

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
ROLAND G. MORALES,
 
                                   
  Appellant,
 
v.
 
DIANA L. RICE f/k/a 
DIANA L. MORALES,
 
                                    Appellee.
  
 


 
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                  No. 08-10-00318-CV
 
                         Appeal from
 
131st District
  Court
 
of Bexar County,
  Texas
 
(TC # 94-CI-06591)



O P I N I O N
 
            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.  See
Tex.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.  See Tex.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 overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust.  See Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986).
Once
we have determined whether sufficient evidence exists, we must then decide
whether the trial court made a reasonable decision.  Lide v.
Lide, 116 S.W.3d 147, 151 (Tex.App.--El Paso 2003, no pet.).  In
other words, we must conclude that the ruling was neither arbitrary nor
unreasonable.  Id.  Under the second
inquiry, the test is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action.  Sotelo,
170 S.W.3d at 787-88.  Rather, the issue
is whether the trial court acted without reference to any guiding rules or
principles such that its ruling was arbitrary or unreasonable.  See Low
v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).   An abuse of discretion is shown if the trial
court drew an incorrect conclusion of law by misapplying the law to the facts
or if the controlling findings of fact do not support a correct legal theory
sufficient to support the judgment.  Sotelo, 170 S.W.3d at 788.
Failure to Submit the Bills to Insurance
Carrier
            In Issue Two, Roland contends that
the trial court abused its discretion by finding that Diana followed proper
procedures in submitting medical and dental bills to the insurance provider
before seeking reimbursement for them.  The
divorce decree did not require that Diana take the children to providers who
accept Roland’s insurance.  To the
contrary, the decree gives Diana sole authority to make the decision to incur
health and dental care expenses.  Given
that Diana is obligated to pay one-half of the expenses, it is obviously in her
self-interest to take the children to providers who accept Roland’s insurance,
but it is not mandatory.  Likewise, the
decree does not provide that Roland is obligated to only pay one-half of the
health care and dental expenses that have been submitted to his insurance or
that are covered by his insurance.  In
fact, the decree provides that disallowance of a bill does not excuse the
obligation to make payment.  We overrule
Issue Two.
Failure to Send Copies of the Bills to Roland
Roland
argues in Issue Three that the evidence is legally and factually insufficient
to show that Diana complied with the divorce decree’s requirement that she send
him copies of the medical and dental bills. 
The trial court heard evidence that Diana sent some of the bills to Roland,
but she did not send all of them because she did not have a current address for
him.  Diana testified that she had
attempted to mail some of the statements to him, but the certified mail was
returned to her on one occasion.  On
another occasion, Roland signed for the certified mail but ignored it.  Diana requested assistance from the Attorney
General’s Office to locate Roland, but that office did not have a current
address for him.  Diana also checked with
the clerk of the trial court on several occasions to determine if the clerk had
Roland’s current address, but that office likewise did not have it.  Diana introduced into evidence Petitioner’s
Exhibit 6 which is an envelope addressed to Roland and mailed to him on January
12, 2005.  The United States Postal
Service returned it as undeliverable.  She
did not obtain Roland’s address until her attorney provided it to her after he
served Roland with the motion for enforcement. 

Roland
denied ever receiving any statements or bills from Diana and claimed that he
gave his current address to Diana every year when he sent her the insurance
benefit information.  Roland also
testified that he gave his current address and telephone number to one of Diana’s
neighbors and she could have gotten it from the neighbor.  Diana, on the other hand, testified that she
received the insurance card wrapped in a blank piece of paper and placed inside
of an envelope addressed to her but which had no return address and no
information about the coverage.  
            Citing In the Interest of T.J.L., 97 S.W.3d 257 (Tex.App.--Houston [14th
Dist.] 2003, no writ), Roland asserts
that Diana failed to comply with her obligation to send him copies of the bills
and statements within five days after she received them.  In T.J.L.,
the divorce decree required the children’s mother to submit the children’s
healthcare expenses to the father within ten days after she received them.  T.J.L.,
97 S.W.3d at 260.  The mother did not
submit the bills to father as she received them but she instead gave him a
stack of bills at a hearing in 2000 for healthcare expenses incurred in 1996
through 1999.  Id. at 266-67.  The
Fourteenth Court of Appeals concluded that the trial court did not abuse its
discretion by holding mother 100 percent responsible for these healthcare
expenses.  The instant case is
distinguishable because the divorce decree does not require Diana to send the
bills to Roland within five days after she receives them but instead obligates
him to pay the bill within five days after he receives it.  The decree does not impose any requirement on
Diana to send the bills within a certain period of time.  Further, Diana introduced evidence that she
could not send Roland copies of the bills as she received them because he had
failed to keep her apprised of his address as required by the divorce
decree.  There is evidence that Diana
provided the bills to Roland or his attorney after she obtained his
address.  We conclude that the evidence
is legally and factually sufficient to support the trial court’s implied
finding that Diana complied with the decree’s requirements.  We overrule Issue Three.
Reasonableness of the Bills
In
Issue Four, Roland argues that the evidence is legally and factually
insufficient to prove that the charges were reasonable and necessary.  Roland characterizes the Mexican dental bills
as being “questionable on their face”, but under Section 10.10 of the divorce
decree, the charges are presumed to be reasonable upon presentation of the bill
to Roland.  As discussed above, there is
evidence that Diana presented Roland with the bills which triggered the
presumption of reasonableness.  Under
this factual scenario, it became Roland’s burden to rebut the presumption.  By ordering Roland to pay his share of these
expenses, the trial court impliedly found that Roland failed to rebut the
presumption.  Roland cross-examined Diana
extensively about the dental bills but he did not present any expert testimony
that the charges were not reasonable and necessary.  Consequently, he did not rebut the
presumption and the burden did not shift back to Diana to prove that the
charges were reasonable.  Given the
existence of the presumption, we find that the evidence is legally and
factually sufficient to support the trial court’s implied finding the charges
are reasonable.  We further conclude that
the trial court did not abuse its discretion by granting a judgment against Roland
for the child support arrearages.  We
overrule Issue Four as well as Roland’s global Issue Five.
Attorney’s Fees
            In Issue Six, Roland complains that
the trial court abused its discretion by awarding Diana her attorney’s fees
because she did not establish that the fees were reasonable and necessary.  We understand him to also argue that Diana’s
attorneys did not segregate the fees to differentiate between the fees related
to prosecution of Diana’s motion for enforcement and the fees related to the
defense against Roland’s motion. 
With
respect to the segregation argument, Diana responds that Roland waived this
argument because he did not object to the failure to segregate at trial or by a
post-verdict motion.  We agree.  To preserve a complaint for appellate review,
a party must present to the trial court a timely request, objection, or motion
“with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.”  Tex.R.App.P.
33.1(a)(1)(A). In the context of segregation of fees, the party opposing an
award of attorney’s fees must make a timely objection.  Green
International, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997).  If no one objects that the attorney’s fees
are not segregated as to specific claims, then the objection is waived.  Id.  Roland waived review of this complaint
because he failed to raise it in the trial court.  
Turning
to the remaining argument, a trial court may order a party to pay reasonable
attorney’s fees and costs in a suit affecting the parent-child relationship.  Tex.Fam.Code
Ann. § 106.002 (West 2008); Bruni
v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996)(holding award of attorney’s fees
in suit affecting the parent-child relationship is within the trial court’s
discretion). We review the trial court’s award of attorney’s fees under an
abuse of discretion standard.  Bailey v. Rodriguez, 351 S.W.3d 424, 426
(Tex.App.--El Paso 2011, no pet.).  An
abuse of discretion does not occur as long as some evidence of a substantive
and probative character exists to support the trial court’s decision.  Id.
Diana’s
attorneys testified regarding their legal fees. 
Timothy Daniels represented Diana at trial and in a prior appeal.[1]
 Diana introduced into evidence an
exhibit containing Daniels’ statements for legal services performed in 2005 and
2006.  Daniels testified that his legal
fees of $27,968 were reasonable and necessary in Bexar County, Texas, for the
work performed in the trial and appellate court.  Karen Marvel began representing Diana in 2007
and that representation has continued through the appeal.  She testified that her legal fees of
$21,592.50 were reasonable and necessary in Bexar County, Texas, for the work
performed in the trial court.  Marvel
also offered her opinion regarding reasonable and necessary conditional
attorney’s fees for an appeal.  The
testimony of Diana’s attorneys is legally and factually sufficient to support
the award of attorney’s fees.  Issue Six
is overruled.
DIANA’S CROSS-ISSUES
Limitations
            In Cross-Issue One, Diana claims
that the trial court abused its discretion by granting Roland’s motion to
enforce and awarding him a $10,000 judgment against her.  Roland does not address this issue in his
reply brief.  Diana contends that the
evidence is factually insufficient to support the trial court’s implied finding
that Roland did not know Jonathan Rice was living with her until 2004.  This issue is subject to the same standards
of review set forth in our discussion of Roland’s second through fifth
issues.  
            Under the divorce decree, Diana 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 testified that he
began living with Diana in 1996.  The couple’s
oldest son told Roland in 1996 that Jonathan was living with them.  The youngest son testified that whenever his
father picked them up, he asked them questions about Jonathan and wanted to
know why he was living there.  Roland
told his sons that he had run the plates on Jonathan’s black car and it was
stolen.  Roland recalled having a
conversation with his sons about a black car and commenting that he would bet
it was stolen, but he denied having any knowledge that Jonathan was living at
the house with Diana.
            We agree with Diana that Roland had
two years to enforce his claim under Section 9.003(b) of the Family Code.  See
Tex.Fam.Code Ann. § 9.003(b)(West
2006)(providing that a suit to enforce the division of future property not in
existence at the time of the original decree must be filed before the second
anniversary of the date the right to the property matures or accrues); Morales v. Morales, 195 S.W.3d 188,
191-92 (Tex.App.--San Antonio 2006, pet. denied); Dechon v. Dechon, 909 S.W.2d 950, 961-62 (Tex.App.--El Paso 1995,
no writ).  The issue is when the cause of
action accrued.  The undisputed evidence established
that Jonathan began living with Diana in 1996. 
Accordingly, Roland’s cause of action to enforce the division of future
property accrued in 1996.  See Tex.Fam.Code
Ann. § 9.003(b).  Roland’s motion
to enforce filed in 2004 is barred by Section 9.003(b) of the Family Code.  The trial court abused its discretion by
granting Roland’s motion to enforce. 
Diana’s first cross-issue is sustained.
Attorney’s Fees
            In
her second cross-issue, Diana contends that Roland is not entitled to any
attorney’s fees as a matter of law. 
Diana objected to the testimony of Roland’s attorney, Jeffrey Bernstein,
on attorney’s fees because he had failed to disclose the basis for his
testimony by producing supporting documents in response to Diana’s requests for
disclosure regarding attorney’s fees.  Bernstein
told the trial court that he did not have any itemized statements or bills with
him and he was “just here to testify as to what my attorney’s fees are.”  Bernstein added that he could not produce any
documents for the attorney’s fees at the hearing because he had not yet billed
Roland.  The trial court overruled the
objection and permitted Bernstein to testify that his legal fees of $10,000[2]
were reasonable and necessary to prosecute Roland’s motion for
enforcement.  In its order, the trial
court awarded Roland $10,000 in attorney’s fees.
A
party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not
timely disclosed, unless the court finds that (1) there was good cause for the
failure to timely disclose or (2) the failure will not unfairly surprise or
prejudice the other parties.  Tex.R.Civ.P. 193.6(a).  The burden of establishing good cause or the
lack of unfair surprise or unfair prejudice is on the party seeking to
introduce the evidence or call the witness. 
Tex.R.Civ.P. 193.6(b).  While the trial court has discretion to
determine whether a party has met its burden under this rule, a finding of good
cause or of the lack of unfair surprise or unfair prejudice must be supported
by the record.  Id.; Texas Municipal League
Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817 (Tex.App.--Fort
Worth 2006, no pet.).  
Roland’s
reply brief does not address this cross-issue. 
The trial court heard the motions on June 18, 2009, July 27, 2009,
August 27, 2009 and October 8, 2009. 
Bernstein testified about attorney’s fees on August 27, 2009.  The record does not support Bernstein’s claim
that he could not have produced any billing statements or documents related to
his legal fees prior to August 27, 2009. 
Consequently, the record does not support a finding of good cause, lack
of unfair surprise, or a lack of unfair prejudice.  We find that the trial court abused its
discretion by overruling Diana’s objection to Bernstein’s testimony on
attorney’s fees and sustain Diana’s second cross-issue.
Having
overruled Roland’s issues and sustained both of Diana’s cross-issues, we reverse
the portions of the order awarding judgment against Diana and in favor of
Roland in the amount of $10,000 and awarding attorney’s fees in the amount of
$10,000 to Roland.  The remainder of the
trial court’s order is affirmed. 
 
June 29, 2012                                      ________________________________________________
ANN CRAWFORD McCLURE,
Chief Justice
 
Before McClure, C.J., Rivera, and Antcliff, JJ.




[1]  In Morales
v. Morales, 195 S.W.3d 188 (Tex.App.--San Antonio 2006, pet. denied), Diana
appealed a summary judgment awarding Roland the sum of $10,000 in connection
with his motion to enforce the divorce decree.  The San Antonio Court of Appeals reversed
because Diana’s summary judgment evidence created a fact issue.  Id.
at 192-93.


[2]  Bernstein testified that legal fees of $6,000
had been billed prior to the hearing and he planned to bill Roland for an
additional 20 hours at the rate of $200 per hour for work performed in
connection with the hearing.


