Opinion by: Karen Angelini, Justice

Concurring opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

Michele Tyler appeals from the trial court's denial of her motion to modify spousal maintenance, arguing that the evidence is insufficient to support the trial court's judgment. We disagree and affirm the judgment of the trial court.

Michele Tyler and Eddie D. Talburt were married for more than ten years before they divorced in September of 1997. At the time of their divorce, Talburt suffered from a congenital kidney disease and was awaiting a kidney transplant. Due to Talburt's physical condition, the trial court ordered in the final decree that Tyler pay Talburt spousal maintenance in the amount of $456.00 per month "during the period of Eddie D. Talburt's continuing incapacitating physical, or mental disability, or until further orders of this Court." The trial court also ordered that "the court shall review the maintenance provisions of this Decree after Eddie D. Talburt receives a kidney transplant at two (2) month intervals at the motion of either party hereto."

On April 4, 1999, Talburt received his kidney transplant. In September of 2001, Tyler filed a petition to modify spousal maintenance, arguing that Talburt no longer had an incapacitating physical or mental condition and had not had any such disability since December 1, 1999. On December 18, 2001, the trial court heard Tyler's motion to modify, and after hearing testimony from both parties, denied Tyler's motion.

On appeal, Tyler argues that the evidence is legally and factually insufficient to support the trial court's judgment. However, where the trial court awards spousal maintenance, the appropriate standard of review is abuse of discretion. Amos v. Amos, 79 S.W.3d 747, 749 (Tex. App.--Corpus Christi 2002, no pet.); see also In re K.T., No. 04-02-00043-CV, 2003 WL 1090593, at *7-8 (Tex. App.--San Antonio Mar. 12, 2003, no pet. h.) (en banc) (holding that in context of trial court's juvenile disposition order, abuse of discretion standard--divorced from evidentiary standards of legal and factual sufficiency--is appropriate standard of review). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Amos, 79 S.W.3d at 749.

Section 8.051 of the Texas Family Code provides that the trial court may order maintenance for either spouse only if the duration of the marriage was ten years or longer, the spouse seeking maintenance lacks sufficient property to provide for his minimum reasonable needs, and the spouse seeking maintenance is unable to support himself through appropriate employment because of an incapacitating physical or mental disability. See Tex. Fam. Code Ann. § 8.051(2) (Vernon Supp. 2003). At the hearing on Tyler's motion to modify spousal maintenance, Tyler had the burden of showing "a material and substantive change in circumstances of either party." Id. § 8.057(c). On appeal, Tyler argues that the trial court abused its discretion in determining that she had failed in her burden, because (1) Talburt no longer suffers from an incapacitating physical disability and is able to support himself through appropriate employment and (2) he has sufficient property to provide for his minimum reasonable needs.

Tyler emphasizes that Talburt has had a successful kidney transplant and is able to work full time. Talburt, however, did not testify that he could work full time, but only that he could possibly work full time:

Q: But you could work a full-time job right now, correct?

A: Possibly.

Q: Okay. I believe you testified before that you could; is that true?

A: I'm not a hundred percent sure. ⁽²⁾

Regarding his physical disability, Talburt testified that although his health is better than it was while he was undergoing dialysis treatment, he still gets tired and has a weak immune system. Talburt admitted that one of the main reasons he has not attempted to work is because if he earns too much money, he will not qualify for federal assistance. And, if he cannot qualify for federal assistance, he could not afford the necessary medical treatment for his kidney condition. Besides Talburt's testimony, there was no other evidence regarding his ability to work or his current physical condition. Given this evidence, the trial court was authorized to find that Talburt is still suffering from an incapacitating physical disability and that he is still unable to support himself through appropriate employment.

Tyler also argues that Talburt now has sufficient property to provide for his minimum reasonable needs. Although Talburt received a personal injury settlement of $21,000.00, he testified that with that money, he purchased two four-wheelers, a travel trailer that he planned to live in, and twenty acres of land. Including Tyler's maintenance payment, Talburt's income is a little over $2300 per month. Although the Kidney Foundation currently helps him with the cost of his prescription drugs, in three or four months, he will no longer qualify for this aid. According to Talburt, he will then be liable for his medical costs of between $15,000 to $20,000 per year. And, Talburt testified, in a month, he was going to have another surgery to determine why he was suffering from internal bleeding. Given this evidence, the trial court was authorized to find that Talburt still does not have sufficient property to provide for his minimum reasonable needs.

Given Talburt's current monthly income and his substantial medical costs, the trial court did not abuse its discretion in denying Tyler's motion to modify.

Having overruled Tyler's issue, we affirm the judgment of the trial court.

Karen Angelini, Justice

1. The Honorable Martha Tanner presided over the hearing on the motion to modify spousal maintenance. The Honorable David Peeples signed the judgment from which Tyler appeals.

2. During the hearing, Tyler's counsel states that Talburt had earlier testified that he could work full time. Talburt, however, was not impeached with that testimony, and it is not a part of the record of this appeal.