                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                             ___________________________
                                  No. 02-17-00435-CV
                             ___________________________

                         IN THE INTEREST OF T.A., A CHILD




                         On Appeal from the 367th District Court
                                 Denton County, Texas
                            Trial Court No. 2012-50502-367


                      Before Kerr and Pittman, JJ., and Gonzalez, J. 1
                        Memorandum Opinion by Justice Pittman



       1
         The Honorable Ruben Gonzalez, Jr., Judge of the 432nd District Court of Tarrant County,
sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h)
of the Texas Government Code. See Tex. Gov’t Code Ann. § 74.003(h).
                           MEMORANDUM OPINION

                                    INTRODUCTION

       The crux of this infelicitous appeal is whether the trial court erred by including

the sum of $37.37 per month to pay for a child’s dental insurance coverage in a final

order in a suit to modify the parent-child relationship. Ironically, the child’s divorced

parents do not disagree that the father was to pay the child’s dental insurance or even

that the current cost of the child’s dental insurance is $37.37 per month, only whether

the father was to be directly responsible for the insurance or was instead supposed to

reimburse the mother for the cost of the insurance. 2 Although this court has serious

concerns that this appeal is both a drain of the parties’ resources and a waste of the

taxpayers’ time and money, for the reasons set forth below, we reverse the trial court’s

judgment and remand this case to the trial court for further proceedings.


       As this court reminded the parties at oral argument, the nature of this appeal
       2

brings to mind the sage advice Abraham Lincoln provided to new attorneys over
150 years ago:

       Discourage litigation.      Persuade your neighbors to compromise
       whenever you can. Point out to them how the nominal winner is often
       a real loser; in fees, expenses, and waste of time. As a peace-maker; the
       lawyer has a superior opportunity of being a good man. There will still
       be business enough.

Abraham Lincoln, Lincoln’s Notes for a Law Lecture, in America’s Lawyer-Presidents: From
Law Office to Oval Office 146–47 (Norman Gross ed., 2004) (emphasis in original); cf.
Thomas Jefferson, Autobiography (1821), reprinted in Thomas Jefferson: Writings 53 (Merrill
D. Peterson, ed., 1984) (It is the trade of lawyers “to question everything, yield
nothing, and talk [or write] by the hour.”).



                                            2
                                    BACKGROUND

I.    Mother and Father Divorce and Follow-Up with Enforcement and
      Modification Actions Related to Their Daughter.

      The long journey to this appeal began six years ago, on February 13, 2013,

when the trial court signed a final decree of divorce ending the marriage of Appellant

J.A. (Father) and Appellee A.C. (Mother). Father and Mother had one child, T.A.

(Daughter), who was almost two years old at the time of the divorce.

      From the record, it appears that Mother and Father have engaged in

continuous conflict over Daughter since their divorce. A year after the divorce was

granted, on February 17, 2014, Father filed a motion for enforcement of the residency

restriction against Mother; on July 21, 2015, he filed a first amended motion for

enforcement of the residency restriction, for temporary restraining order, for

modification, and for declaratory judgment; and Mother returned fire by filing an

original counterpetition to modify the parent-child relationship a few months later on

September 11, 2015.3

II.   Mother and Father Agree that Father Will Provide Dental Insurance for
      Daughter.

      On October 27, 2015, the trial court held a bench trial on the Enforcement and

Modification Actions. At the bench trial, the parties represented to the trial court that


      3
       For simplicity, we refer to these actions collectively as the “Enforcement and
Modification Actions.”



                                           3
they had reached an agreement as to all matters except for the drop-off and pick-up

location for Daughter when the parents exchange possession. Before the parties

presented testimony concerning their respective positions regarding the proposed

drop-off and pick-up location, the trial court instructed them to have their agreement

read into the record. The following exchange ensued:

      The Court:                 So might as well get the agreements that you
                                 have out on the table now.

                                 So, Counsel, . . . do you want to call a witness
                                 or—

      [Father’s Attorney]:       Well—

      [Mother’s Attorney]:       (Overlapping) I’m happy to—

      The Court:                 —(overlapping) anybody going to recite it in
                                 the record?

      [Father’s Attorney]:       I was going to say, if we just read the—

      The Court:                 (Overlapping) Okay. And, I’ll say, listen
                                 carefully, because if something is left out
                                 or if a word is wrong in it, you need to
                                 be—bring that to the attention of the
                                 attorneys so that it is corrected. Because
                                 them reciting it in the record and you-all
                                 agreeing to it, it’s pretty much going to
                                 ensure that your agreements will be the
                                 order of the Court.         Okay?    So if
                                 something—

      [Father]:                  Yes, ma’am.

      The Court:                 —happens, just, I’ll say, correct it for the
                                 attorneys.

      [Mother]:                  Yes, ma’am.


                                          4
[Emphasis added.]

       Mother’s attorney then proceeded to recite Mother and Father’s agreement into

the record. With regard to Daughter’s dental insurance, Mother’s attorney stated that

Father’s

       insurance enrollment period also opens up on November 1st. He has
       agreed to provide his insurance enrollment information to [Mother] so
       that they can review the coverages and, if it’s available, add dental and
       vision coverage for the child because currently there’s just medical
       coverage in place.

             [Father] will remain financially responsible for the health
       insurance.

Obviously, nothing in this agreement requires Father to reimburse Mother for

Daughter’s dental insurance.       Neither Mother nor Father corrected Mother’s

attorney’s recitation of the agreement in the record. In fact, both Mother and Father

testified under oath that Mother’s attorney had correctly recited their agreement into

the record.4

III.   Combat Continues for Two More Years, and a Final Order Requiring
       Father to Reimburse Mother $37.37 a Month for Dental Insurance is
       Signed.

       Despite the parties’ “agreement” that was recited into the record and


       4
         Whether the agreement between Mother and Father was ever reduced to
writing is unknown. Certainly, if the agreement were reduced to writing it would have
clarified much of the confusion in this matter and possibly alleviated the need for this
appeal. In any event, if there was a written agreement, it is not a part of the appellate
record.



                                           5
confirmed by Mother and Father on October 27, 2015, the acrimonious hostilities

continued. In December 2015, Mother filed a combined motion to compel and

motion for sanctions, and in August 2017, she filed a combined motion to compel,

motion to enter final order, and motion for sanctions, asking that Father be

sanctioned for his failure to provide financial information in accordance with the

parties’ agreement. Almost two months later, on October 18, 2017—three years and

eight months after the actions were initiated and almost two years after the bench

trial—the trial court signed the final order in suit affecting parent-child relationship

(Final Order).

      The Final Order, which was “APPROVED AS TO FORM ONLY” by

Mother’s and Father’s attorneys, included a paragraph covering dental insurance for

Daughter (the Dental Insurance Reimbursement):

             IT IS FURTHER ORDERED THAT [Father] is ORDERED to
      pay to [Mother] 100% of the monthly cost of insuring the child with
      dental insurance, with the first payment due and payable on the first day
      of June, 2016, and a like payment on the same day each month thereafter
      in accordance with this order. At the time of the signing of this Order,
      the monthly dental insurance obligation for [Daughter] is $37.37. IT IS
      ORDERED that such reimbursement insurance payments shall be made
      by [Father] to [Mother] in monthly payments of $37.37 through the state
      disbursement unit at Texas Child Support Disbursement Unit, P.O. Box
      659791, San Antonio, Texas 78265-9791, and then remitted by that
      agency to [Mother] for the support of the child.

Father did not file any post-judgment motions or otherwise object to the Final Order

or the Dental Insurance Reimbursement before the trial court. However, whether the




                                           6
Dental Insurance Reimbursement comports with the parties’ agreement recited into

the record at the October 27, 2015 bench trial is the crux of this appeal.

IV.   Father Appeals the Final Order’s Requirement that He Reimburse
      Mother for Daughter’s $37.37 Per Month Dental Insurance.

      Waiting until the last possible day to appeal, Father filed a notice of appeal

challenging the Dental Insurance Reimbursement. In his brief, Father brings one

issue with three parts, contending that the trial court erred in ordering him to

reimburse Mother $37.37 for Daughter’s dental insurance because (1) the October 27,

2015 agreement between the parties did not include an agreement that Father would

reimburse Mother $37.37 per month for Daughter’s dental insurance; (2) the October

18, 2017 Final Order was not an agreed order regarding the provision that Father

would reimburse Mother $37.37 per month for Daughter’s dental insurance; and

(3) there is no evidence or insufficient evidence to support the Dental Insurance

Reimbursement. Mother chose not to file a responsive brief. However, both parties

appeared at oral argument on October 23, 2018. At oral argument, neither Mother

nor Father disputed that Father agreed to be responsible for Daughter’s dental

insurance, only whether Father was to reimburse Mother for such coverage as part of

his monthly child support obligation or instead cover Daughter’s dental insurance

through his own dental insurance plan.




                                           7
                                     DISCUSSION
I.    Standard of Review

      We review the trial court’s modification of orders governing child support for

an abuse of discretion.5 In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth

2002, pet. denied) (op. on reh’g); see In re A.B.H., 266 S.W.3d 596, 601 (Tex. App.—

Fort Worth 2008, no pet.) (op. on reh’g) (applying standard); see also In re L.R.S.,

No. 02-09-00244-CV, 2011 WL 754406, at *4–6 (Tex. App.—Fort Worth Mar. 2011,

no pet.) (mem. op.) (applying abuse-of-discretion standard to issues related to

children’s dental insurance in appeal of modification and enforcement order). A trial

court abuses its discretion if it acts arbitrarily and unreasonably or without reference

to guiding principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007). A trial court also abuses its discretion when it does

not analyze or apply the law properly. Iliff, 339 S.W.3d at 78. Legal and factual

sufficiency are not independent grounds of error in modification cases, but they are

relevant factors in deciding whether the trial court abused its discretion. T.D.C.,

91 S.W.3d at 872.




      5
        For suits affecting the parent-child relationship filed on or after September 1,
2018, the Texas Legislature has expressly stated that a parent’s child-support
obligation includes the costs of dental insurance. See Tex. Fam. Code Ann.
§ 154.183(a)(2).



                                           8
       Evidence is legally insufficient if (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.        Ford Motor Co. v. Castillo,

444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v. Martinez,

977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In comparison, when we review the

factual sufficiency of the evidence, we will set aside the finding only if, after

considering and weighing all of the evidence in the record pertinent to that finding,

we determine that the credible evidence supporting the finding is so weak, or so

contrary to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

       In determining whether there has been an abuse of discretion because the

evidence is legally or factually insufficient to support the trial court’s decision, we

engage in a two-pronged inquiry: (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? T.D.C., 91 S.W.3d at 872.




                                            9
II.   There is No Evidence Supporting the Trial Court’s Decision to Order
      Father to Reimburse Mother $37.37 Per Month for Daughter’s Dental
      Insurance.

      In the third subpart of Father’s issue on appeal, he argues that there is no

evidence, or alternatively, insufficient evidence supporting the trial court’s findings

that he must reimburse Mother $37.37 per month for Daughter’s dental insurance.

To resolve this issue, we must determine whether, based on the elicited evidence, the

trial court abused its discretion.         See In re H.S., No. 02-17-00379-CV,

2018 WL 5832120, at *6 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.).

      We thoroughly examined the record in this case and conclude that Father’s no-

evidence complaint has merit. At the October 27, 2015 bench trial and at oral

argument before this court, the parties conceded that Father was responsible for

Daughter’s dental insurance.     However, no evidence in the record suggests or

supports the finding that Father agreed to reimburse Mother for such coverage or that

the amount of such coverage was $37.37 per month, as the Final Order reflects.

Accordingly, no evidence supports the trial court’s finding that Father reimburse

Mother the sum of $37.37 per month for Daughter’s dental insurance. As a result, we

hold, on this record, that the trial court abused its discretion by including the Dental

Insurance Reimbursement in the Final Order.

      We sustain the third subpart of Father’s issue on appeal, which is dispositive,

and do not reach the first two subparts. See Tex. R. App. P. 47.1.



                                          10
                                     CONCLUSION

      It is with great consternation that, having sustained the third, dispositive

subpart of Father’s sole issue, we reverse the trial court’s Final Order with regard to

the Dental Insurance Reimbursement and remand this case to the trial court to

conduct further proceedings and render a final order consistent with the evidence or

the parties’ agreement.6 See Tex. R. App. P. 43.2(d), 43.3.




                                                      /s/ Mark T. Pittman
                                                      Mark T. Pittman
                                                      Justice

Delivered: May 16, 2019


      6
        On remand, we are confident that Mother, Father, and their respective
attorneys will be able to communicate promptly and effectively to resolve these
prolonged proceedings with a minimum of judicial involvement. Cf. John F. Kennedy,
Great Quotes from Great Leaders 87 (Peggy Anderson comp., 1990) (“Let us never
negotiate out of fear but let us never fear to negotiate.”). In doing so, the attorneys
are encouraged to remember their various obligations as members of the Texas Bar,
such as, “I will be loyal and committed to my client’s lawful objectives, but I will not
permit that loyalty and commitment to interfere with my duty to provide objective
and independent advice”; “I will advise my client that we will not pursue conduct
which is intended primarily to harass or drain the financial resources of the opposing
party”; and “I will not quarrel over matters of form or style, but I will concentrate on
matters of substance.” Texas Lawyer’s Creed—A Mandate for Professionalism, reprinted in
Texas Rules of Court 735–37 (West 2018); see also Dondi Properties Corp. v. Commerce Sav.
& Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1988) (en banc) (“We attempt to carry
out our responsibilities in the most prompt and efficient manner, recognizing that
justice delayed, and justice obtained at excessive cost, is often justice denied.”).



                                           11
