in the Interest of L.K. and O.K., Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00049-CV
___________________________

IN THE INTEREST OF L.K. AND O.K., CHILDREN

On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 14-09269-393

Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

Appellant K.A.K. (Mother), the mother of the two children who are associated

with this appeal, appeals the trial court’s orders that require her to pay attorney’s fees

to the children’s paternal grandparents, D.L.K.1 and M.A.K. (the Grandparents). The

attorney’s fees result from the trial court’s decision to grant the Grandparents’ motion

for enforcement of an agreed order that required Mother to reimburse the

Grandparents for 25% of the uninsured portion of the children’s health-care expenses

within thirty days after Mother “receive[d] the forms, receipts, bills, statements, and

explanations of benefits” relating to the expenses. Mother contends, in part, that her

obligation to reimburse the Grandparents within any specific time never arose

because she never received the explanations of benefits. Under the plain language of

the agreed order, we agree. We therefore hold that the trial court abused its discretion

by awarding attorney’s fees in connection with the Grandparents’ enforcement

motion, and we reverse the trial court’s attorney’s fees orders.

Background

In 2016, the Grandparents filed a petition to modify a final divorce decree that

concerned the marriage of Mother and A.C.K. (Father). The trial court, through an

order agreed to by the Grandparents, Mother, and Father, named the Grandparents

joint managing conservators of the children, giving them the right to designate the

1
D.L.K. (Grandmother) is the children’s paternal step-grandmother.

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children’s residence. The trial court named Mother and Father as possessory

conservators. The agreed order contained the following provisions concerning the

children’s healthcare:

Health Care

1. IT IS ORDERED that [the Grandparents, Mother, and Father]
shall each provide medical support for each child as set out in this order
as additional child support . . . .

....

4. Provision of Health-Care Coverage –

As child support, [the Grandparents] are ORDERED to obtain,
within 30 days after entry of this order, health insurance for each child
who is the subject of this suit . . . .

....

Pursuant to section 154.183(c) of the Texas Family Code, the
reasonable and necessary health-care expenses of the children that are
not reimbursed by health insurance are allocated as follows:
[Grandparents are ORDERED] to pay 50 percent, [Mother] is
ORDERED to pay 25 percent, and [Father] is ORDERED to pay 25
percent . . . .

The party who incurs a health-care expense on behalf of a child is
ORDERED to furnish[2] to the other party all forms, receipts, bills,

2
Another part of the agreed order defined “furnish” to include three types of
delivery: (1) hand delivery; (2) delivery by certified mail, return receipt requested; or
(3) delivery using “any person or entity whose principal business is that of a courier or
deliverer of papers or documents either within or outside the United States.” Mother
argues that because the Grandparents sent the children’s medical bills to her by e-
mail, they did not “furnish” the bills to her in accordance with the agreed order, and
her duty to pay her share of the children’s medical expenses did not arise. Based on
our analysis below that requires reversal for an independent reason, we do not reach
that argument.

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 statements, and explanations of benefits reflecting the uninsured portion
of the health-care expenses within thirty days after he or she receives
them. The nonincurring party is ORDERED to pay his or her percentage of the
uninsured portion of the health-care expenses either by paying the health-care
provider directly or by reimbursing the incurring party for any advance
payment exceeding the incurring party’s percentage of the uninsured
portion of the health-care expenses within thirty days after the nonincurring
party receives the forms, receipts, bills, statements, and explanations of benefits.
[Emphasis added.]

In August 2017, the Grandparents filed a motion for the trial court to enforce

the agreed order’s provisions concerning the children’s healthcare. The Grandparents

alleged that Mother had violated the agreed order by failing to pay her share of the

children’s uninsured medical expenses. More specifically, the Grandparents asserted

that they had incurred twenty-five separate expenses of which Mother had not paid

her share and alleged that she owed a total of $1,251.55. Finally, the Grandparents

pleaded for an award of attorney’s fees.

In September 2017, Mother filed a response to the Grandparents’ motion. In

part, she averred that between the time that the Grandparents filed their motion and

the time she filed her response, she had paid the amount of medical expenses pleaded

for by the Grandparents.

The trial court held a hearing on the Grandparents’ enforcement motion. At

the hearing, the Grandparents conceded that Mother had paid the requested expenses

and stated that the “only open issue [was] attorney’s fees.” Mother testified that she

had delivered a check to the Grandparents for the expenses. Mother further

contended that she was never obligated to pay the requested expenses under the terms
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of the agreed order because the Grandparents did not comply with provisions

concerning when and how to inform her of the expenses. She testified that the

Grandparents had never delivered bills for the expenses to her by hand, through

certified mail, or to her address using a courier or deliverer of papers. Rather, she

testified that she had received all of the bills through e-mail; Grandmother conceded

the same. Further, Mother testified that she had received some of the bills later than

thirty days after the Grandparents had received them. Finally, Mother testified that

she had never received any explanations of benefits (EOBs) from Grandmother, and

Grandmother testified that she had never sent any EOBs to Mother.

Mother also asserted that the Grandparents had agreed to allow her to delay

paying the expenses until after she had received a tax refund and that she had paid the

expenses at her “first opportunity” after receiving it. For this assertion, Mother relied

on the contents of an e-mail exchange with D.L.K. (Grandmother). Mother testified

that she received the tax refund on September 7, 2017 and paid the expenses to the

Grandparents days later. Grandmother testified that she did not intend for her e-mail

response to qualify as an agreement to delay Mother’s responsibility to pay the

medical bills.

After hearing the parties’ evidence and arguments, the trial court found that

Mother had violated the agreed order by failing to pay the “full amount of uninsured

medical expenses . . . in a timely manner.” [Emphasis added.] The trial court did not

order Mother to pay any medical expenses, as they had all been paid, but the trial
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court required her to pay $5,774 in attorney’s fees and costs. The court ordered her to

pay either the full amount of $5,774 at once or to pay that amount at the rate of $150

per month. The court made findings of fact that detailed sixteen expenses that Mother

had failed to timely pay, but the court also found that she had later paid the expenses.

Mother filed a notice of appeal. The Grandparents then sought an additional

award of attorney’s fees for defending against Mother’s appeal. Following a hearing,

the trial court ordered Mother to pay $21,5003 in appellate attorney’s fees, conditioned

on Mother’s “pursuit of an ultimately unsuccessful appeal.” Mother filed another

notice of appeal.

The Attorney’s Fees Awards

On appeal from the trial court’s awards of attorney’s fees, Mother raises twelve

points. We construe those twelve points as comprising six independent arguments:

(1) the trial court could not award attorney’s fees without requiring her to pay medical

expenses that remained unpaid at the time of the trial court’s order (first point);

(2) the court could not award attorney’s fees for her failure to timely pay medical

expenses because the Grandparents did not prove the fulfillment of “conditions

precedent” to her duty to pay, including presenting her with bills and EOBs for the

expenses within a certain time and through certain means (second through fourth and

seventh points); (3) the court could not award attorney’s fees because the

The court ordered that Mother would be entitled to remittiturs from this
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amount if her appeal did not reach certain stages of the appellate process.

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Grandparents created “confusion” by agreeing to allow Mother to delay paying the

expenses or by agreeing to forgive her payment of some of the expenses (fifth, sixth,

eighth, and ninth points); (4) the court’s initial award of $5,774 in attorney’s fees was

“excessive” (tenth point); (5) the court exceeded its authority by, in its order requiring

Mother to pay $5,774 in attorney’s fees, giving her the option of paying $150 per

month (eleventh point); and (6) the court erred by awarding appellate attorney’s fees

because the Grandparents asked for the trial court to order such fees in its initial

order, the trial court did not do so, and res judicata prevented the award in the second

order (twelfth point). For the reasons explained below, we sustain Mother’s second

argument and decline to consider her other arguments. See Tex. R. App. P. 47.1; Busby

v. Harvey, 551 S.W.3d 184, 193 n.11 (Tex. App.—Fort Worth 2017, no pet.).

We review a trial court’s order relating to the enforcement of a child support

obligation for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990); In re K.M.J., No. 02-09-00303-CV, 2011 WL 3525439, at *1 (Tex. App.—Fort

Worth July 28, 2011, no pet.) (mem. op.). “The test for abuse of discretion is whether

the trial court acted without reference to any guiding rules or principles; in other

words, whether the act was arbitrary or unreasonable.” Worford, 801 S.W.2d at 109.

The trial court awarded attorney’s fees under chapter 157 of the family code.

One provision of chapter 157 provides that if a trial court “finds that the respondent

has failed to make child support payments, the court shall order the respondent to pay

the movant’s reasonable attorney’s fees and all court costs in addition to the
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arrearages.” Tex. Fam. Code Ann. § 157.167(a) (West 2014). Under chapter 157, an

order enforcing a child support obligation must include “the acts or omissions that are

the subject of the order” and the “manner of the respondent’s noncompliance.” Id.

§ 157.166(a)(2)–(3) (West 2014). “The movant on a motion to enforce a child-support

order, including an order to provide medical support, has the burden of establishing

the amount of support owed.” In re E.G., No. 02-16-00302-CV, 2017 WL 3821862, at

*2 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op.).

In its enforcement order, the trial court found that Mother had violated the

prior agreed order by “failing to pay to [the Grandparents] the full amount of

uninsured medical expenses due by [Mother] in a timely manner.” [Emphasis added.]

Accordingly, the court ordered Mother to pay attorney’s fees. The court recognized

that Mother had eventually paid the expenses.

The agreed order created parameters for the timeliness of Mother’s payment of

medical expenses. It stated that Mother was to pay her percentage of the expenses

“within thirty days after [she] receive[d] the forms, receipts, bills, statements, and[4]

[EOBs].” [Emphasis added.]

4
“And” is a conjunctive word; the word is not interchangeable with “or.” In re
Brookshire Grocery Co., 250 S.W.3d 66, 69–70 (Tex. 2008) (orig. proceeding); see also
Anheuser-Busch, L.L.C. v. Harris Cty. Tax Assessor-Collector, 516 S.W.3d 1, 8 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied) (relying on the conjunctive nature of
“and” to hold that a statute required a tax assessor to send a tax bill “to both the
person in whose name the property is listed on the tax roll (the property owner) and
its authorized agent, if any has been duly appointed”).

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 Texas appellate courts have repeatedly held that when child-support orders

condition obligations to provide support on events that do not occur, trial courts do

not have authority to grant enforcement of the obligations. For example, in E.G., a

mother appealed a trial court’s denial of her request for reimbursement of medical

expenses under a divorce decree. 2017 WL 3821862, at *2. The father contended that

the mother was not entitled to reimbursement because she had “failed to present

evidence that she complied with the requirements of the divorce decree in order to

receive [those] monies.” Id. at *2. Similar to the agreed order in this case, the decree in

that case stated, “[T]he party who pays for a health-care expense on behalf of [the

child] shall furnish to the other party, within thirty days of receiving them, all forms,

receipts, bills, and explanations of benefits paid reflecting the uninsured portion of the

health-care expenses the paying party incurs on behalf of [the child].” Id. We held that

because the mother provided no evidence that she had furnished the forms, receipts,

bills, and EOBs to the father, the father’s reimbursement obligation never arose. Id. at

*2–3. We explained, “The language in the decree put an affirmative obligation on [the

mother] as the paying party to provide [the father], the nonpaying party, with

documentation of what [the mother] actually paid before imposing any obligation on

[the father] to reimburse [the mother] for her share.” Id. at *3. Our sister intermediate

appellate courts have reached similar conclusions in several cases. See In re C.P.K., No.

07-17-00287-CV, 2018 WL 2170821, at *3 (Tex. App.—Amarillo May 10, 2018, no

pet.) (mem. op.) (holding that a trial court did not abuse its discretion by not awarding
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a mother arrearages for health insurance payments because the mother did not, as

required by an agreed order, provide the father with proof of the expenses); In re

M.S.C., No. 05-14-01581-CV, 2016 WL 929218, at *5 (Tex. App.—Dallas Mar. 11,

2016, no pet.) (mem. op.) (holding that “[the mother’s] obligation to reimburse [the

father for medical expenses] was never triggered” because the father did not send

documents reflecting the uninsured portion of expenses as required by the divorce

decree); In re I.O.K., No. 05-13-01201-CV, 2014 WL 3939379, at *1–3 (Tex. App.—

Dallas Aug. 13, 2014, no pet.) (mem. op.) (concluding that a trial court abused its

discretion by holding a father in contempt for failing to pay children’s medical

expenses when the divorce decree required the mother to provide receipts, bills,

statements, and EOBs within thirty days after she received them, and she did not); In

re T.J.L., 97 S.W.3d 257, 267 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(holding that a trial court did not abuse its discretion by finding that a mother was

100% responsible for healthcare expenses when the court found that she did not

timely submit expenses to the father “as required to obtain reimbursement”).

At the hearing on the Grandparents’ enforcement motion, Mother testified that

she never received EOBs stating what expenses the children’s insurance paid. She

averred that therefore, she could not determine “positively . . . from the bills that [she]

received . . . how much . . . [she was] required to pay.” Grandmother testified that she

never sent EOBs to Mother because she did “not believe that was in [the] court

paperwork.” It was. Based on the cases cited above, we hold that the trial court
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abused its discretion by granting the Grandparents’ enforcement motion and by

awarding attorney’s fees because Mother never received any EOBs, and she therefore

did not fail to perform her obligation under the agreed order to reimburse the

Grandparents within thirty days after receiving the EOBs. See Worford, 801 S.W.2d at

109; E.G., 2017 WL 3821862, at *2–3.

The Grandparents present two arguments to the contrary. First, they argue that

Mother failed to properly brief her argument. See Tex. R. App. P. 38.1(i) (“The brief

must contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.”). We should decide an appeal on its merits

if “the brief, through liberal construction, sufficiently acquaints us with the issues.”

Hernandez v. Rockwater Energy Sols., Inc., No. 02-17-00302-CV, 2018 WL 4496149, at *2

(Tex. App.—Fort Worth Sept. 20, 2018, no pet. h.) (mem. op.). Mother’s brief, at least

with respect to her second through fourth and seventh issues, does so.5 Mother

provides a concise argument and cites relevant authorities, including T.J.L., which we

rely on above. We decline to hold that Mother waived her second through fourth and

seventh issues by inadequately briefing them. See id.; see also Perry v. Cohen, 272 S.W.3d

585, 587 (Tex. 2008) (“Simply stated, appellate courts should reach the merits of an

appeal whenever reasonably possible.”).

5
On other issues within Mother’s brief that we do not reach, she cites no
authority to support her arguments.

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 Second, the Grandparents contend that Mother’s argument asserts a defense of

“condition precedent” and that she waived the defense by failing to request a finding

on it. The record belies the Grandparents’ assertion that Mother did not request a

finding from the trial court on the contention that she now presents to this court.

Mother asked the trial court to find that the Grandparents’ failure to comply with

their duties under the agreed court order could “be a basis for denying in whole or in

part any award of attorney[’s] fees.”6 Later, Mother filed proposed findings of fact and

conclusions of law, and she asked the trial court to make the following conclusions:

3. [The Grandparents] failed to satisfy the condition precedent
that they furnish [Mother] the forms, receipts, bills, statements, and
explanations of benefits by hand delivery, certified mail or courier.

4. [The Grandparents] failed to satisfy the condition precedent
that they furnish [Mother] the forms, receipts, bills, statements, and
explanations of benefits within 30 days of incurring same.

5. No attorney fees are available to [Mother] as [the
Grandparents] failed to satisfy conditions precedent to their seeking
enforcement.

Furthermore, as explained above, the Grandparents, as the movants for

enforcement of the agreed order, had the burden to establish that Mother owed

reimbursement. See E.G., 2017 WL 3821862, at *2. The Grandparents’ compliance

with their obligations under the agreed order was an element of the their own burden,

6
In a docket entry, the court found that the Grandparents’ duties under the
agreed order were not conditions precedent but that “failure to comply with the
[conditions] can be a basis for denying in whole or in part any award of attorney[’s]
fees.”

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not a defense on which Mother carried the burden. See id.; M.S.C., 2016 WL 929218,

at *5; see also Hogan v. Goldsmith, 533 S.W.3d 921, 924 (Tex. App.—Eastland 2017, no

pet.) (stating that a party seeking to recover on an obligation has “the burden to prove

that all conditions precedent have been satisfied”). Thus, we reject the Grandparents’

argument that Mother waived a defense by failing to request findings on it.

For all of these reasons, we hold that the trial court abused its discretion by

granting the Grandparents’ motion for enforcement and by awarding them attorney’s

fees. We sustain Mother’s second through fourth and seventh issues.

Conclusion

Having sustained Mother’s second, third, fourth, and seventh issues, which are

dispositive, we reverse the trial court’s “Order on Motion for Enforcement of Child

Support Order” and its “Order on Motion for Additional Orders on Motion for

Enforcement of Child Support.” We remand this case for further proceedings

consistent with this opinion.

/s/ Wade Birdwell
Wade Birdwell
Justice

Delivered: November 8, 2018

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