Roisman v. Roisman (In re Roisman)

651 S.W.3d 419

IN RE Dani ROISMAN, Relator

Dani Roisman, Appellant

v.Gavriella Etana Roisman, Appellee

NO. 01-20-00828-CV

NO. 01-21-00093-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 17, 2022

Ashley V. Tomlinson, Laura D. Dale, 1800 Saint James Place, Ste. 620, Houston, Texas 77056, for Relator / Appellant.

Michael V. Brophy, 10701 Corporate Drive, Ste. 172, Stafford, Texas 77477, for Real Party in Interest / Appellee.

Panel consists of Justices Hightower, Countiss, and Guerra.

Richard Hightower, Justice This appeal and original proceeding arise from an enforcement action for medical child support filed by Gavriella Etana Roisman against her ex-husband, Dani Roisman. Gavriella sought to hold Dani in contempt for allegedly violating certain provisions of the couple's Agreed Final Decree of Divorce (Agreed Divorce Decree) by refusing to pay his share of health-care expenses Gavriella incurred for the in-patient psychiatric treatment of their daughter, Jane (a pseudonym), at two medical facilities, which were out-of-network providers under their health insurance plan. Gavriella also requested confirmation of the amount of the arrearages Dani owed her for the health-care expenses and a cumulative money judgment against Dani for the arrearages. In addition, Gavriella requested her attorney's fees.

Following a hearing, the trial court signed an enforcement order (1) holding Dani in contempt for failing to pay Gavriella medical child support, (2) confirming that Dani owed arrearages in the amount of $44,633.34 for medical child support, (3) rendering a cumulative money judgment against him in that amount, and (4) assessing $12,500 in attorney's fees against Dani, payable to Gavriella's attorney.

Dani has filed a mandamus petition in this Court, challenging the portion of the enforcement order holding him in contempt.¹ He also appeals the enforcement order, challenging the cumulative money judgment and attorney's fees award.

In the original proceeding (appellate cause no. 01-20-00828-CV), we conditionally grant the mandamus petition. In the appeal (appellate cause no. 01-21-00093-CV), we modify the cumulative money judgment for the medical child support arrearages to reflect the amount of $34,547.79 instead of $44,633.34, and we affirm the enforcement order as modified.

Background

Dani and Gavriella have three children together. Jane is their oldest child. Dani and Gavriella divorced in February 2018 when Jane was 15 years old.

Dani and Gavriella signed an Agreed Divorce Decree in which they agreed to be joint managing conservators of the children with Gavriella having the right to designate the children's primary residence. As joint managing conservators, each parent had "the right, subject to the agreement of the other parent conservator, to consent to psychiatric and psychological treatment of the children." Dani and Gavriella also agreed that "in the event the parties do not reach mutual agreement on decisions regarding psychiatric treatment of [Jane] (other than in an emergency), then the parties shall follow the recommendation of [Jane's] treating psychiatrist, Abigail Nodler, M.D."

The decree ordered Dani to pay child support to Gavriella and to provide medical insurance for the children. It also contained provisions setting out how the parties would split medical costs not paid by health insurance. The decree provided that "the reasonable and necessary health-care expenses" for medical, dental, and psychiatric costs for the children that are "not reimbursed by health insurance is allocated as follows: Gavriella Etana Roisman is ORDERED to pay 1/3 percent and Dani Roisman is ORDERED to pay 2/3 percent of the unreimbursed health-care expenses."

The decree also provided that the party incurring the health-care expense on behalf of a child was ordered to furnish forms, receipts, bills, and explanations of benefits reflecting the uninsured portion within 30 days after the incurring party received them. The non-incurring party was then required to pay, within 30 days of receipt, his or her percentage either by paying the provider directly or by reimbursing the incurring party for any advance payment exceeding that party's percentage. But, if the incurring party "fail[ed] to submit to the other party forms, receipts, bills, statements, and explanations of benefits reflecting the uninsured portion of the health-care expenses within thirty days after the incurring party receives them," then the non-incurring party was required to pay his or her percentage of the uninsured portion "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 120 days after the nonincurring party receives the forms, receipts, bills, statements, and/or explanations of benefits."

The Agreed Divorce Decree further provided:

Each party is ORDERED to use "preferred providers," or services within the health maintenance organization or preferred provider network, if applicable. Disallowance of the bill by a health insurance company shall not excuse the obligation of either party to make payment. Excepting emergency health-care expenses incurred on behalf of the children, if a party incurs health-care expenses for the children using "out-of-network" health-care providers or services, or fails to follow the health insurance company procedures or requirements, that party shall pay all (100%) of such health-care expenses incurred absent: (1) written agreement of the parties allocating such health-care expenses; or (2) further order of the Court.

On June 5, 2020, Gavriella filed a "Motion for Enforcement of Child Support Order," which she later amended. In her amended motion, Gavriella asserted that, as required by the provisions of the Agreed Divorce Decree, Dani failed to reimburse her for his 2/3 share of the uninsured portions of 10 bills for Jane's psychiatric treatment that Gavriella had paid. Gavriella alleged that, on January 7, 2020, she sent written demand to Dani requesting reimbursement of his 2/3 share of the 10 bills. Gavriella claimed that Dani was in contempt of court for violating the provisions of the decree that required him to pay her his share of the uninsured medical bills. She alleged that each failure by Dani to reimburse her for the 10 medical bills constituted a separate violation of the decree. Gavriella's motion contained the following information regarding the alleged violations:²

 Date Paid
Violation By Petitioner Health Care Provider Net Amt. Movant Paid
      1.          3-5-2019           Menninger Clinic             $21,991.71
      2.          3-19-2019       Visions Treatment Ctr.           $6,000.00
      3.          3-20-2019          Menninger Clinic             $11,169.74
      4.          3-22-2019       Visions Treatment Ctr.          $20,000.00
      5.          3-26-2019        Carol Kiriakos, M.D.            $1,875.00
      6.          3-27-2019       Visions Treatment Ctr.          $50,500.00
      7.          4-26-2019        Carol Kiriakos, M.D               $786.85
      8.          5-22-2019        Carol Kiriakos, M.D               $633.44
      9.          5-29-2019       Visions Treatment Ctr.          $25,500.00
     10.          6-17-2019       Visions Treatment Ctr.           $6,800.00
                                                                 ___________
                                  SUB-TOTAL PAID           =     $145,560.45
                                  Less Insurance (Visions) =      $60,221.73
                                                                 ___________
                                  TOTAL OUT-OF-POCKET = $85,035.01

For each of the 10 violations, Gavriella asked that Dani "be held in contempt, jailed for up to 180 days, and fined up to $500.00, and that each period of confinement ... run and be satisfied concurrently." She also asked that Dani "be placed on community supervision for ten (10) years on release from jail or suspension of commitment." Gavriella claimed that Dani's "total arrearage at the time of [the] filing of this Amended Motion for Enforcement of Child Support Order is $44,689.95 ($85,035.01 paid by [Gavriella] x 2/3, then reduced by a $12,000.00 credit for payments made by [Dani] since June 2019)." Gavriella asked the trial court to confirm the arrearages and render a money judgment in her favor for $44,689.95, plus interest. She also requested her attorney's fees and costs.

On September 29, 2020, the trial court conducted a hearing on Gavriella's amended motion for enforcement. Before presenting her evidence, Gavriella explained to the trial court that she understood Dani's position to be that he was not required to pay his 2/3 share of Jane's psychiatric bills because The Menninger Clinic and Visions Treatment Center were not "preferred providers" with his insurance plan, meaning they were out-of-network providers. Gavriella acknowledged that the Agreed Divorce Decree provided that "if a party incurs health-care expenses for the children using out-of-network health-care provider services, that party shall pay one hundred percent." But Gavriella pointed out that "emergency health-care expenses" are excepted from the requirement that the incurring party pay 100 percent of the out-of-network charges. Gavriella claimed that the charges for Jane's treatment at Menninger and Visions were emergency health-care expenses because they were for the treatment of a psychiatric emergency Jane that experienced in late February and early March 2019.

Gavriella also pointed out that she and Dani had agreed in the decree that Jane's psychiatrist, Dr. Nodler, would act as a "tiebreaker" if they could not agree on Jane's psychiatric treatment. Gavriella further cited the decree's provision requiring the parent incurring the health-care expense to furnish documentation—such as a bill,...