      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00028-CV



                                     J. Scott Loras, Appellant

                                                  v.

                                     Susan Mitchell, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
        NO. D-1-FM-10-001499, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The trial court ordered J. Scott Loras to reimburse his former wife, Susan Mitchell,

for expenses she incurred to send their son to an outdoor therapeutic program and then to a

residential treatment facility, both of which were for the purpose of addressing his mental-health and

behavioral issues. On appeal, Loras asserts that the trial court abused its discretion in issuing the

child-support enforcement order because (1) the evidence is insufficient to establish that the

expenses are “health-care” expenses within the meaning of the parties’ amended divorce decree or

as contemplated by the Texas Family Code, (2) the expenses were incurred in a non-emergency

situation without his consent, and (3) he is entitled to an offset for other child support he paid to

Mitchell during the time their son was enrolled in the treatment programs. We will affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND

               Loras and Mitchell were divorced in 1997. Their final divorce decree appointed both

parents as joint managing conservators for their son, A.L. Among other things, the decree specified

that both parents retained the right to (1) consent to medical treatment during an emergency

involving an immediate danger to the health and safety of the child and (2) consent on behalf of the

child to medical treatment involving psychiatric and psychological treatment. The decree also

included fairly restrictive provisions regarding reimbursement of uninsured health-care expenses

incurred on A.L.’s behalf for psychiatric and psychological treatment. Those provisions required

each party to pay 50% of such expenses for A.L. for three months after the date of the divorce

decree; thereafter, each parent was to pay 100% of the expenses for psychiatric and psychological

treatment authorized by that parent.

               In May 2007, however, following A.L.’s inpatient treatment at a Texas-based

residential treatment facility for psychological issues, Loras and Mitchell executed an agreed order

that modified the health-care provisions in the divorce decree (“Agreed Order”). The Agreed Order

included the following relevant provisions:


       1.      Definitions—

       ....

               “Reasonable and necessary health-care expenses not paid by insurance
       and incurred by or on behalf of a child” include, without limitation . . . mental
       health-care services.

       ....




                                                 2
       5.      Compliance with Insurance Company Requirements— . . . Each party shall
               attempt to use “preferred providers,” or services within the health
               maintenance organization, if applicable; however, this provision shall not
               apply if emergency care is required or agreement between the parties.
               Disallowance of the bill by a health insurer shall not excuse the obligation of
               either party to make payment as allocated herein.

       ....

       8.      Health-Care Expenses Not Paid by Insurance—Subject to the provisions in
               paragraph 5, immediately above, IT IS ORDERED that, if health-care
               expenses are incurred for the child, [Loras] and [Mitchell] shall pay all
               reasonable and necessary health-care expenses not paid by insurance and
               incurred by or on behalf of the child in the following portions:

               a.     If the health-care expenses are incurred by using a HMO
                      or PPO plan, in an emergency, or with the written
                      agreement of the other party, [Loras] is ORDERED to pay
                      fifty (50%) percent and [Mitchell] is ORDERED to pay
                      fifty (50%) percent.

               b.     Except in an emergency or if the other parent agreed in
                      writing, if a party incurs health-care expenses for the child by
                      using the services of health-care providers not employed by
                      the HMO or approved by the PPO, [Loras] is ORDERED to
                      pay fifty (50%) percent and [Mitchell] is ORDERED to pay
                      fifty (50%) percent.1


The Agreed Order further specified that the “reasonableness of the charges for health-care expenses

shall be presumed when a party is furnished with the applicable documents for the charges.”

               In November 2007, after A.L. exhibited violent and destructive behavior and made

an outcry for assistance, Mitchell informed Loras, via email, that A.L.’s condition was rapidly


       1
         Paragraph 8 of the Agreed Order specified three additional scenarios in which health-care
expenses not covered by insurance must be apportioned between the parties, none of which is alleged
to be applicable in this case and all of which similarly require a 50/50 split between Loras
and Mitchell.

                                                 3
deteriorating. Loras responded that A.L. needed to leave his mother’s home “ASAP.” Loras was

apparently unable or unwilling to take custody of A.L. at that time, however, and Mitchell’s husband

informed Loras that they would keep him posted on “when, where, and what” they would do with

A.L. About ten days after Mitchell’s initial communication with Loras, she enrolled A.L. in Outback

Therapeutic Expeditions, a nine-week outdoor therapeutic camp in Utah, which Loras concedes on

appeal was an “intensely therapeutic” program with “well-defined health care elements.” Loras

participated in A.L.’s therapy sessions at Outback—both in person and by telephone—and never

sought to withdraw him from the program or requested that he be withdrawn.

               Upon completion of the Outback wilderness program in January 2008, A.L.’s

therapist informed Mitchell that A.L. should not return home and should instead be enrolled in a

residential treatment facility. Mitchell communicated this information to Loras, along with a list of

six prospective facilities, as Loras had previously communicated a willingness to consider placing

A.L. in a boarding school. Loras was invited to join Mitchell in visiting the treatment centers, but

he did not respond to Mitchell’s email. She subsequently informed him that A.L. had been accepted

at Discovery Ranch, a residential treatment facility in Utah. While A.L. was being treated at

Discovery Ranch from January 2008 until he graduated high school in December 2008, Loras

participated in A.L.’s therapy sessions—both in person and by telephone—and never sought to

withdraw him from the program or requested that he be withdrawn. In addition, it is undisputed that

Loras repeatedly encouraged A.L. to stay at Discovery Ranch for several months after he attained

the age of majority and could have withdrawn himself from the program.




                                                 4
                  Although Mitchell regularly submitted invoices to Loras and requested that he

reimburse her for 50% of the expenses, Loras never reimbursed Mitchell for any expenses incurred

for A.L.’s treatment at Outback or Discovery Ranch. As a result, in April 2009, Mitchell initiated

the underlying post-divorce enforcement action regarding expenses incurred for their son’s

enrollment in these programs. After a bench trial, the trial court granted Mitchell’s request for

enforcement of the Agreed Order and rendered judgment against Loras for $78,659.75 in health-care

related, child-support arrearages and $11,312.87 in attorney’s fees.

                  On appeal, Loras presents five issues in which he asserts that the trial court abused

its discretion in rendering judgment against him.


                                     STANDARD OF REVIEW

                  “‘A court’s order of child support will not be disturbed on appeal unless the

complaining party can show a clear abuse of discretion.’” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011)

(quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). “A trial court abuses

its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or

principles.” Id. “A trial court also abuses its discretion by failing to analyze or apply the law

correctly.” Id.

                  Under an abuse-of-discretion standard, legal and factual sufficiency of the evidence

are relevant factors in assessing whether the trial court abused its discretion, but they are not

independent grounds of error. Iliff v. Iliff, 339 S.W.3d 126, 134 (Tex. App.—Austin 2009), aff’d,

339 S.W.3d 74 (Tex. 2011). Accordingly, in determining whether the trial court abused its

discretion in this case, we apply a two-pronged analysis. See id. First, we must consider whether

                                                    5
the trial court had sufficient information on which to exercise its discretion. Id. Second, we must

determine whether, based on the evidence, the trial court’s decision was reasonable. Id.

               In determining whether there is legally sufficient evidence to support a finding under

review, we examine the record for evidence and inferences that support the challenged finding,

considering evidence favorable to the finding if a reasonable factfinder could and disregarding

evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson,

168 S.W.3d 802, 827-28 (Tex. 2005). Evidence is legally insufficient only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of

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 mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998). We will not substitute our judgment for that of the factfinder if the evidence falls

within the zone of reasonable disagreement. City of Keller, 168 S.W.3d at 822.

               Evidence is factually insufficient only if the evidence adverse to the finding at issue

preponderates so overwhelmingly against the challenged finding that the finding is clearly wrong and

manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

               As the factfinder in this case, the trial court is the “sole judge of the credibility of the

witnesses and the weight to be given their testimony.” McGalliard v. Kuhlmann, 722 S.W.2d 694,

696 (Tex. 1986). There is no abuse of discretion if some probative and substantive evidence

supports the trial court’s order. See, e.g., Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex.

App.—Austin 2006, pet. denied).



                                                   6
                                           DISCUSSION

Health-Care Expenses

               In his first and fifth issues, Loras asserts that the trial court abused its discretion in

concluding that the entire cost for Outback and Discovery Ranch qualifies as a health-care expense.

He contends that the evidence was insufficient to establish that the expenses incurred on A.L.’s

behalf at Discovery Ranch were health-care expenses because the invoices from Discovery Ranch

refer to “tuition” and do not include itemized medical-care expenses. Loras contends that Discovery

Ranch is a “boarding school” and that neither the Agreed Order nor the Texas Family Code requires

the court to charge boarding school tuition as a medical support obligation. In the alternative, he

contends that there is insufficient evidence to determine what portion of the expenses incurred at

Outback and Discovery Ranch are health-care expenses because the total cost of care for A.L.

included non-health-care components, such as tuition, room and board, and other educational costs,

that were not segregated from legitimate health-care expenses.

               Under the Agreed Order, “mental health-care services” are included within the

definition of reimbursable health-care expenses. In Rambo v. Rambo, we previously held that

expenses for an outdoor therapeutic program and a residential treatment center for a troubled teen

were health-care expenses. No. 03-01-00257-CV, 2002 WL 24033, at *3 (Tex. App.—Austin

Jan. 10, 2002, no pet.) (mem. op., not designated for publication) (holding that sufficient evidence

supported finding that outdoor therapy program and residential treatment expenses were health-care

expenses not covered by insurance, for which father was required to pay 50% pursuant to

divorce decree).



                                                   7
               The factual circumstances in Rambo are similar to those in the present case regarding

the child’s need for the services and the types of services rendered. As in Rambo, there is undisputed

testimony that A.L. was an emotionally troubled teen. At age seventeen, A.L. was combative,

behaving violently, and using drugs, alcohol, and tobacco. He had previously been diagnosed with

intermittent rage disorder, severe depression, and attention-deficit hyperactivity disorder. Even after

a previous stint in residential treatment in the spring of 2007, A.L.’s problems persisted and

escalated to the point that his mother and stepfather were fearful that A.L. would harm them. There

was undisputed evidence that A.L. had destroyed property, had a 10-inch military knife hidden in

his room, had injured his stepfather by throwing a rock at his head, had beaten his mother with a

broomstick, had threatened his grandmother with a dowel rod, and had previously thrown a butcher

knife at his stepfather. There were other disturbing incidents. Mitchell was so fearful of her

son’s erratic behavior that she hired an off-duty sheriff’s deputy to stay at her home when her

husband traveled.

               During this time, A.L. was attending outpatient therapy, and his psychiatrist and

psychologist recommended that A.L. be enrolled in a residential treatment facility.             A.L.’s

psychologist contacted Loras several times to discuss this option, but Mitchell testified that, as far

as she knew, Loras never met with A.L.’s psychologist to discuss the matter. However, Loras

informed Mitchell on several occasions that he was having financial difficulties, that he wanted

to reduce counseling expenditures for his son, and that his consent was required for A.L.’s

health-care treatment.




                                                  8
               On November 3, 2007, A.L. was particularly out of control, destroying property and

choking Mitchell. Mitchell promptly informed Loras of these circumstances by email and told him

that A.L. had begged her for help, stating “Mom, please help me . . . I’m losing my mind . . . mom,

I’m absolutely losing my mind.” Loras quickly responded via email that A.L. needed to leave his

mother’s home “ASAP.” Loras testified that he intended for A.L. to come live with him. However,

he never came to collect his son, and other evidence admitted at trial indicates that Loras expressed

an inability or unwillingness to take custody of A.L. for several months, if then. Consequently,

Mitchell and her husband testified that they were left to seek alternative placements for A.L.

Mitchell’s husband specifically informed Loras via email that they would be looking into other

placements and would let Loras know where A.L. would be placed. Loras did not respond. On

November 13, 2007, A.L. was enrolled in Outback to address the immediate crisis and to facilitate

his later enrollment in a residential treatment facility. On the same day, the Mitchells informed

Loras of this enrollment, and Loras did not communicate any objections or reservations to them at

that time.

               The record reflects that, at Outback, A.L. received medical and psychological services

under the direction of a physician—including a psychological evaluation, regular counseling, lab

work, drug screening, physical assessments, and prescription medications—and engaged in intensive

therapeutic activities. Loras participated in A.L.’s therapy sessions at Outback and at no time sought

to withdraw him from the program or requested that he be withdrawn. Shortly before A.L.’s

discharge from Outback in January 2008, however, Loras informed Mitchell via email that he would

not pay for any expenses incurred for A.L.’s enrollment at Outback because she had not obtained his



                                                  9
prior approval and consent. Loras now concedes that at the time A.L. was enrolled at Outback, he

needed acute care in a highly controlled environment, at least for a short while. Loras acknowledges

that A.L.’s treatment at Outback included significant health-care components, in addition to

schooling and room and board.

                Prior to A.L.’s discharge from Outback, his therapists advised that further intensive

treatment was essential to his recovery. His psychologist stated that he had “no business” returning

home and “under no circumstances” should he return home at that time. It was recommended that

A.L. be placed in a residential treatment center. Mitchell and Loras exchanged various emails

regarding further placements for A.L., and Mitchell forwarded Loras a list of potential placements.

She later informed him that only three of the treatment centers would accept A.L. and invited Loras

to participate in the selection process. Loras failed to respond to Mitchell and did not offer any input

on the available opportunities. Although Loras testified that he suggested that A.L. could live with

him and go to school in Austin, the documentary evidence introduced at trial indicates that this offer

was made before A.L.’s enrollment at Outback, and there is no evidence that Loras renewed this

offer when A.L.’s post-Outback placement was being considered, suggested any other placements

for A.L., or made any effort to investigate the possibility of A.L.’s enrollment elsewhere.

                After receiving no response from Loras, Mitchell informed Loras that A.L. had been

accepted into Discovery Ranch and would be enrolled there upon his discharge from Outback.

Despite Loras’s characterization of Discovery Ranch as a “boarding school,” the evidence

established that Discovery Ranch was a licensed residential treatment facility that provided regular

counseling to A.L. (individual, group, and family counseling) and a comprehensive therapeutic



                                                  10
environment. Loras regularly participated in A.L.’s therapy sessions, and he neither attempted to

withdraw him from the program nor asked that he be withdrawn. Indeed, it is undisputed that Loras

encouraged A.L. to remain enrolled at Discovery Ranch when A.L. suggested withdrawing from the

program. Loras testified that he availed himself of the psychological services offered at Discovery

Ranch and was amenable to A.L.’s treatment there but did not want to pay for it because he believed

the costs to be beyond his financial means.

               Following his discharge from Discovery Ranch, A.L. was successfully enrolled in

college and now lives with his father when he is not in school. Mitchell testified that she believes

her son would likely have ended up in jail had he not received treatment at Outback and Discovery

Ranch. Mitchell’s husband testified that A.L. would likely have ended up in jail or a state home for

psychiatric care. Loras testified that he had harbored doubts about whether A.L. could become a

productive adult if he was unable to control his anger.

               There is sufficient evidence in the record that Outback and Discovery Ranch are

intensive, inpatient therapeutic programs that provided mental health-care services to A.L., including

regular counseling and therapy sessions and an environment fully integrating therapeutic goals for

A.L. Moreover, there is no evidence that the expenses were incurred for any purpose other than to

address A.L.’s mental-health issues. Therefore, we conclude that the trial court did not abuse its

discretion in determining that the expenses for these services qualify as health-care expenses,

regardless of whether there are distinct elements of care that, standing in isolation, might not

otherwise independently qualify as mental health-care services. Cf. Rambo, 2002 WL 24033, at *2

(rejecting father’s argument that evidence was insufficient to establish that residential treatment



                                                 11
center provided psychological, physical or health-care services rather than private school). We

overrule Loras’s first and fifth issues.


Requirement of Consent to Treatment or Emergency Circumstances

                In his second and third issues, Loras contends that, even if the expenses incurred at

Outback and Discovery Ranch qualify as reimbursable health-care expenses, he is not responsible

for his proportionate share of the expenses because the divorce decree requires the parents’ joint

consent to any medical treatment and the Agreed Order requires the use of providers covered by

insurance, except in emergency circumstances or by agreement of the parties. It is undisputed that

Mitchell failed to use insurance-approved providers, and Loras contends that he did not consent to

A.L.’s treatment and that the evidence is insufficient to establish that an “emergency” existed.

Because we conclude that the evidence is sufficient to support a finding that Loras effectively

consented to A.L.’s treatment at Outback and Discovery Ranch, we do not reach the issue of whether

the circumstances present an “emergency” within the meaning of the Agreed Order.

                Loras contends that his consent to treatment is required based on (1) two related

provisions in the Agreed Order—paragraph 5 and subparagraph 8(b)—and (2) the provisions in the

divorce decree appointing both parents as joint managing conservators with the right to consent to

A.L.’s medical treatment and to consent on A.L.’s behalf to medical treatment involving psychiatric

and psychological treatment.2 Paragraph 5 of the Agreed Order provides:


       2
         Loras’s and Mitchell’s rights and duties as joint managing conservators are set out in the
divorce decree as follows:

        IT IS ORDERED that the parents, as Joint Managing Conservators, shall each retain

                                                 12
        5. Compliance with Insurance Company Requirements— . . . Each party shall
attempt to use ‘preferred providers,’ or services within the health maintenance
organization, if applicable; however this provision shall not apply if emergency care
is required or agreement between the parties.




the right at all times to receive information from the other concerning the health,
education, and welfare of the child and to the extent possible to confer with the other
party prior to a decision being made concerning the health, education and welfare of
the child.

IT IS FURTHER ORDERED that each party shall have the duty to inform the other
parent in a timely manner of significant information concerning the health, education
and welfare of the child.

Each party is ORDERED and DECREED to inform the other party as soon as
possible, but in no instance no more than 4 hours of any medical condition of the
parties’ child requiring surgical intervention and/or hospitalization.

....

Rights of the Parents at all times. IT IS ORDERED and DECREED that at all times
the parents, as Joint Managing Conservators, shall each retain the following rights:

....

6. to consent to medical . . . treatment during an emergency involving an immediate
danger to the health and safety of the child;

7. to consent for the child to medical . . . treatment involving invasive procedures
and for psychiatric and psychological treatment;

8. to consent for the child to medical . . . care not involving an invasive procedure;
...


                                          13
(Emphases added.) The trial court determined that the use of the word “attempt” in this paragraph

made the use of “preferred providers” or providers employed by a health maintenance organization

discretionary. We hold that the trial court’s interpretation of this provision is not unreasonable.

               Even if the requirement were not discretionary, however, the trial court did not abuse

its discretion in concluding that the exception based on the parties’ agreement was satisfied because

Loras implicitly or explicitly consented to A.L.’s treatment at Outback and Discovery Ranch. There

is sufficient evidence in the record that Loras (1) was informed that A.L. needed immediate

intervention, (2) agreed with A.L.’s removal from his home and did not suggest an immediate

alternative placement, (3) was promptly advised about A.L.’s placement at Outback and was

provided information about the program, (4) was advised of A.L.’s prospective enrollment at

Discovery Ranch and actual enrollment, (5) did not withdraw or seek to withdraw A.L. from either

program or ask that he be withdrawn from either program, and (6) participated in both programs with

A.L. and repeatedly encouraged A.L. not to withdraw from Discovery Ranch. Whether characterized

as consent, ratification, or estoppel from denying lack of consent, the trial court did not abuse its

discretion in concluding that Loras consented to A.L.’s treatment at Outback and Discovery Ranch

to the extent consent is required under paragraph 5 of the Agreed Order or the final divorce decree.

               Loras also contends that we must construe subparagraph 8(b) of the Agreed Order to

require an emergency or written agreement before he is obligated to pay 50% of A.L.’s health-care

expenses. He asserts that any other construction would render subparagraph 8(b)’s provisions

meaningless when that subparagraph is construed together with subparagraph 8(a). In essence, Loras

contends that because both subparagraphs (a) and (b) require a 50/50 apportionment of expenses,



                                                 14
those paragraphs would lack distinctive meaning unless subparagraph (b) is read to require an

emergency or a written agreement as a condition to his obligation to contribute. We disagree. Aside

from the fact that subparagraph 8(b) explicitly applies without regard to an emergency or agreement

of the parties, the paragraphs apply to different situations and thus have meaning without adding the

limitations Loras suggests.

               Paragraph 8 of the Agreed Order provides, in relevant part, as follows:

       8.      Health-Care Expenses Not Paid by Insurance—Subject to the provisions in
               paragraph 5, immediately above, IT IS ORDERED that, if health-care
               expenses are incurred for the child, [Loras] and [Mitchell] shall pay all
               reasonable and necessary health-care expenses not paid by insurance and
               incurred by or on behalf of the child in the following portions:

               a.      If the health-care expenses are incurred by using a HMO or
                       PPO plan, in an emergency, or with the written agreement of
                       the other party, [Loras] is ORDERED to pay fifty
                       (50%) percent and [Mitchell] is ORDERED to pay
                       fifty (50%) percent.

               b.      Except in an emergency or if the other parent agreed in
                       writing, if a party incurs health-care expenses for the child by
                       using the services of health-care providers not employed by
                       the HMO or approved by the PPO, [Loras] is ORDERED to
                       pay fifty (50%) percent and [Mitchell] is ORDERED to pay
                       fifty (50%) percent.

               c.      If [Loras] provides health insurance for the child through an
                       HMO or a PPO that does not provide coverage for the child
                       where the child resides or have network providers in the area
                       where the child resides,[Loras] is ORDERED to pay fifty
                       (50%) percent and [Mitchell] is ORDERED to pay fifty
                       (50%) percent.

               d.      If the child is enrolled in a health-care plan that is not an
                       HMO or a PPO, [Loras] is ORDERED to pay fifty (50%)
                       percent and [Mitchell] is ORDERED to pay fifty
                       (50%) percent.

                                                 15
               e.      If the child was enrolled in a medical assistance program
                       [under state law] and is no longer eligible for coverage in that
                       plan or program, [Loras] is ORDERED to pay fifty (50%)
                       percent and [Mitchell] is ORDERED to pay fifty (50%)
                       percent until health insurance is provided for the child or the
                       child is again eligible for enrollment [in the applicable state
                       health-care plans].

Subparagraph (a) requires a 50/50 split if non-covered health-care expenses are incurred using

covered providers, in an emergency, or with the parties’ written agreement. Subparagraph (b)

requires a 50/50 split if non-covered health-care expenses are incurred because the parties used a

provider not covered by the plan. We do not perceive an ambiguity or irreconcilable conflict in these

provisions merely because they would effectively require a 50/50 split of health-care expenses in

most, if not all, cases and because there might be some overlap in their application. The clear intent

of paragraph 8 is to provide equal apportionment of health-care expenses not covered by insurance

in most, if not all, scenarios. This is evidenced not only by the breadth of subparagraphs (a) and (b)

but also by the inclusion of subparagraphs (c), (d), and (e), which similarly provide for an equal

apportionment of non-covered expenses. An unambiguous contract is construed according to the

plain meaning of its express wording. See, e.g., Feiss v. State Farm Lloyds, 202 S.W.3d 744, 753

(Tex. 2006) (“[W]here the language is plain and unambiguous, courts must enforce the contract as

made by the parties, and cannot make a new contract for them, nor change that which they have

made under the guise of construction.”). The Agreed Order does not require written consent as a

prerequisite to apportionment of expenses under subparagraph 8(b). Indeed, the existence of a

written agreement between the parties is an exception to the application of subparagraph 8(b). And

to the extent consent is required under paragraph 5, to which the apportionment provisions are



                                                 16
subject, we have already concluded that the trial court did not abuse its discretion in determining that

Loras consented to A.L.’s treatment at Outback and Discovery Ranch. Loras’s second and third

issues are therefore overruled.


Offset for Non-Health-Care Child-Support Payments

                In his fourth issue, Loras contends that the trial court abused its discretion by failing

to offset the amounts Loras paid to Mitchell for child support while A.L. was being treated at

Outback and Discovery Ranch. Loras did not plead offset, however. “The right of offset is an

affirmative defense. The burden of pleading offset and of proving facts necessary to support it are

on the party making the assertion.” Brown v. American Transfer & Storage Co., 601 S.W.2d 931,

936 (Tex. 1980); see also Tex. Fam. Code Ann. § 157.008(d) (West 2008) (“An obligor who has

provided actual support to the child during a time subject to an affirmative defense under this section

may request reimbursement for that support as a counterclaim or offset against the claim of the

obligee.”); Tex. R. Civ. P. 94 (“[A] party shall set forth affirmatively . . . any . . . matter constituting

an avoidance or affirmative defense.”). Loras failed to plead offset as a defense in the underlying

action; therefore, the point is waived. We overrule Loras’s fourth issue.


                                            CONCLUSION

                We hold that the trial court did not abuse its discretion in determining that (1) the

expenses incurred on A.L.’s behalf at Outback and Discovery Ranch are fully reimbursable

health-care expenses, (2) use of covered providers is discretionary under the terms of the Agreed

Order, (3) Loras tacitly or explicitly consented to A.L.’s treatment at Outback and Discovery Ranch,



                                                    17
and (4) Loras waived his claim for an offset. For these reasons, the trial court’s judgment is

affirmed.



                                           _________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: July 12, 2012




                                             18
