Morales v. Rice

• Decision Date: 29 June 2012
• Docket Number: No. 08–10–00318–CV.,08–10–00318–CV.
• Citation: 388 S.W.3d 376
• Parties: Roland G. MORALES, Appellant, v. Diana L. RICE f/k/a Diana L. Morales, Appellee.
• Court: Texas Court of Appeals

388 S.W.3d 376

Roland G. MORALES, Appellant,

v.Diana L. RICE f/k/a Diana L. Morales, Appellee.

No. 08–10–00318–CV.

Court of Appeals of Texas, El Paso.

June 29, 2012.

Jay Brandon, Assistant District Attorney, San Antonio, TX, for Appellant.

Karen L. Marvel, San Antonio, TX, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Roland G. Morales and Diana L. Rice, formerly known as Diana L. Morales, appeal from an order which enforces certain provisions of a 1995 divorce decree and awards attorney's fees. We affirm in part and reverse in part.

FACTUAL SUMMARY

Roland and Diana divorced in 1995. The present dispute between the parties centers on Roland's obligation to pay one-half of the children's medical and dental expenses not paid by insurance and on Diana's obligation to pay $10,000 to Roland upon the occurrence of certain events. With respect to the first area of contention, the divorce decree ordered Morales to provide, as child support, medical and dental insurance for the children and he was required to pay one-half of the medical and dental expenses not paid by insurance by paying the health care provider directly or by reimbursing Diana for any advance payment above her share of expenses. Diana had sole decision-making authority to incur medical and dental care expenses for the children and she was required to furnish Roland with copies of all statements and bills for the expenses not covered by insurance. The decree specified that charges were presumed to be reasonable upon presentation of the bill and disallowance of the bill by an insurer did not excuse Roland's obligation to pay his share. The divorce decree awarded Diana the residence located in Converse but she was ordered to pay Roland the sum of $10,000 upon the occurrence of certain events, including if she remarried or if she had a male non-family member living with her.

Jonathan Rice began living with Diana in February 1996 and they married in April 2004. In October 2004, Roland made demand on Diana that she pay him $10,000 as required by the divorce decree. When Diana did not pay him, Roland filed a motion to enforce. Diana countered with a motion for enforcement and contempt alleging that Roland had not paid his share of the children's medical expenses. Diana attached to her motion an exhibit which summarized unpaid dental care, vision care, medical care, and prescription expenses for 1995 through the filing date in 2005. The exhibit reflects unpaid expenses in the amount of $12,035.80 for dental care, $1,121.92 for vision care, $2,448.06 for medical care, and $271.17 for prescriptions. In 2009, Diana filed a supplemental motion alleging that Roland had failed to maintain insurance for the children, to provide information regarding those benefits to Diana, to inform Diana of his address, and to pay one-half of the children's medical and dental expenses. Diana also requested that the court award her a cumulative judgment for all of the medical/dental support as child support arrearages. The supplemental motion to enforce included a summary reflecting additional expenses incurred for 2005 through 2008.

The trial court awarded relief to both parties. With respect to Diana's motion for enforcement, the court found that Roland had failed to provide health insurance and failed to pay medical and dental support for the children. It awarded Diana a cumulative money judgment of $25,141.42. The court additionally awarded judgment against Roland for Diana's attorney's fees. With respect to Roland's motion for enforcement, the court found that a male non-family member had resided with Diana and awarded Roland a judgment against her in the amount of $10,000. The court also awarded Roland attorney's fees in the amount of $10,000. Both parties appeal.

ROLAND'S ISSUES

Hearsay

In his first issue, Roland argues that the trial court abused its discretion by admitting the copies of medical bills and receipts because the evidence was inadmissible hearsay. He also contends that the evidence is unauthenticated. Diana responds that Roland waived these arguments.

Petitioner's Exhibit 1 is a large collection of receipts, statements, and bills related to medical and dental services. The exhibit also includes some progress notes related to one child's illness. Prior to the exhibit being offered, Diana identified each receipt and explained the nature of the medical or dental expense, for which child the expense was incurred, and the amount of the expense. When Diana offered the exhibit, Roland raised only a hearsay objection. The trial court overruled the hearsay objection and admitted the evidence.

Error is preserved with regard to a ruling that admits evidence if the opponent of the evidence makes a timely, specific objection and obtains a ruling. Tex.R.App.P. 33.1; Tex.R.Evid. 103(a)(1); Service Corporation International v. Guerra, 348 S.W.3d 221, 234 (Tex.2011). Roland argues on appeal that the evidence is inadmissible because it was not properly authenticated. Under the Texas Rules of Evidence, authentication relates to the requirement that the proponent of the evidence show that the matter in question is what its proponent claims. SeeTex.R.Evid. 901(a). Roland did not make any objection at trial on the ground of authentication. Consequently, this argument is waived. See Williams v. County of Dallas, 194 S.W.3d 29, 32 (Tex.App.-Dallas 2006, pet. denied) (appellant waived argument that evidence was not properly authenticated where she did not make the objection at trial).

Although Roland objected to Petitioner's Exhibit 1, he failed to make a hearsay objection when Diana testified about each of the medical and dental receipts contained in the exhibit. It is well established that a party waives any complaint about the admission of evidence if testimony to the same effect has been previously admitted without objection. Atlantic Richfield Company v. Misty Products, Inc., 820 S.W.2d 414, 421 (Tex.App.-Houston [14th Dist.] 1991, writ denied). By failing to object to Diana's testimony which established the same facts as the receipts, Appellant waived his complaint.

Alternatively, even if we assume for the sake of argument that the trial court abused its discretion by admitting Petitioner's Exhibit 1 over Roland's hearsay objection, the error is not reversible because it did not cause the rendition of an improper judgment. SeeTex.R.App.P. 44.1(a)(1). A witness with personal knowledge may testify to expenses incurred without providing documentation to substantiate the testimony. See In the Interest of J.C.K., 143 S.W.3d 131, 142 (Tex.App.-Waco 2004, no pet.) (where mother with personal knowledge of healthcare expenses testified about those expenses and refreshed memory with summary of expenses prepared by counsel, testimony was legally and factually sufficient to support trial court's award of prenatal and postnatal medical expenses). Diana's testimony about the children's healthcare expenses was sufficient to prove the expenses even without the supporting documentation. See In the Interest of J.C.K., 143 S.W.3d at 142. We overrule Issue One.

Unpaid Medical Support

In Issues Two through Five, Roland challenges the trial court's decision to grant Diana's motion to enforce.

Standard of Review

We review the trial court's ruling on a post-divorce motion for enforcement of a divorce decree under an abuse-of-discretion standard. See In re T.J.L., 97 S.W.3d 257, 265 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (abuse of discretion standard applied in reviewing order enforcing payment of child's healthcare expenses and uninsured medical expenses). In determining whether the trial court abused its discretion, we engage in a two-pronged analysis: (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? Duran v. Garcia, 224 S.W.3d 309, 313 (Tex.App.-El Paso 2005, no pet.). The traditional sufficiency standards apply to the first question. Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex.App.-El Paso 2005, no pet.). An appellant may challenge the trial court's findings of fact for legal and factual sufficiency of the evidence. Sotelo, 170 S.W.3d at 787. In a bench trial where no findings of fact or conclusions of law are filed, the judgment implies all findings of fact necessary to support it. Id. Where a reporter's record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency points. Id. The applicable standard of review is the same as that to be applied in the review of jury findings or a trial court's findings of fact. Id.

A legal sufficiency or “no evidence” challenge will be sustained if the party suffering the adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or 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 scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). When conducting a legal sufficiency review, we must view the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. Id. at 822. The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id.

In a factual sufficiency review, we consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. Sotelo, 170 S.W.3d at 787. We will set aside the finding only if it is so contrary to the...