Smith v. Smith

DEAN SMITH, Appellant v. MICHELLE ANN SMITH, Appellee

No. 14-18-00583-CV

Court of Appeals of Texas, Fourteenth District

September 30, 2021

On Appeal from the 257th District Court Harris County, Texas Trial Court Cause No. 2009-33707

Panel consists of Justices Jewell and Bourliot and Senior Justice Simmons.^[5]

MEMORANDUM OPINION

Frances Bourliot Justice.

Dean Smith appeals the trial court's enforcement order holding that he committed certain violations of the trial court's final decree of divorce and ordering him to pay certain amounts to his ex-wife Michelle Ann Lutz (formerly Smith) some as child support arrearages, as well as attorney's fees. In this appeal, Smith specifically challenges the trial court's orders pertaining to unreimbursed medical expenses and insurance premiums and related attorney's fees.

We conclude that the trial court erred in awarding Lutz amounts for unreimbursed insurance premiums but properly awarded her amounts for unreimbursed medical expenses. Accordingly, we reverse the portion of the trial court's enforcement order concerning the unreimbursed insurance premiums and order that Lutz take nothing on those claims, reverse and remand the award of attorney's fees for a new determination of the proper amount of fees to be awarded, and affirm the remainder of the enforcement order.

Background

Lutz and Smith were divorced on April 26, 2010 with the entry of an agreed final decree. They have three children together. Among numerous provisions in the decree, Smith was ordered to refinance the mortgage on the marital residence and pay the couple's federal income tax liabilities from the beginning of the marriage through 2008. As will be discussed in more detail below, the decree also required Smith to pay daycare expenses for the children but also effectively provided for the conversion of that obligation into the obligation to pay half of the cost for health insurance for the children, which Lutz was required to provide. The decree also ordered each party to pay half of the children's uninsured medical expenses and included provisions regarding proof of any amounts paid. Both parties were enjoined from allowing any person with whom they had an intimate or dating relationship to be in the home or in the presence of the children between certain hours while they had possession of the children.

In 2014, Lutz filed both a motion to enforce and a petition to modify the final decree. In her third amended motion for enforcement, the live enforcement pleading at the time of trial, Lutz alleged Smith had failed to refinance the mortgage; pay the IRS debt, which had resulted in the seizure of Lutz's tax refund; comply with the so-called morality clause; or reimburse half of healthcare coverage costs or uninsured healthcare expenses. Lutz also alleged Smith failed to reimburse her for private school tuition, which appears to relate to a separate agreement between the parties and not be a part of the final decree, and she requested attorney's fees.

The parties began mediating issues raised in the petition to modify in 2016 and ultimately signed a mediated settlement agreement (MSA), which was filed with the trial court on October 18, 2017. Among the terms of the MSA, it appears that the parties agreed Lutz would provide health insurance for the children and Smith would reimburse her for 50 percent of the actual cost beginning October 1, 2016. A dispute then arose regarding the MSA terms, and the parties sought arbitration of those issues. The MSA therefore had not been incorporated into a court order by the time of trial in the enforcement action.

Meanwhile trial commenced on the enforcement action on April 12, 2018. Lutz testified and presented evidence concerning the expenses she was seeking to recover. The sufficiency of that evidence is a key issue in this appeal and will be discussed in more detail below. The MSA was not offered or admitted into evidence as an exhibit but was briefly mentioned during trial.

Among other holdings in its enforcement order, signed June 1, 2018 the trial court found that (1) Smith owed Lutz $5, 976 for the seizure of her tax refunds; (2) the MSA clarified the parties' existing agreement regarding Smith's obligation to pay health insurance premiums, and his obligation through April 1, 2018 amounted to $8, 704, payable as child support; (3) Smith's obligation to pay uninsured healthcare expenses amounted to $3, 779.94, also payable as child support; and (4) Lutz incurred $7, 500 in attorney's fees on the child support matters and $1, 000 on the property issue. The court then awarded Lutz judgment for all stated amounts but denied all requested relief not expressly granted.

Discussion

In five issues, Smith contends that (1) the trial court impermissibly modified the child support provisions in the decree without proper pleadings on file and in an order that did not contain required information, (2) the evidence was legally and factually insufficient to support the enforcement order, (3) the court exceeded its authority in modifying the decree beyond permissible clarification parameters, (4) the court abused its discretion in enforcing provisions of an MSA that had not been incorporated into a court order, and (5) the award in the enforcement order was clearly wrong and manifestly unjust. Under several of these issues, Smith raises arguments pertinent to the award of medical expenses the award of insurance premiums, and the attorney's fees award. In the interest of clarity, we will organize our discussion based on the specific awards and will address each of Smith's issues within that organization. We will begin with the medical expenses.

I. Medical Expenses

In regard to the medical expenses, Smith argues that (1) Lutz's pleadings were deficient, (2) the trial court's enforcement order was deficient, and (3) the evidence was legally and factually insufficient to support the award. We will address each set of arguments in turn. We review the trial court's ruling on a postdivorce motion for enforcement of a divorce decree under an abuse of discretion standard. Woody v. Woody, 429 S.W.3d 792, 797 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

A. Lutz's Pleadings

Smith first asserts that Lutz's pleadings for medical expenses were deficient because they did not state the provisions of the decree that Smith violated, the amounts due, or the dates of any contempt.^[1] The only authority Smith cites in support of his argument is Texas Family Code section 157.002, which provides in relevant part:

(a) A motion for enforcement must, in ordinary and concise language:

(1) identify the provision of the order allegedly violated and sought to be enforced;

(2) state the manner of the respondent's alleged noncompliance;

(3) state the relief requested by the movant; and

(4) contain the signature of the movant or the movant's attorney.

(b) A motion for enforcement of child support:

(1) must include the amount owed as provided in the order, the amount paid, and the amount of arrearages;

(2) if contempt is requested, must include the portion of the order allegedly violated and, for each date of alleged contempt, the amount due and the amount paid, if any ....

Tex. Fam. Code § 157.002.

In her motion for enforcement, Lutz set out the relevant language of the decree regarding medical expenses and states that Smith failed to pay his half of the health care expenses Lutz had incurred on behalf of the children. She then lists the "outstanding expenses," supplying the provider's name, the amount incurred, and the date of the statement for each of 47 different medical expenses. She requests that the court order Smith to pay 50 percent of the expenses incurred and notes that the statements were provided to Smith.

It is not entirely clear from his brief whether Smith intended to argue that the motion did not identify the provision of the order allegedly violated by failing to pay his share of medical expenses, as required by section 157.002, or whether this argument was just aimed at the health insurance premiums claims. Regardless, Lutz's motion clearly sets out the relevant language from the decree.

Smith next complains that the motion did not state the amount he owed. The statement did, however, state the amounts Lutz incurred and asserted Smith owed half. All Smith had to do to know the amount of the alleged arrearages was divide by two. Smith does not cite any authority or offer any explanation as to why more than this was required. See Tex.R.App.P. 38.1(i) (requiring that appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").

Lastly, Smith complains that Lutz failed to "include any dates of alleged contempt." But Lutz did not seek contempt in her motion, so there were no dates of alleged contempt to provide. Smith's arguments regarding the sufficiency of Lutz's motion are without merit.

B. The Enforcement Order

Smith next asserts that the trial court's enforcement order was deficient in regards to the medical expenses because it does not identify (1) the provisions in the decree Smith violated, (2) the acts or omissions that were the subject of the order, (3) the expenses for which he was being held liable, or (4) the dates by which he should have paid. Once again, the only authority Smith cites in support of his arguments is a section of the Family Code, in this instance, section 157.002(a), which provides:

(a) An enforcement order must include:

(1) in ordinary and concise language the provisions of the order for which enforcement was requested;

(2) the acts or omissions that are the subject of the order;

(3) the manner of the respondent's noncompliance; and (4) the

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