(d) The continuation of maintenance ordered under Subsection (b) is subject to a motion to modify as provided by Section 8.057. Tex. Fam. Code Ann. § 8.054(b)–(d). Section 8.057, concerning motions to modify the amount of previously ordered spousal maintenance, is not relevant in this case. Current section 8.051(2)(A) prescribes, as one possible eligibility criterion, that a spouse may be granted maintenance if the spouse “is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability.” Id. § 8.051(2)(A).
2. Judicial interpretations of Chapter 8 as it relates to motions to continue spousal maintenance
The question presented in this case is whether the trial court had jurisdiction to consider Stephanie’s motion to modify, which was in substance a motion to continue maintenance beyond the court-ordered termination date. The statutes do not clearly address either the propriety of a motion to continue spousal maintenance beyond a court-ordered termination date or the jurisdiction of the trial court to entertain such a motion when it is filed so long after the signing of the original maintenance order that all postjudgment deadlines have expired.
We touched on these issues in the factually similar Hackenjos case. In the final divorce decree in that case, the trial court found that the ex-husband was permanently disabled, awarded him spousal maintenance for three years, and placed the burden on him to seek continuation of maintenance beyond the three-year limit. 204 S.W.3d at 908. Like Stephanie, the ex-husband in Hackenjos filed a motion to continue maintenance shortly before the expiration of the term set in the divorce decree. Id. Like the trial judge in this case, the trial judge in Hackenjos denied the ex-husband’s motion on the ground that the trial court lacked authority to grant the motion. Id. The ex-husband appealed. Construing the pre-2011 version of Chapter 8 of the Family Code, we said, “the language of the divorce decree controls whether a party may file a motion to continue maintenance.” Id. at 909. If the award of maintenance is based on section 8.054(b), which permitted (and still permits) an award of indefinite duration based on either the spouse’s or a child’s disability, then a motion to continue maintenance is permitted, and the trial court has authority to consider it. See id. at 909–10. We implied that a motion to continue maintenance would be improper, and that the trial court would lack authority to consider such a motion, if the award of maintenance were made under section 8.054(a), which then imposed a three-year time limit. See id. at 909 (“First, we must determine whether the trial court ordered spousal maintenance pursuant to section 8.054(a) or (b).”). Considering the language of the maintenance order in the divorce decree, we held that the order had been rendered under section 8.054(b), notwithstanding the specific time limit imposed in the order, because of the finding that the ex-husband was permanently disabled and because of the provision that ex-husband would have the burden of moving to continue the spousal maintenance. Id. at 910. Accordingly, we held that the trial court had the authority to consider the motion to continue maintenance, and we reversed the denial of the motion and remanded for further proceedings. Id.
The Austin Court of Appeals recently applied a similar test, although it did so under the rubric of res judicata rather than the trial court’s jurisdiction or “authority” to consider a motion to continue spousal maintenance. In O’Carolan v. Hopper, the original divorce decree became final in the year 2000, and the trial court awarded ex-wife O’Carolan spousal maintenance for twenty-four months. No. 03-10-00407-CV, 2013 WL 5477469, at *1 (Tex. App.—Austin Sept. 27, 2013, no pet. h.). O’Carolan appealed, and the court of appeals reversed in 2002 for a new property division. Id. at *2. On remand, O’Carolan filed a request to continue the spousal maintenance on account of her continuing disability. Id. at *2, 10–12. The trial court granted summary judgment against O’Carolan on res judicata grounds, id. at *11–12, and she appealed. The court of appeals agreed with ex-husband Hopper that O’Carolan was not eligible for an extension of spousal maintenance because the terms of the divorce decree did not show that the trial court intended for the award of maintenance to be subject to continuation under section 8.054(b). Id. at *14. Specifically, the divorce decree awarded O’Carolan maintenance for only two years (within the section 8.054(a) maximum), the trial judge made no finding that O’Carolan suffered from an incapacitating physical or mental disability as required by former section 8.054(b), and the trial judge did not include a term providing for future review of the award under section 8.054 for possible continuation. Id. In light of these facts, plus the fact that the original divorce decree awarded O’Carolan only maintenance in lieu of a community-property award, the court of appeals held that the divorce decree was not eligible to be continued, and it constituted res judicata of the issue of spousal maintenance. Id. at *15.
A few other cases support the proposition that an award of spousal maintenance is subject to continuation by motion if the decree affirmatively shows that the judge intends for the award to be subject to continuation under section 8.054(b). In Carlin v. Carlin, the divorce decree contained an award of maintenance to the ex-wife for a period of three years, “unless [she] continues to be unable to support herself at appropriate employment because of the incapacitating physical disability which the Court finds she is subject to.” 92 S.W.3d 902, 903 (Tex. App.—Beaumont 2002, no pet.). Based on the quoted proviso in the decree, the court of appeals treated the ex-wife’s “Motion For Extension Of Alimony” as a proper request for continuation of maintenance under section 8.054(b), although it ultimately held that she had failed to introduce sufficient evidence to support an award of continued maintenance. Id. at 904– 05, 911; see also Dunn v. Dunn, 177 S.W.3d 393, 395–97 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (concerning divorce decree that awarded spousal maintenance for only six months but apparently mentioned section 8.054(b) specifically as the basis for the maintenance award). In Crane v. Crane, the court of appeals held that an award of spousal maintenance for over three years was implicitly based on section 8.054(b) because section 8.054(a) imposed a maximum limit of three years. 188 S.W.3d 276, 281 (Tex. App.—Fort Worth 2006, pet denied).
From these cases, then, we can glean the following rules. An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuation only if the decree indicates that the trial judge intended to make the award pursuant to section 8.054(b) rather than section 8.054(a). See O’Carolan, 2013 WL 5477469, at *14–15; Hackenjos, 204 S.W.3d at 909–10. The necessary intent can be shown by a specific finding of disability plus a provision that the beneficiary of the award has the burden of seeking continuation of maintenance beyond a court-ordered termination date. See Hackenjos, 204 S.W.3d at 910; Carlin, 92 S.W.3d at 903. The necessary intent can also be shown by a specific reference to section 8.054(b), see Dunn, 177 S.W.3d at 395, or by the fact that the award exceeds the maximum duration permitted by section 8.054(a), see Crane, 188 S.W.3d at 281. But an award that is within the maximum duration permitted by section 8.054(a), that does not refer to section 8.054(b), and that is accompanied by neither a finding of disability nor a provision for future review or continuance is presumed to be made under section 8.054(a) and is not subject to extension.[1] See O’Carolan, 2013 WL 5477469, at *15.
Finally, we have reviewed the 2011 amendments to section 8.054, and we conclude that those amendments do not change the rules established in these cases. See generally Tex. Fam. Code Ann. § 8.054. Section 8.054(a) still prescribes absolute time limits for spousal maintenance orders, “[e]xcept as provided by Subsection (b).” Id. § 8.054(a). Section 8.054(b) still provides that a trial court may order maintenance for an indefinite duration lasting as long as the beneficiary spouse suffers from an incapacitating physical or mental disability or is the custodian of a disabled child of the marriage such that the spouse cannot support himself or herself. See id. §§ 8.054(b), 8.051(2). New section 8.054(c) now contains former section 8.054(b)’s authorization for the trial court to consider a party’s request for a “periodic review” of a maintenance order “under Subsection (b).” Id. § 8.054(c). In short, the essential elements of the statutory scheme supporting the cases discussed above remain in place after the 2011 amendments, and those cases remain good law.
C. Application of the law to the facts
We next examine the award of spousal maintenance in the divorce decree to ascertain whether the trial judge intended to make that award under section 8.054(a), thus making the award not eligible for extension, or under section 8.054(b), which would make the award eligible for extension. See Hackenjos, 204 S.W.3d at 909.
Under the version of section 8.054(b) in effect at the time the trial judge signed the divorce decree, spousal support for an indefinite period could be awarded if the spouse suffered from “an incapacitating physical or mental disability.” Act of May 25, 2005, 79th Leg., R.S., ch. 914, § 3, 2005 Tex. Gen. Laws 3146, 3147 (amended 2011) (current version at Tex. Fam. Code Ann. § 8.054 (West Supp. 2012)). In this case, the trial judge who signed the divorce decree found that Stephanie was “presently disabled” but did not find that her disability was “incapacitating.” The trial judge who granted Andrew’s motion to dismiss relied on this omission as support for her conclusion that she did not have jurisdiction to consider Stephanie’s motion to continue the spousal-maintenance payments. We agree that the language of the disability finding, standing alone, does not show that the original trial judge awarded Stephanie spousal maintenance under section 8.054(b). The judge’s finding that Stephanie was “presently disabled” could indicate that the judge was considering and relying in part on Stephanie’s “physical and emotional condition” under section 8.052(4), or it could be a reference to section 8.054(a)(2)(A). A finding of present disability rather than “incapacitating” disability, without more, does not show an intent to award maintenance under section 8.054(b).
Other factors also support the trial judge’s interpretation of the original spousal-maintenance order. If the spousal-maintenance order had been for an indefinite period or for a period longer than three years, this fact would have tended to show that the original trial judge was acting under section 8.054(b) rather than section 8.054(a). See Crane, 188 S.W.3d at 281. But the order did not contain such terms. Instead, the spousal-maintenance order was for a definite term of two years, which was less than the maximum duration permitted by section 8.054(a). The original trial judge could have signaled an intention to act under section 8.054(b) by including a provision expressly recognizing Stephanie’s right or obligation to file a motion to continue maintenance if she believed she qualified for such a continuation. See Hackenjos, 204 S.W.3d at 910; Carlin, 92 S.W.3d at 903. But the judge did not include such a provision. On its face, the award of spousal maintenance ends after twenty-four months, and it contains no provision expressly recognizing a possibility of extension.
In sum, the only part of the spousal-maintenance order that suggests the trial judge might have been proceeding under section 8.054(b) is the finding that Stephanie was “presently disabled” at the time. Stephanie relies on In re Brunin, No. 04-04-00893-CV, 2005 WL 839531 (Tex. App.—San Antonio Apr. 13, 2005, orig. proceeding) (mem. op.), for the proposition that the Family Code does not require an express finding of incapacitating disability in a spousal-maintenance order to qualify for potential continuation under section 8.054(b). Although this is true, there must be some indication in the order that the trial judge intends to make the order under section 8.054(b) beyond a finding that the beneficiary spouse is “presently disabled.” In Brunin, for example, the original maintenance order expressly provided that the beneficiary spouse could move for continuation at the end of the two-year term that was awarded. Id. at *1. The order in the instant case contains no such provision.
Based on the language of the spousal-maintenance order as a whole, we conclude that the trial judge correctly construed the order as an award of maintenance under section 8.054(a). Accordingly, the award was not eligible to be continued under section 8.054(b), and the trial judge properly granted Andrew’s motion.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment.
JUDGMENT
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Andrew A. Shervin recover his costs of this appeal from appellant Stephanie Ann Novick.
———
