A spouse paying Texas spousal maintenance may seek modification if there has been a material and substantial change in circumstances, which may include significant change in their income. In a recent case, a former husband challenged a modification award based on the modified amount of maintenance as well as the court’s denial of his request to apply the modification retroactively.
The parties’ 2011 Agreed Final Divorce Decree ordered the husband to pay $1,150 in monthly spousal maintenance until the wife remarried or died or until her disability was removed or the trial court otherwise rendered a new order. The husband earned about $80,000 per year at the time.
Motion for Modification
The husband petitioned for modification in November after he retired the previous June. The court granted the modification in an order signed in June 2019, although the hearing occurred in May 2016. The court granted the husband’s motion for reconsideration and vacated the order.
The husband requested that the court modify the spousal maintenance based on his income and retroactively apply the modification back to November 2015. He also requested reimbursement for an overpayment based on retroactive application of the modification.
In a hearing in March 2022, the husband asked the court to order the wife to reimburse him for overpayment based on retroactive application of the modification. The court granted the modification and ordered the husband to pay $379.73 per month, but did not retroactively apply it back to the date the original motion for modification was filed. The court also confirmed arrears in favor of the wife and denied reimbursement to the husband.
Maintenance Amount
The husband appealed, arguing the trial court abused its discretion in ordering maintenance in excess of 20% of his average monthly gross income.
The court generally has discretion over the amount of spousal maintenance as long as it complies with certain limits. Pursuant to subsection 8.055(a) of the Texas Family Code, a court may not order maintenance in an amount more than the lesser of $5,000 or 20% of their average monthly gross income.
The husband argued his own testimony he earned about $1,062.73 monthly from January 1, 2022 to March 1, 2022 was the only evidence of his gross monthly income was. The appeals court acknowledged he had testified about his income between January and March of 2022, but noted he also testified about his income during previous years. His applicable gross annual income ranged from $20,967 to $32,027 between 2016 through 2021. His military retirement increased to $2,550 in 2022. He testified $1,250 of that amount went to another ex-spouse. He also received $846 per month in retirement benefits from the postal service.
The appeals court determined that the trial court could reasonably have determined the husband’s applicable gross monthly income was at least $2,146 and assessed monthly maintenance at $429.20. The husband also testified he had additional gambling income. The amount ordered was within 20% of that amount. The appeals court concluded the trial court did not abuse its discretion in the amount of maintenance it ordered.
Retroactive Application
The husband also argued the trial court erred in denying his request for retroactive application of the modification. He argued the trial court was required to apply the modification retroactively to all payments that accrued after he filed the modification motion pursuant to Tex. Fam. Code § 8.057(c)(1). The wife argued that subsection 8.057(c)(1) does not require retroactive modification but prohibits the trial court from retroactively applying a modification to payments accruing before a modification motion is filed.
The appeals court did not find any previous case law interpreting subsection 8.057(c)(1). The relevant language in the statute provides that the court “shall apply the modification only to payment accruing after the filing of the motion to modify.”
The appeals court noted that, in interpreting statutes, it considers the statute as a whole. It concluded that both § 8.057(c)(1) and (c)(2) limited the court’s authority to modify maintenance.
The husband focused on the word “shall,” arguing it required the court to apply the modification to all payments that accrued after the motion was filed. The appeals court pointed out, however, that “only” would be superfluous under this interpretation. Statutes are interpreted so that every word has meaning. The appeals court determined that if the legislature intended for modifications to be retroactively applied to all payments that accrued after the motion was filed, it would not have included the word “only.” As written, the language prohibits application of a modification to any payment that accrued before the motion was filed, but does not require retroactive application. The appeals court concluded the trial court did not abuse its discretion in denying the husband’s request for retroactive application to the date the motion was filed.
In light of the appeals court’s conclusion regarding retroactive application, it also rejected the husband’s argument the trial court abused its discretion in confirming arrears for underpayment.
The appeals court affirmed the modification order.
Seek Advice from a Skilled Texas Family Law Attorney
If you believe you have experienced a material and substantial change in circumstances since you were ordered to pay spousal maintenance, a knowledgeable Texas spousal maintenance attorney can advise you of your options, which may include seeking a modification. Call the offices of McClure Law Group at 214.692.8200 to set up a consultation.