divorce decree to allow her an additional $180,000 in maintenance. Tina responds

that the court’s award was not an abuse of discretion.

A spouse’s eligibility for spousal maintenance is determined under Section 8.051,

which provides, in relevant part, that

the court may order maintenance for either spouse only if the spouse seeking
maintenance will lack sufficient property, including the spouse’s separate property,
on dissolution of the marriage to provide for the spouse’s minimum reasonable
needs and . . . the spouse seeking maintenance . . . has been married to the other
spouse for 10 years or longer and lacks the ability to earn sufficient income to
provide for the spouse’s minimum reasonable needs[.]

Tex. Fam. Code § 8.051(2)(B).

A spouse qualifying for maintenance under subsection 8.051(2)(B) must also rebut

the presumption that maintenance is not warranted “unless the spouse seeking maintenance has

exercised diligence in . . . earning sufficient income to provide for the spouse’s minimum

reasonable needs” or in “developing the necessary skills to provide for the spouse’s minimum

reasonable needs during a period of separation and during the time the suit for the dissolution of

the marriage is pending.” Id. § 8.053(a). “Once a court determines that a spouse is eligible for

maintenance under Section 8.051, it applies the factors set forth in Section 8.052 to determine the

‘nature, amount, duration, and manner of periodic payments.’” Mehta v. Mehta, 716 S.W.3d 126,

132 (Tex. 2025) (quoting Tex. Fam. Code § 8.052).
25
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.’” Id. at 133

(quoting Sherman v. Sherman, 650 S.W.3d 897, 899 (Tex. App.—Fort Worth 2022, no pet.)). The

Family Code does not define “minimum reasonable needs,” and trial courts “generally have

discretion to determine these needs on a case-by-case, fact-specific basis.” Id. at 132. Although

the best practice is for a spouse seeking support to offer into evidence an itemized list of monthly

income and expenses, neither the Family Code nor the supreme court requires “exactitude.” Id.

However, a trial court must be careful not to double-count an asset or liability. Id. at 134.

“[C]ourts of appeals have repeatedly held that ‘the law does not require the spouse

to spend down long-term assets, liquidate all available assets, or incur new debt simply to

obtain job skills and meet short-term needs.’” Id. at 132 (quoting Schafman v. Schafman,

No. 01-20-00231-CV, 2022 WL 962466, at *6 (Tex. App.—Houston [1st Dist.] Mar. 31, 2022, no

pet.) (mem. op.)).

Section 8.055 of the Family Code caps the amount of spousal maintenance at the

lesser of $5,000 or twenty percent of the contributing spouse’s gross monthly income. Tex. Fam.

Code § 8.055(a). Neither Hank nor Tina contests the trial court’s determination that $5,000 was

the lesser of the two amounts in this case. Section 8.054 provides, in relevant part, that a trial court

may not order maintenance that remains in effect for more than seven years after the date of the

order, if the spouses were married to each other “for at least 20 years but not more than 30 years,”

or for more than ten years after the date of the order, if they were married “for 30 years or more.”

Id. § 8.054(a)(1). Absent certain inapplicable exceptions, the court must “limit the duration of a

26
maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to

earn sufficient income to provide for the spouse’s minimum reasonable needs.” Id. § 8.054(a)(2).

A. Whether Tina possessed sufficient property to provide for her minimum
reasonable needs

First, we consider whether legally sufficient evidence in the record demonstrates

that Tina “will lack sufficient property, including [her] separate property, on dissolution of the

marriage to provide for “her minimum reasonable needs” such that she is eligible for spousal

maintenance. See id. § 8.051. Tina followed the “best practice” set forth in Mehta, and the trial

court admitted her itemized list of income and expenses. See Mehta, 716 S.W.3d at 135. Her

budget reflected zero income and expenses of approximately $10,500 per month. Notably, she

appears to have significantly underestimated her expenses, which do not include the cost of rent,

utilities, homeowner’s or renter’s insurance, health and dental insurance, car insurance, or the cost

of caring for her horses. 8 She testified that a health-insurance plan would cost around $1,200 to

$2,200 per month. She likewise omitted the cost of furniture, which is significant given Hank’s

testimony that Accurate owned the furniture used to furnish the couple’s properties.

While Hank asserts that the budget was unreasonable, the trial court was

responsible for evaluating the credibility of witnesses and resolving any conflicts in the evidence,

and we will not second-guess its determinations. See In re Marriage of C.A.S. & D.P.S.,

405 S.W.3d 373, 390 (Tex. App.—Dallas 2013, no pet.) (we “will not disturb a trial court’s

resolution of conflicting evidence that turns on the credibility or weight of the evidence”); see also

8
Next to many of the listed items, including “Pets and livestock,” Tina wrote, “Husband
pays.” She accounted, however, for $600 per month for a farrier, a craftsman who trims and shoes
horses’ hooves.
27
Murff, 615 S.W.2d at 700. The budget constituted probative evidence of Tina’s income and

expenses, and we are bound by the trial court’s implied finding concerning its accuracy despite

any evidence to the contrary. See Wheeling v. Wheeling, 546 S.W.3d 216, 226–27 (Tex. App.—

El Paso 2017, no pet.) (“Where there is probative evidence to support the findings, they are binding

on the reviewing court even if there is conflicting evidence suggesting different conclusions.”).

The evidence showed that at the time of trial, Tina was fifty-eight years old and had

not worked regularly, if at all, in almost thirty years aside from raising her children. Although she

had broached with Hank the topic of her returning to work, he consistently rejected the idea.

Despite the couple’s enjoyment of luxuries during their marriage, Tina was left in a precarious

financial position after the divorce. She lived in a small apartment on her parent’s property, had

no job, and testified that she had no means of supporting herself or of meeting her minimum

reasonable needs. She owned no real property and lacked both a retirement account and

life-insurance policy. Under the divorce decree, she was awarded separate property including the

joint bank accounts in her name, which totaled around $14,675.16 after accounting for her credit

card debt, and half of one of Accurate’s bank accounts—an award of $8,914.84. 9 The trial court

also awarded her a UBS Wealth Management account, ending in x9089, that was purportedly in

her name. However, there was evidence of only one UBS account at trial—the traditional IRA

account ending in x9090, which was in Hank’s name and was awarded to him as his separate

property. Although Hank testified that he had created an identical account for Tina, she testified

that she was unaware of it, and no evidence of its existence was admitted other than Hank’s

9
Hank does not challenge this award on appeal.

28
testimony.10 In addition to its separate-property awards, the trial court confirmed as Tina’s

separate property: diamond jewelry, two horses, “SWA Profit Sharing/Stocks,”11 a Freightliner

truck, a 2020 Ford F-250, the Porsche, and two trailers.

Much of Hank’s argument on appeal concerns the trial court’s $900,000 judgment,

which having reversed, we will not consider to be included among Tina’s assets. He also argues

that we should consider the $4,924.04 per month in temporary spousal support that she received

from August 2021 until June 2023, when it increased to $6,424 per month. However, the

temporary spousal support was just that, temporary. It was designed to meet Tina’s needs during

the pendency of the divorce proceedings and, even then, was enough to meet only half of her

monthly expenses. There was no evidence at trial that any portion of the temporary support was

converted into a more durable investment or asset, and we will not make that assumption.

Based on the evidence presented and using the appropriate standards, we conclude

that the trial court’s determination that Tina was eligible for spousal maintenance rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions; thus, the

eligibility decision did not constitute an abuse of the trial court’s discretion. See Harwood

v. Harwood, --- S.W.3d ---, ---, No. 03-23-00455-CV, 2025 WL 2233982, at *7 (Tex. App.—

Austin Aug. 6, 2025, no pet.); see also Amos v. Amos, 79 S.W.3d 747, 750 (Tex. App.—Corpus

Christi–Edinburg 2002, no pet.) (“Based on this evidence we hold that the trial court could properly

10
On Hank’s marital property spreadsheet, he listed both UBS IRA accounts. Yet only
his had an account number, ending x9090.
11
Presumably, this refers to equity in Southwest Airlines, for which Tina worked as a
flight attendant. An identical item was listed as her separate property on a schedule attached to
the PMA. The asset was not mentioned at trial and appears on neither Hank’s nor Tina’s property
inventories. If it exists, its value is unclear.
29
determine the appellee’s reasonable minimum needs. Accordingly, we hold that the trial court did

not abuse its discretion in awarding spousal maintenance[.]”).

B. Whether Tina rebutted the presumption that maintenance was unnecessary

Having determined that Tina lacks sufficient property upon divorce so as to be

eligible for maintenance, we next turn to whether she is entitled to maintenance under subsection

8.051(2)(B), reserved for a spouse seeking maintenance who has “been married to the other spouse

for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s

minimum reasonable needs.” Tex. Fam. Code § 8.051(2)(B). As noted above, and as relevant

under the circumstances of this case, there is a rebuttable presumption that spousal maintenance is

not warranted under subsection 8.051(2)(B) unless the spouse has been diligent in developing the

necessary skills to provide for her minimum reasonable needs during a period of separation and

while the divorce suit is pending. See id. § 8.053. The statute “sets forth the conditions under

which a rebuttable presumption arises” but does not “define or circumscribe what type of

evidence is required to overcome that presumption.” Marin v. Marin, No. 03-22-00013-CV,

2023 WL 2776296, at *4 n.5 (Tex. App.—Austin Apr. 5, 2023, no pet.) (mem. op.).

At fifty-eight, Tina was already near the retirement age for a flight attendant, which

she had not been in almost thirty years. Nevertheless, since her and Hank’s separation, she had

applied for jobs at several airlines and other businesses, including Netflix and MGM, which had

openings for “corporate flight attendants.” Despite participating in “two or three interviews on

each of one of them,” she “did not get the job.” She received only one offer, but the required

relocation would not have allowed her to see her children, and the pay was so low that “[i]t would

have cost [her] actually to work for this airline.” In addition to applying for jobs as a flight

30
attendant, she began studying for a real estate license while the divorce was pending. However,

she had not finished her classes by the time of trial and had been told that even after becoming a

real estate agent, it would take a while before she could support herself.

Although Hank argues in his brief that Tina failed to prove diligence because she

did not “seek employment in the horse[-trading] industry, an area where she had extensive

experience during the marriage,” we find his argument unconvincing. He has offered no authority

for the proposition that a spouse must pursue a job in a certain industry or area of expertise to rebut

the presumption under section 8.053. And it would be reasonable to infer that horse-trading

requires a great deal of capital, including land, horses, feed, veterinary care, and travel. While

Tina may have had access to such things during the marriage, there was no evidence that she could

engage in the business at scale after her divorce. As noted above, she currently lives in an

apartment on her parent’s property and owns only two horses and two trailers.

This evidence was legally sufficient to support a finding that Tina exercised

diligence in developing the necessary skills to provide for her minimum reasonable needs. See

Slicker v. Slicker, 464 S.W.3d 850, 863 (Tex. App.—Dallas 2015, no pet.) (reasonable diligence

demonstrated by spouse who conducted job search, took one computer class and planned to take

another, had sent resume to one potential employer, and had worked for short period of time); cf.

Cannon-Hunter v. Hunter, No. 03-21-00332-CV, 2023 WL 2025708, at *4 (Tex. App.—Austin

Feb. 16, 2023) (mem. op.) (reasoning that trial court could have concluded that wife “had made

very little effort to develop skills to provide for her needs” because she “testified about a real estate

course and test that she had not passed, but she admitted that she had not done anything to complete

the course” in over one year); Coleman v. Coleman, No. 02-09-00155-CV, 2009 WL 4755173, at

*3 (Tex. App.—Fort Worth Dec. 10, 2009, no pet.) (mem. op.) (concluding that there was

31
insufficient evidence to support spousal-maintenance award when spouse’s only testimony was

that she “looked into” getting job and that she made $500 in previous two years).

Alternatively, even if the evidence were legally insufficient, “the lack of such

evidence simply gives rise to a rebuttable presumption that spousal maintenance is not warranted”

and shifts the burden to the spouse seeking support to produce evidence that contradicts the

presumption. Once that burden is discharged and evidence contradicting the presumption has been

offered, the presumption disappears and “is not to be weighed or treated as evidence.” General

Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993) (quoting Combined Am. Ins. v. Blanton,

353 S.W.2d 847, 849 (Tex. 1962)). We have explained that in reviewing whether a spouse seeking

support has offered evidence contradicting the presumption, our review “is informed by the

legislative purpose in enacting provisions for spousal maintenance.” Marin, 2023 WL 2776296,

at *4 (citing O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.)).

There was evidence at trial that while Tina was caring for her and Hank’s children,

he was able to grow Accurate into a successful business. By contrast, she testified that as of the

time of trial, she had no way of supporting herself or of meeting her minimum reasonable needs.

From this evidence, as well as the evidence of Tina’s age, lack of capital, time out of the job

market, limited education, and uncertain earning capacity, the trial court could have determined

that she overcame the section 8.053 presumption if it arose. See id. (concluding that wife offered

adequate evidence to overcome presumption given her “long absence from the work force due to

her homemaking activities, her inability to secure employment that would cover her household

expenses without additional education or certifications, and her inability to provide for her

minimum reasonable needs”). Accordingly, we conclude that the trial court did not abuse its

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discretion by awarding Tina spousal maintenance. See Transcor, 650 S.W.3d at 482; Murff,

615 S.W.2d at 698; Marin, 2023 WL 2776296, at *4.

C. Whether the trial court could award spousal maintenance for a period of ten
years

Finally, we consider the duration of Tina’s spousal maintenance award. Hank

argues that the trial court abused its discretion by awarding Tina ten years of spousal maintenance

because rather than sign the final divorce decree on the date of trial, November 20, 2023, when

Hank and Tina had been married for twenty-nine years, the court waited until February 2, 2024—

when they had been married for thirty years—to grant the divorce, thereby extending the

permissible duration of its maintenance award under section 8.054. See Tex. Fam. Code

§ 8.054(a)(1). He asserts that the court’s decision “shows the arbitrary nature of the failure to

render judgment; it was done purely to benefit Tina and had no basis in law.” Although he

recognizes that “there is little guidance on whether a trial court has the ability to delay rendering a

divorce to extend the allowable duration of maintenance under the [Family] Code,” he suggests

that we should be guided by our sister court’s decision in Hipolito v. Hipolito, 200 S.W.3d 805,

806 (Tex. App.—Dallas 2006, pet. denied).

To the extent that our resolution of this question requires statutory construction, we

employ a de novo standard of review and attempt to ascertain the Legislature’s intent. Tanner

v. Texas State Univ., 722 S.W.3d 156, 162 (Tex. App.—Austin 2025, pet. filed) (citing Texas

Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 354–55 (Tex. 2013); First Am. Title Ins.

v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)). To do so, we begin with the statute’s plain language

and, viewing it as a whole, endeavor to read it “contextually, giving effect to every word, clause,

and sentence.” Ngakoue, 408 S.W.3d at 354. “We apply the plain meaning of statutory language

33
unless (1) the Legislature has prescribed definitions, (2) the words have acquired a technical or

particular meaning, (3) a contrary intention is apparent from the context, or (4) a plain-meaning

construction leads to nonsensical or absurd results.” In re Texas Educ. Agency, 619 S.W.3d 679,

687 (Tex. 2021) (orig. proceeding). We may also consider the “object sought to be obtained” by

the statute and the “consequences of a particular construction.” Ngakoue, 408 S.W.3d at 354.

Under section 8.054, the duration of a maintenance order is determined by the

length of the marriage. It is uncontested that Hank and Tina were married on December 13, 1993.

Their divorce became effective on February 2, 2024, when the trial court rendered its judgment,

and not when the divorce was tried. See Fletcher v. National Bank of Com., 825 S.W.2d 176, 179

(Tex. App.—Amarillo 1992, no writ) (“The divorce was effective upon the date of the signing of

the decree rather than the date the cause came on to be heard.”); accord Underhill v. Underhill,

614 S.W.2d 178, 181 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.). Consequently,

Hank and Tina had been married for over thirty years when their marriage was dissolved.

There is nothing in section 8.054, or the Family Code more broadly, expressly

governing how long the trial court has after trying a divorce to render its judgment. Aside from

the length of the marriage, the only factor limiting the trial court’s discretion with regard to the

duration of a maintenance order is subsection 8.054(a)(2), which requires the court to

limit the duration of a maintenance order to the shortest reasonable period that
allows the spouse seeking maintenance to earn sufficient income to provide for the
spouse’s minimum reasonable needs, unless the ability of the spouse to provide for
the spouse’s minimum reasonable needs is substantially or totally diminished
because of:

(A) physical or mental disability of the spouse seeking maintenance;

(B) duties as the custodian of an infant or young child of the
marriage; or

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(C) another compelling impediment to earning sufficient income to
provide for the spouse’s minimum reasonable needs.

Tex. Fam. Code § 8.054(a)(2). Hank has not made an argument under subsection 8.054(a)(2)

on appeal.

From section 8.054’s language, it is clear the Legislature’s primary concern was

ensuring that a spouse receives maintenance until she has had a reasonable opportunity to rebuild

her capacity to support herself and any children in light of the atrophy of her earning potential over

the course of a marriage. See Mehta, 716 S.W.3d at 133. In other words, the maintenance should

give her a fair chance “to ameliorate the ‘very real hardships’ that would otherwise exist as the

result of a divorce.” Id. (quoting Dalton v. Dalton, 551 S.W.3d 126, 143 (Tex. 2018) (Lehrmann,

J., concurring)).

In light of section 8.054’s language (and silence), we see no compelling

justification to construe it as prohibiting maintenance for a certain duration if the threshold for that

duration was met only because the trial court did not sign the divorce decree on the date of the

trial. Had the Legislature intended to require the trial court to render judgment granting the divorce

within a certain time of hearing it, the Legislature could have done so. This is not to say that a

trial court may indefinitely delay rendering judgment; we conclude only that there is nothing in

section 8.054 to compel Hank’s understanding of the statute—that a trial court must render a final

judgment immediately on the conclusion of trial—and he has offered us no other authority besides

Hipolito in support of his preferred statutory construction.

Hank’s reliance on Hipolito is not only misplaced; the decision, to the extent it can

be understood as relevant to his argument, supports the trial court’s award of spousal maintenance

to Tina for a period of ten years. Hipolito concerned eligibility for spousal maintenance under

35
subsection 8.051(2) and not the duration of the maintenance under section 8.054. See 200 S.W.3d

at 806. Subsection 8.051(2) permits maintenance, in relevant part, if “the duration of the marriage

was ten years or longer.” Tex. Fam. Code § 8.051(2). Alan Hipolito, who had been ordered to

pay maintenance to his ex-wife Tracy, contended that subsection 8.051(2) “requires a couple to

be married for at least ten years at the time the divorce action is filed or, alternatively, living

together as husband and wife for at least ten years before a spouse becomes eligible for

maintenance.” Hipolito, 200 S.W.3d at 806. Specifically, he asserted that the ten-year period must

be measured from the date of marriage to the filing of the divorce petition or the date when the

spouses separated. Id. The court of appeals disagreed, noting that by its plain language, the statute

“merely requires the marriage to be in existence for ten years or longer” and that Alan and Tracy’s

marriage “still existed at the time the petition for divorce was filed and when they stopped living

together as man and wife.” Id. at 807.

For the court of appeals, it was enough that by the time of the divorce trial, the

couple had been married for ten years; for that reason, Tracy was eligible for spousal

maintenance. 12 Id. However, the court’s reasoning—that a marriage does not end when a spouse

files for divorce or when spouses separate—applies equally to the date of trial, when Hank argues

his marriage effectively ended for purposes of section 8.054. Spouses are still married during a

divorce trial; a divorce does not become final until the trial court renders judgment. See Baker

v. Bizzle, 687 S.W.3d 285, 292 (Tex. 2024). At the time the trial court rendered its judgment in

this case, Hank and Tina had been married for thirty years, and she was therefore eligible for

12
Significantly, because the court of appeals was concerned with Tracy’s eligibility for
spousal maintenance, it did not need to determine when her and Alan’s marriage ended, only that
it was still in existence at the time of trial, when they had been married for over ten years.
36
maintenance remaining in effect for up to ten years after the date of the order.13 See Tex. Fam.

Code § 8.054(a)(1)(C).

For these reasons, we conclude that the trial court did not abuse its discretion by

awarding Tina spousal maintenance for a period of ten years. We overrule Hank’s second issue.

CONCLUSION

Having sustained Hank’s first issue and overruled his second issue, we affirm in

part and reverse in part the trial court’s final divorce decree and remand this cause for a new

division of Hank and Tina’s community estate in accord with the terms of the parties’ PMA.

__________________________________________
Maggie Ellis, Justice

Before Justices Theofanis, Crump, and Ellis

Affirmed in Part; Reversed and Remanded in Part

Filed: March 19, 2026

Publish

13
Although the trial court wrote in its divorce decree that “final orders rendered on
November 20, 2023, but divorce not granted until the date of the signing of this Final Decree of
Divorce below [i.e., February 2, 2024],” a final judgment in a divorce case is rendered when the
divorce is granted. See Araujo v. Araujo, 493 S.W.3d 232, 236 (Tex. App.—San Antonio 2016,
no pet.). The fact that judgment was not rendered in this case until February 2, 2024, is further
supported by the trial court’s statement at the conclusion of trial, “The divorce will not be granted
until the decree is signed.”
37