In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00435-CV
___________________________
IN THE INTEREST OF T.A., A CHILD
On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 2012-50502-367
Before Kerr and Pittman, JJ., and Gonzalez, J. 1
Memorandum Opinion by Justice Pittman
1
The Honorable Ruben Gonzalez, Jr., Judge of the 432nd District Court of Tarrant County,
sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h)
of the Texas Government Code. See Tex. Gov’t Code Ann. § 74.003(h).
MEMORANDUM OPINION
INTRODUCTION
The crux of this infelicitous appeal is whether the trial court erred by including
the sum of $37.37 per month to pay for a child’s dental insurance coverage in a final
order in a suit to modify the parent-child relationship. Ironically, the child’s divorced
parents do not disagree that the father was to pay the child’s dental insurance or even
that the current cost of the child’s dental insurance is $37.37 per month, only whether
the father was to be directly responsible for the insurance or was instead supposed to
reimburse the mother for the cost of the insurance. 2 Although this court has serious
concerns that this appeal is both a drain of the parties’ resources and a waste of the
taxpayers’ time and money, for the reasons set forth below, we reverse the trial court’s
judgment and remand this case to the trial court for further proceedings.
As this court reminded the parties at oral argument, the nature of this appeal
2
brings to mind the sage advice Abraham Lincoln provided to new attorneys over
150 years ago:
Discourage litigation. Persuade your neighbors to compromise
whenever you can. Point out to them how the nominal winner is often
a real loser; in fees, expenses, and waste of time. As a peace-maker; the
lawyer has a superior opportunity of being a good man. There will still
be business enough.
Abraham Lincoln, Lincoln’s Notes for a Law Lecture, in America’s Lawyer-Presidents: From
Law Office to Oval Office 146–47 (Norman Gross ed., 2004) (emphasis in original); cf.
Thomas Jefferson, Autobiography (1821), reprinted in Thomas Jefferson: Writings 53 (Merrill
D. Peterson, ed., 1984) (It is the trade of lawyers “to question everything, yield
nothing, and talk [or write] by the hour.”).
2
BACKGROUND
I. Mother and Father Divorce and Follow-Up with Enforcement and
Modification Actions Related to Their Daughter.
The long journey to this appeal began six years ago, on February 13, 2013,
when the trial court signed a final decree of divorce ending the marriage of Appellant
J.A. (Father) and Appellee A.C. (Mother). Father and Mother had one child, T.A.
(Daughter), who was almost two years old at the time of the divorce.
From the record, it appears that Mother and Father have engaged in
continuous conflict over Daughter since their divorce. A year after the divorce was
granted, on February 17, 2014, Father filed a motion for enforcement of the residency
restriction against Mother; on July 21, 2015, he filed a first amended motion for
enforcement of the residency restriction, for temporary restraining order, for
modification, and for declaratory judgment; and Mother returned fire by filing an
original counterpetition to modify the parent-child relationship a few months later on
September 11, 2015.3
II. Mother and Father Agree that Father Will Provide Dental Insurance for
Daughter.
On October 27, 2015, the trial court held a bench trial on the Enforcement and
Modification Actions. At the bench trial, the parties represented to the trial court that
3
For simplicity, we refer to these actions collectively as the “Enforcement and
Modification Actions.”
3
they had reached an agreement as to all matters except for the drop-off and pick-up
location for Daughter when the parents exchange possession. Before the parties
presented testimony concerning their respective positions regarding the proposed
drop-off and pick-up location, the trial court instructed them to have their agreement
read into the record. The following exchange ensued:
The Court: So might as well get the agreements that you
have out on the table now.
So, Counsel, . . . do you want to call a witness
or—
[Father’s Attorney]: Well—
[Mother’s Attorney]: (Overlapping) I’m happy to—
The Court: —(overlapping) anybody going to recite it in
the record?
[Father’s Attorney]: I was going to say, if we just read the—
The Court: (Overlapping) Okay. And, I’ll say, listen
carefully, because if something is left out
or if a word is wrong in it, you need to
be—bring that to the attention of the
attorneys so that it is corrected. Because
them reciting it in the record and you-all
agreeing to it, it’s pretty much going to
ensure that your agreements will be the
order of the Court. Okay? So if
something—
[Father]: Yes, ma’am.
The Court: —happens, just, I’ll say, correct it for the
attorneys.
[Mother]: Yes, ma’am.
4
[Emphasis added.]
Mother’s attorney then proceeded to recite Mother and Father’s agreement into
the record. With regard to Daughter’s dental insurance, Mother’s attorney stated that
Father’s
insurance enrollment period also opens up on November 1st. He has
agreed to provide his insurance enrollment information to [Mother] so
that they can review the coverages and, if it’s available, add dental and
vision coverage for the child because currently there’s just medical
coverage in place.
[Father] will remain financially responsible for the health
insurance.
Obviously, nothing in this agreement requires Father to reimburse Mother for
Daughter’s dental insurance. Neither Mother nor Father corrected Mother’s
attorney’s recitation of the agreement in the record. In fact, both Mother and Father
testified under oath that Mother’s attorney had correctly recited their agreement into
the record.4
III. Combat Continues for Two More Years, and a Final Order Requiring
Father to Reimburse Mother $37.37 a Month for Dental Insurance is
Signed.
Despite the parties’ “agreement” that was recited into the record and
4
Whether the agreement between Mother and Father was ever reduced to
writing is unknown. Certainly, if the agreement were reduced to writing it would have
clarified much of the confusion in this matter and possibly alleviated the need for this
appeal. In any event, if there was a written agreement, it is not a part of the appellate
record.
5
confirmed by Mother and Father on October 27, 2015, the acrimonious hostilities
continued. In December 2015, Mother filed a combined motion to compel and
motion for sanctions, and in August 2017, she filed a combined motion to compel,
motion to enter final order, and motion for sanctions, asking that Father be
sanctioned for his failure to provide financial information in accordance with the
parties’ agreement. Almost two months later, on October 18, 2017—three years and
eight months after the actions were initiated and almost two years after the bench
trial—the trial court signed the final order in suit affecting parent-child relationship
(Final Order).
The Final Order, which was “APPROVED AS TO FORM ONLY” by
Mother’s and Father’s attorneys, included a paragraph covering dental insurance for
Daughter (the Dental Insurance Reimbursement):
IT IS FURTHER ORDERED THAT [Father] is ORDERED to
pay to [Mother] 100% of the monthly cost of insuring the child with
dental insurance, with the first payment due and payable on the first day
of June, 2016, and a like payment on the same day each month thereafter
in accordance with this order. At the time of the signing of this Order,
the monthly dental insurance obligation for [Daughter] is $37.37. IT IS
ORDERED that such reimbursement insurance payments shall be made
by [Father] to [Mother] in monthly payments of $37.37 through the state
disbursement unit at Texas Child Support Disbursement Unit, P.O. Box
659791, San Antonio, Texas 78265-9791, and then remitted by that
agency to [Mother] for the support of the child.
Father did not file any post-judgment motions or otherwise object to the Final Order
or the Dental Insurance Reimbursement before the trial court. However, whether the
6
Dental Insurance Reimbursement comports with the parties’ agreement recited into
the record at the October 27, 2015 bench trial is the crux of this appeal.
IV. Father Appeals the Final Order’s Requirement that He Reimburse
Mother for Daughter’s $37.37 Per Month Dental Insurance.
Waiting until the last possible day to appeal, Father filed a notice of appeal
challenging the Dental Insurance Reimbursement. In his brief, Father brings one
issue with three parts, contending that the trial court erred in ordering him to
reimburse Mother $37.37 for Daughter’s dental insurance because (1) the October 27,
2015 agreement between the parties did not include an agreement that Father would
reimburse Mother $37.37 per month for Daughter’s dental insurance; (2) the October
18, 2017 Final Order was not an agreed order regarding the provision that Father
would reimburse Mother $37.37 per month for Daughter’s dental insurance; and
(3) there is no evidence or insufficient evidence to support the Dental Insurance
Reimbursement. Mother chose not to file a responsive brief. However, both parties
appeared at oral argument on October 23, 2018. At oral argument, neither Mother
nor Father disputed that Father agreed to be responsible for Daughter’s dental
insurance, only whether Father was to reimburse Mother for such coverage as part of
his monthly child support obligation or instead cover Daughter’s dental insurance
through his own dental insurance plan.
7
DISCUSSION
I. Standard of Review
We review the trial court’s modification of orders governing child support for
an abuse of discretion.5 In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth
2002, pet. denied) (op. on reh’g); see In re A.B.H., 266 S.W.3d 596, 601 (Tex. App.—
Fort Worth 2008, no pet.) (op. on reh’g) (applying standard); see also In re L.R.S.,
No. 02-09-00244-CV, 2011 WL 754406, at *4–6 (Tex. App.—Fort Worth Mar. 2011,
no pet.) (mem. op.) (applying abuse-of-discretion standard to issues related to
children’s dental insurance in appeal of modification and enforcement order). A trial
court abuses its discretion if it acts arbitrarily and unreasonably or without reference
to guiding principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007). A trial court also abuses its discretion when it does
not analyze or apply the law properly. Iliff, 339 S.W.3d at 78. Legal and factual
sufficiency are not independent grounds of error in modification cases, but they are
relevant factors in deciding whether the trial court abused its discretion. T.D.C.,
91 S.W.3d at 872.
5
For suits affecting the parent-child relationship filed on or after September 1,
2018, the Texas Legislature has expressly stated that a parent’s child-support
obligation includes the costs of dental insurance. See Tex. Fam. Code Ann.
§ 154.183(a)(2).
8
Evidence is legally insufficient if (1) the record discloses a complete absence of
evidence of a vital fact, (2) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo,
444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In comparison, when we review the
factual sufficiency of the evidence, we will set aside the finding only if, after
considering and weighing all of the evidence in the record pertinent to that finding,
we determine that the credible evidence supporting the finding is so weak, or so
contrary to the overwhelming weight of all the evidence, that the answer should be set
aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).
In determining whether there has been an abuse of discretion because the
evidence is legally or factually insufficient to support the trial court’s decision, we
engage in a two-pronged inquiry: (1) Did the trial court have sufficient information
upon which to exercise its discretion and (2) did the trial court err in its application of
discretion? T.D.C., 91 S.W.3d at 872.
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II. There is No Evidence Supporting the Trial Court’s Decision to Order
Father to Reimburse Mother $37.37 Per Month for Daughter’s Dental
Insurance.
In the third subpart of Father’s issue on appeal, he argues that there is no
evidence, or alternatively, insufficient evidence supporting the trial court’s findings
that he must reimburse Mother $37.37 per month for Daughter’s dental insurance.
To resolve this issue, we must determine whether, based on the elicited evidence, the
trial court abused its discretion. See In re H.S., No. 02-17-00379-CV,
2018 WL 5832120, at *6 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.).
We thoroughly examined the record in this case and conclude that Father’s no-
evidence complaint has merit. At the October 27, 2015 bench trial and at oral
argument before this court, the parties conceded that Father was responsible for
Daughter’s dental insurance. However, no evidence in the record suggests or
supports the finding that Father agreed to reimburse Mother for such coverage or that
the amount of such coverage was $37.37 per month, as the Final Order reflects.
Accordingly, no evidence supports the trial court’s finding that Father reimburse
Mother the sum of $37.37 per month for Daughter’s dental insurance. As a result, we
hold, on this record, that the trial court abused its discretion by including the Dental
Insurance Reimbursement in the Final Order.
We sustain the third subpart of Father’s issue on appeal, which is dispositive,
and do not reach the first two subparts. See Tex. R. App. P. 47.1.
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CONCLUSION
It is with great consternation that, having sustained the third, dispositive
subpart of Father’s sole issue, we reverse the trial court’s Final Order with regard to
the Dental Insurance Reimbursement and remand this case to the trial court to
conduct further proceedings and render a final order consistent with the evidence or
the parties’ agreement.6 See Tex. R. App. P. 43.2(d), 43.3.
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Delivered: May 16, 2019
6
On remand, we are confident that Mother, Father, and their respective
attorneys will be able to communicate promptly and effectively to resolve these
prolonged proceedings with a minimum of judicial involvement. Cf. John F. Kennedy,
Great Quotes from Great Leaders 87 (Peggy Anderson comp., 1990) (“Let us never
negotiate out of fear but let us never fear to negotiate.”). In doing so, the attorneys
are encouraged to remember their various obligations as members of the Texas Bar,
such as, “I will be loyal and committed to my client’s lawful objectives, but I will not
permit that loyalty and commitment to interfere with my duty to provide objective
and independent advice”; “I will advise my client that we will not pursue conduct
which is intended primarily to harass or drain the financial resources of the opposing
party”; and “I will not quarrel over matters of form or style, but I will concentrate on
matters of substance.” Texas Lawyer’s Creed—A Mandate for Professionalism, reprinted in
Texas Rules of Court 735–37 (West 2018); see also Dondi Properties Corp. v. Commerce Sav.
& Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1988) (en banc) (“We attempt to carry
out our responsibilities in the most prompt and efficient manner, recognizing that
justice delayed, and justice obtained at excessive cost, is often justice denied.”).
11