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Click here for the full text of this decision FACTS:Hunter Lee Yarbrough and Julia Walsh Yarbrough divorced. As part of the divorce settlement, the trial court ordered Hunter to pay spousal support to Julia of $664.50 per month for one year. The trial court, noting that Hunter’s net monthly resources exceed $6,000, and as authorized by Family Code 154.126(b), ordered Hunter to pay 25 percent of his first $6,000 in child support, plus an additional $171, for a total of $1,671. On appeal, Hunter argues that the one-year spousal support order was an abuse of discretion because Julia did not overcome the statutory presumption against spousal maintenance; she did not show that their daughter requires special care preventing Julia from getting a full-time job; and she did not establish her “minimum reasonable needs.” HOLDING:Affirmed. The court finds that to overcome the statutory presumption against spousal maintenance, Julia had to prove that she exercised diligence in seeking suitable employment. The court further finds that Julia’s diligence must be considered in light of their daughter’s medical condition. Because she suffered from seizures, the daughter required constant parental attention until she had surgery in May 2002, though she did not have a seizure from the time of the operation until the time of the divorce in January 2003. Julia testified that she and Hunter alternated possession of their daughter and other child every other week for seven months after the operation and that alternating schedule made it difficult to find suitable employment. She found a job as a bus attendant that would allow her to week just every other week, though it paid only $50 per week. The court concludes that the trial court was within its discretion to find that Julia exercised diligence under the circumstances to find the best employment available. The court then considers whether Julia established that her care for her daughter prevented her from getting a full-time job. Though the daughter hadn’t had a seizure since her operation, the court finds that this fact doesn’t necessarily mean that the daughter no longer requires a high level of care, noting, too, that the daughter still requires more than two hours of therapy a day. From the testimony presented, as well as notice that the trial court only ordered 12 months of spousal support, the court rules that the trial court was within its discretion to conclude that the daughter’s level of improvement did not justify as abrupt a departure from the amount of personal care and attention Julia provided her. The court then finds sufficient evidence in prior filings (particularly an attachment to the agreed temporary orders and a contempt motion filed by Julia) of Julia’s minimum reasonable needs. From documents submitted by Julia, it can be ascertained that her monthly, post-divorce expenses exceed $2,700 and that her monthly income is only $108. The $664.50 per month spousal maintenance award was within the trial court’s discretion. The court then considers Hunter’s argument regarding the award of child support. The court first rules that because the child support percentage guidelines do not apply to net monthly resources exceeding $6,000, Family Code 154.130 — regarding findings to support variations from the percentage guidelines’ application — does not apply to child support awarded from those resources, so Hunter’s failure to request findings under that section does not waive his right to appeal this issue. In the same filings mentioned above, the court finds there was sufficient evidence to support the trial court’s finding that the needs of the children — including car, housing, utilities, school lunch and prescriptions for medicine — amounted to more than $1,600 per month. The court does note, however, that it would have been better if the evidence of these expenses was more detailed, or if the trial court differentiated between Hunter’s net monthly resources in excess of $6,000. Nonetheless, the award was not an abuse of discretion. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE:Gray, C.J. “There are two off-setting errors in the Court’s opinion. First, the Court holds the issues were preserved. They were not. Second, the Court holds the trial court could have, sua sponte, considered information in documents in its file without telling anyone that it was going to base its decision on them. It cannot.” The concurrence says it “should make every trial lawyer shudder” that the majority relied on evidence not properly within the scope of review.

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