Robert L. Roberts v. Judy M. Roberts

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00296-CV Robert L. Roberts, Appellant v. Judy M. Roberts, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. 91-5273, HONORABLE PAUL DAVIS, JUDGE PRESIDING We must determine whether a parent who fails to carry health insurance for his child as ordered in the original decree of divorce may be ordered to reimburse the other parent for the cost of premiums paid to maintain health insurance on the child. We conclude the trial court properly enforced the original decree and did not modify its terms by ordering the non-compliant parent to reimburse the other parent. We will affirm the trial-court judgment. Factual Background Robert and Judy Roberts were divorced in 1991. The original divorce decree required Robert to carry and maintain health insurance for the benefit of their daughter, Sarah. Robert never provided health insurance for Sarah. (1) At the time of the decree and thereafter, Judy maintained health insurance for Sarah. In December 1998, Judy filed a motion to confirm child-support arrearage in excess of $10,000 plus $13,388.52 in insurance premiums she had paid for Sarah's health insurance when Robert failed to cover the child. At trial, Robert stipulated that Judy carried insurance on Sarah at a cost of $13,748.82. (2) The trial court found that Robert was in arrears in both direct payments of child support and in child support in the form of health insurance, and awarded Judy the amounts alleged in arrears, plus interest and attorney's fees. Robert appeals. Discussion Robert argues that the trial court erred by ordering him to reimburse Judy for the cost of the insurance premiums she paid. Applicable at the time of the original decree, former section 14.061(b) of the Family Code provided that in determining the manner in which health insurance for the child is to be provided, the court shall consider the following factors: (1) if health insurance is available for the child at the obligor's place of employment, the court may order the obligor to include the child in the obligor's health insurance; or (2) if health insurance is not available for the child at the obligor's place of employment but is available for the child at the obligee's place of employment, the court may order the obligee to provide health insurance for the child and in addition may order the obligor to reimburse the obligee for the actual cost of the health insurance for the child; or . . . . Act of July 16, 1989, 71st Leg., 1st C.S., ch. 25, § 15, 1989 Tex. Gen. Laws 74, 79 (Tex. Fam. Code Ann. § 14.061(b), since repealed and recodified at Tex. Fam. Code Ann. § 154.182(b) (West Supp. 2000)). Robert contends that pursuant to former section 14.061(b)(2), he could have been ordered to reimburse Judy for insurance premiums in the original decree, but the trial court did not include such an order. Thus, according to Robert, ordering reimbursement now is an erroneous, unilateral modification of the decree. We disagree. First, at the time the original decree was rendered, the trial court did not have the option of ordering reimbursement. The findings of fact state that at the time of the divorce, Robert had dependent health insurance available through his employer. Thus, former section 14.061(b)(2), which allows a court to order reimbursement, did not apply. Second, it is within the trial court's discretion to enforce the terms of the decree without modifying its terms. See Spradley v. Hutchison, 787 S.W.2d 214, 216 (Tex. App.--Fort Worth 1990, writ denied). In Spradley, although Hutchison was ordered to maintain health insurance for the children, he did not do so. Hutchison brought suit to enforce the parties' property settlement agreement with which Spradley had not complied. The trial court awarded Hutchison the sum due pursuant to the property settlement agreement offset by one-half of the insurance premiums paid by Spradley. The court of appeals rejected the argument that the trial court improperly modified the decree by offsetting Hutchison's award with the insurance premiums, and held that because the order did not purport to change the decree, it was not a modification. Id. at 217. It was within the trial court's discretion, the court concluded, to compensate Spradley for the damages caused by Hutchison's failure to insure the children as he was ordered to do. Id. We agree with the reasoning in Spradley. The trial court did not change the decree by requiring Robert to reimburse Judy. The trial court originally ordered Robert to maintain insurance coverage for Sarah. Once the original decree became final, the insurance obligation was fixed until modified by subsequent order. See In re Marriage of Vogel, 885 S.W.2d 648, 651 (Tex. App.--Amarillo 1994, writ denied). When Robert failed to comply with his insurance obligation, Judy provided Sarah's insurance coverage. As in Spradley, the trial court merely enforced Robert's obligation under the original decree by ordering him to compensate Judy for assuming his neglected obligation. We conclude the trial court did not improperly modify the original decree. In addition, each parent is obligated to support his or her child during the child's minority and is liable to "any person" who provides necessaries for that child. Tex. Fam. Code Ann. § 151.003(a)(3), (c) (West 1996); Creavin v. Moloney, 773 S.W.2d 698, 702-03 (Tex. App.--Corpus Christi 1989, writ denied). Any person, including the other parent, who provides necessaries for the child may bring suit to recover from a parent who fails to discharge the duty of support. Creavin, 773 S.W.2d at 703. Judy provided health insurance for Sarah that Robert had been ordered to provide. Accordingly, the trial court did not err in ordering Robert to reimburse Judy for the amount she paid in insurance premiums. We overrule Robert's issue and affirm the trial-court judgment. Bea Ann Smith, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel Affirmed Filed: January 21, 2000 Do Not Publish 1. Robert admits he would be responsible for Sarah's medical expenses because he did not maintain insurance for her. Robert's willingness to pay medical expenses is irrelevant to the issue on appeal since the trial court did not order him to pay medical expenses, but rather ordered him to maintain insurance. 2. The stipulation represents an additional two months of premiums from the time Judy filed the motion to confirm until trial. 89 Tex. Gen. Laws 74, 79 (Tex. Fam. Code Ann. § 14.061(b), since repealed and recodified at Tex. Fam. Code Ann. § 154.182(b) (West Supp. 2000)). Robert contends that pursuant to former section 14.061(b)(2), he could have been ordered to reimburse Judy for insurance premiums in the original decree, but the trial court did not include such an order. Thus, according to Robert, ordering reimbursement now is an erroneous, unilateral modification of the decree. We disagree. First, at the time the original decree was rendered, the trial court did not have the opti