James Raymond Davis v. Wendy J. Mangan

Affirmed and Memorandum Opinion filed July 21, 2005 Affirmed and Memorandum Opinion filed July 21, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00650-CV ____________ JAMES RAYMOND DAVIS, Appellant V. WENDY J. MANGAN, Appellee ____________________________________________________________ On Appeal from the 245th District Court Harris County, Texas Trial Court Cause No. 92-53292 ____________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant, James Raymond Davis, appeals the trial court=s order requiring him to pay medical reimbursement as child support to appellee, Wendy J. Mangan. Davis raises six issues on appeal complaining about sufficiency of the evidence, trial court evidentiary rulings, and the enforceability of the underlying order. We affirm. Factual and Procedural Background[1] James Davis and Wendy Mangan were divorced in 1993. They have two children, S.D. and M.D. This case stems from a motion for enforcement of child support order and order to appear Mangan filed against Davis seeking reimbursement for uninsured medical expenses she paid on behalf of their children. Davis generally denied the allegations in Mangan=s motion and specifically alleged the agreed order sought to be enforced was ambiguous and unclear, Mangan=s claim was barred by limitations, and Mangan had not satisfied conditions precedent to filing suit. On January 15, 2004, the court held a bench trial on Mangan=s motion. Mangan and Davis both testified during the one-day hearing. In addition, the trial court heard testimony regarding attorney=s fees. At the conclusion of the hearing, the court ruled Davis owed Mangan one-half of S.D. and M.D.=s uninsured medical expenses. The court found insurance covered $1,000.00 per child for their respective orthodontic expenses and Davis owed Mangan uninsured medical expenses in the amount of $1,130.00 for S.D. and $1,787.60 for M.D. The court=s final judgment awards Mangan $2,917.60 in uninsured medical expenses and Mangan=s attorney $2,000.00 in attorney=s fees, both awards to be paid by Davis. The trial court issued the following findings of fact and conclusions of law: Findings of Fact 1. [Mangan] and [Davis] were divorced on May 8, 1998. 2. At the time of the divorce, [Mangan] and [Davis] were the parents of [two children, S.D. and M.D.,] under the age of eighteen years . . . . 3. The Court finds that on May 8, 1998, [Davis] was ordered to pay 50% percent of uninsured medical costs . . . and [the order] states in relevant part as follows: AIT IS FURTHER ORDERED, ADJUDGED AND DECREED that commencing April 2, 1999, and for as long as child support is payable under the terms of these Agreed Orders, and as additional child support, JAMES RAYMOND DAVIS will be responsible for and timely pay 50% percent of all health care expenses not paid by insurance that are incurred by or on behalf of the parties= children, [S.D.] and [M.D.], including, without limitation, the yearly deductible and medical, prescription drug, psychiatric, psychological, dental, eye care, ophthalmologic, corrective lens and frame charges and orthodontic charges, which are not reimbursed by insurance.@ 4. That [Davis] was notified of uninsured medical expenses incurred by [Mangan] in the amount of $1,130.00 on behalf of [S.D.] and $1,787.60 on behalf of [M.D.], representing 50% of the total paid by [Mangan]. 5. At the time [Davis] was notified of the uninsured, [Davis] had the ability to pay. 6. [Davis] violated the Court order of May 8, 1998 by refusing to pay his share of the uninsured medical expense. 7. The total amount [Davis] was ordered to pay, as his portion of uninsured medical for the children, was $2,917.60. 8. [Mangan] is granted judgment in the amount of $2,917.60 against [Davis]. 9. It was necessary for [Mangan] to hire [an attorney] to enforce the court order. 10. The sum of $2,000.00 is a reasonable and necessary fee owed to [Mangan=s attorney] for legal [fees.] 12. [Davis] is ordered to pay the sum of $2,917.60 to [Mangan] through the Texas Child Support Disbursement Unit . . . on or before February 27, 2004. 13. [Mangan] is rendered a cumulative money judgment in the amount of $2,917.60 for said proven arrears. Conclusions of Law Violation of Court Order If a party is ordered to pay child support and does not, Chapter 157 of the Texas Family Code gives the Court the power to hold an enforcement proceeding. If the 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 arrearages. Texas Family Code ' 157.161. A child support payment not timely made constitutes a final judgment for the amount due and owing, including interest. Texas Family Code ' 157.261. If a motion for enforcement of child support requests a money judgment for arrearages, the Court shall confirm the amount of arrearages and render one cumulative money judgment. Texas Family Code ' 157.263. Discussion I. Evidentiary Rulings In issues one and four, Davis argues the trial court abused its discretion in admitting Petitioner=s (Mangan=s) Exhibits 1 through 8 on the grounds the exhibits were hearsay, or based upon hearsay, and not properly authenticated. The trial court overruled Davis= objections to the eight exhibits. A. Standard of Review The admission and exclusion of evidence is committed to the trial court=s sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). To obtain reversal of a judgment based on error in the admission of evidence, an appellant must show the trial court=s ruling was erroneous and that the error was calculated to cause and probably did cause Athe rendition of an improper judgment.@ See Tex. R. App. P. 44.1(a)(1); see also Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In making this determination, we review the entire record. Alvarado, 897 S.W.2d at 754 (Tex. 1995). Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate the whole case turns on the particular evidence admitted or excluded. Id.; Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex. App.CDallas 1993, no writ). B. The Exhibits Exhibits 1 through 8 consist of billing summaries, invoices, memos, and notes regarding medical care provided to S.D. and M.D., and the charges and payments therefor. The trial court overruled Davis= hearsay and improper authentication objections and admitted the exhibits. C. Analysis Even if the trial court erred in admitting exhibits 1 through 8 over Davis= objections, we hold such error was harmless in light of the entire record. The November 2003 AMotion for Enforcement of Child Support Order and Order to Appear@ specifically asserts that: 11. [Davis=] total arrearage at the time of filing is $1,137.50 for unpaid medical expenses on [S.D.] and [Davis=] total arrearage at the time of filing is $1,767.00 for unpaid medical expenses for [M.D.] for a total of $2,904.50. At trial, on direct examination, Mangan testified that the total amount of uninsured medical expenses owed by Davis was $2,904.50. The only objection made by Davis to this direct testimony was that the testimony was not relevant. The trial court overruled the objection, and Davis does not complain about that ruling on appeal. Further, Davis specifically testified that if he had received timely notice of the uninsured medical expenses that Mangan claimed were owed by him, he would have paid them. In light of the entire record, we cannot conclude that the error, if any, in admitting the complained-about exhibits was calculated to cause and probably did cause the rendition of an improper judgment. Accordingly, we overrule issues one and four. II. Sufficiency of the Evidence In issues two and three, Davis challenges the legal and factual sufficiency of the evidence to support the trial court=s findings of fact and conclusions of law. Specifically, Davis argues the evidence supporting findings of fact numbers one, four, five, and six, and the conclusions of law, is legally insufficient, and the evidence supporting finding of fact number seven is legally and factually insufficient. A. Standard of Review Findings of fact in a bench trial have the same force and dignity as a jury=s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.CHouston [14th Dist.] 1977, writ ref=d n.r.e.). When challenged on appeal, the findings are not conclusive if there is a complete reporter=s record, as there is here. In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.CHouston [14th Dist.] 2002, no pet.). The trial court=s findings will not be disturbed if there is evidence of probative force to support them. Id. A trial court=s findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury=s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). If an appellant attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate on appeal there is no evidence to support the adverse finding. Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 347 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). In reviewing a Ano evidence@ point, we consider all the evidence in the light most favorable to the trial court=s finding, indulging every reasonable inference in favor of the prevailing party, and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Price Pfister, Inc., 48 S.W.3d at 347. If more than a scintilla of evidence exists to support the finding, the no evidence challenge fails. Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Price Pfister, Inc., 48 S.W.3d at 347. In a factual sufficiency challenge, all of the evidence in the record, both for and against the finding, is reviewed. Id. We review the trial court=s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143B44 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Under de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.CHouston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id. Here, the trial court filed findings of fact and conclusions of law in support of its judgment, and they are set out at the beginning of this opinion. In addition, the record contains a reporter=s record of the proceedings. B. Analysis 1. Finding of Fact 1 (Date of Divorce) It is uncontested that the parties were divorced in 1993. Therefore, the trial court erred when it found that the parties were divorced on May 8, 1998, which was actually the date the trial court had signed the underlying AAgreed Order Modifying Suit Affecting the Parent-Child Relationship.@ However, because this erroneous finding is not a finding of material fact, it does not constitute reversible error. 2. Finding of Fact 4 (Notice of Davis= Share of Uninsured Medical Expenses) Mangan testified that she sent Davis notice of the cost of the total orthodontic treatment to be received by each child and notice that the insurance would cover $1000.00 of the cost, per child. She also testified that she sent Davis copies of the statements and invoices covering all the subject medical treatment. Davis testified he was aware his children were receiving orthodontic and psychological treatments. The evidence is legally sufficient to support finding of fact four. 3. Finding of Fact 5 (Davis= Ability to Pay) Davis testified that if he had received the copies of the invoices from Mangan covering his children=s uninsured medical expenses, he would have paid his share. The evidence is legally sufficient to support finding of fact five. 4. Finding of Fact 6 (Davis= Refusal to Pay) The record is clear that Davis refused to pay any of the subject uninsured medical expenses. The issues of notice and amount due have already been covered in this opinion. The evidence is legally sufficient to support finding of fact six. 5. Finding of Fact 7 (Total Amount Due Under Order Regarding Uninsured Medical Expenses) In addition to complaining about the money amount (already addressed herein), Davis complains that Mangan did not comply with the notice provisions of the underlying order. There was conflicting evidence about whether Davis had any insurance that would have also covered the subject medical expenses, and the trial court could have reasonably concluded there was not sufficient evidence to show there was any coverage carried by Davis. On the other hand, the evidence was clear that Mangan=s insurance covered $1000.00 of the medical expenses for each child. Contrary to Davis= argument, Mangan, as the party carrying the insurance policy, was not required to submit invoices and other evidence of incurred medical expenses to Davis within ten days of receiving them. The evidence is legally and factually sufficient to support finding of fact seven. 6. Conclusions of Law (Applicability of Chapter 157 of the Texas Family Code) Contrary to Davis= claim, Mangan=s motion for enforcement of child support order specifically states the amount owed, as required by Texas Family Code section 157.002(b). Tex. Fam. Code Ann. ' 157.002(b)(1) (Vernon 2002). Further, the motion clearly identifies Davis as the Respondent, even though there is an apparent typographical error in the motion in one spot where another person=s name is mistakenly inserted. Davis= complaints have no merit. We overrule issues two and three. III. Laches In issue five, Davis argues the trial court erred in granting judgment on the basis of laches. Davis contends the affirmative defense of laches was tried by consent, barring Mangan from obtaining reimbursement, based on (1) his testimony at trial that he was not notified of the unreimbursed medical expenses until he was served with citation on December 1, 2003, and (2) the fact that the expenses for S.D. and M.D. were incurred between 1998 and 2002 and Mangan did not file suit until 2003. Davis claims Mangan=s delay in requesting reimbursement led him to believe he owed nothing. Laches is an equitable remedy that prevents a plaintiff from asserting a claim due to a lapse of time. Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 912 (Tex. App.CHouston [1st Dist.] 1995, writ denied). In order to prevail on a claim of laches, a party must show (1) an unreasonable delay by the other party in asserting a legal or equitable right; and (2) a good faith change in position to his detriment by the party asserting laches due to the delay. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 80 (Tex. 1989); Willis v. Donnelly, 118 S.W.3d 10, 38B39 (Tex. App.CHouston [14th Dist.] 2003, pet. filed). Extraordinary circumstances, which would work a grave injustice, must exist before laches bars a suit filed within the limitations period. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); Donnelly, 118 S.W.3d at 38B39. AThe application of laches . . . is usually limited to cases arising out of equity or actions at law that are essentially equitable in character.@ Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 415 (Tex. App.CCorpus Christi 2001, pet. denied). As already discussed, there was evidence that Mangan sent Davis prior notice of the claim. Further, Davis does not explain how he in good faith detrimentally changed his position even if Mangan failed to seek reimbursement sooner. Davis also has not shown extraordinary circumstances exist. Moreover, Texas Family Code section 157.005(b) provides that a trial court Aretains jurisdiction to confirm the total amount of child support arrearages and render judgment for past‑due child support until the date all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid.@ See Tex. Fam. Code Ann. ' 157.005(b) (Vernon 2002); see In re B.A.C., 144 S.W.3d 8, 13 (Tex. App.CWaco 2004, no pet.) (citing section 157.005(b) and stating A[t]here is, in effect, no longer any statute of limitations on the confirmation of child-support arrearages@). Based on the foregoing, we hold the trial court did not err in concluding Davis= defense of laches had no merit. We overrule issue five. IV. The Underlying Order In issue six, Davis argues the trial court erred in granting judgment because the terms of the underlying order were not clear and specific enough to be enforced. Davis asserts the order required him to pay fifty percent of uninsured expenses but did not provide terms requiring Mangan to forward receipts to him. He contends the order is Avoid@ as to how or when he is to receive notice of receipts if Mangan was providing insurance coverage for the children. Davis did not specifically ask the trial court for any finding of fact or conclusion of law regarding whether the support order was ambiguous as to the manner in which he is to receive notice of uninsured medical expenses. A judgment must be sufficiently definite and certain to permit its enforcement. Gross v. Gross, 808 S.W.2d 215, 218 (Tex. App.CHouston [14th Dist.] 1991, no writ). A trial court may properly refuse to enter judgment on back child support payments because of an ambiguous, indefinite, and uncertain order. Id. ATo be enforceable by contempt, a child support obligation must >set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed upon him.=@ Office of the Attorney Gen. of Tex. v. Wilson, 24 S.W.3d 902, 906 (Tex. App.CDallas 2000, no pet.) (quoting Ex parte Acker, 949 S.W.2d 314, 317 (Tex. 1997)) (emphasis added). However, a party seeking enforcement of a child support order Ais not required to plead that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies.@ Tex. Fam. Code Ann. ' 157.002(d). An order which is too uncertain to be enforceable by contempt may still be enforced by a money judgment if it is sufficiently definite and certain. Gross, 808 S.W.2d at 219. An appellate court should determine what the trial court adjudicated from a fair reading of all of the judgment=s provisions. Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997) (ALike other judgments, courts are to construe divorce decrees as a whole toward the end of harmonizing and giving effect to all that is written.@). The relevant portion of the subject order is quoted at the beginning of this opinion as part of the trial court=s finding of fact number three. It is clear and unambiguous that Davis Awill be responsible for and timely pay 50% of all health care expenses not paid by insurance that are incurred by or on behalf of the parties= children.@ Clearly, the order contemplates that the party providing the health care services to the children, or the party paying for the uninsured health care expenses, will notify Davis of the amount of the charges that are not covered by insurance so that Davis can pay his portion.[2] Thus, the order contains no ambiguity with respect to the identity of the obligor and obligee or the amount of payment which must be made. We hold the order is sufficiently definite and certain to permit its enforcement. We overrule issue six. Conclusion We affirm the judgment of the trial court. /s/ Margaret Garner Mirabal Senior Justice Judgment rendered and Memorandum Opinion filed July 21, 2005. Panel consists of Justices Yates, Hudson, and Mirabal.[3] [1] Because there is no appellee=s brief, the facts are undisputed. See Tex. R. App. P. 38.1(f) (AThe brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.@). [2] The judgment from which Davis appeals is not a judgment for contempt, and, thus, the terms of the underlying order are not subject to the heightened scrutiny required for orders of contempt. [3] Senior Justice Margaret Garner Mirabal sitting by assignment.