                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-020-CV


RONALD L. BRENNAN                                                       APPELLANT

                                            V.

KIM CEDENO                                                               APPELLEE

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           FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

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I. INTRODUCTION

      In four issues, Appellant Ronald L. Brennan contends the trial court erred by

not enforcing a final decree of divorce requiring Appellee Kim Cedeno to reimburse

Brennan for one-half of their children’s health care expenses—specifically,

orthodontia. W e are asked to determine whether the trial court abused its discretion

by ruling that the orthodontia in this case was an “invasive procedure” which, per the




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           See Tex. R. App. P. 47.4.
terms of the divorce decree, required the consent of both parties prior to treatment

to trigger Cedeno’s obligation to pay. W e reverse and remand.

II. BACKGROUND

      On March 20, 2002, Brennan and Cedeno divorced and were appointed joint

managing conservators of their two children, K.B. and R.B. 2 The divorce decree

granted each parent “the joint right with the other parent to consent to medical,

dental, and surgical treatment involving invasive procedures” and, during respective

periods of possession, the “right to consent for the children to medical and dental

care not involving invasive procedures.” The decree also required both parents to

pay “fifty percent of all reasonable and necessary expenses . . . including, without

limitation, . . . dental, . . . and orthodontic charges, for as long as child support is

payable under terms of this decree.”

      A. Both Children Receive Braces

      In February 2007, both children received braces on their teeth. On September

15, 2008, Brennan filed a First Amended Motion For Enforcement of Child Support

Order alleging that Cedeno had “failed and refused to pay fifty percent of the

children’s health care bills that were provided to her by certified mail” each month for

sixteen consecutive months beginning February 2007. For each of these sixteen

alleged violations, Brennan asked the court to hold Cedeno in contempt until she

complied with the divorce decree’s terms by paying $3,388.08 in child support

arrearages.

      2
           Both children live with Cedeno.

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      B. Evidence Regarding Whether Braces Are Invasive

      At   the   hearing,   Brennan   modified   the   amount    of   arrearages    to

$3,122.80—Cedeno’s half of the orthodontic expenses. 3          During the hearing,

Brennan testified that (1) he discussed the necessity of the two children having

braces with Cedeno before the braces were applied, 4 (2) Cedeno initially stated she

did not want the children to have braces, and (3) she refused to pay her half of the

costs for the braces because the procedure was not recommended by a second

orthodontist to whom Cedeno took the children for another opinion. Brennan also

testified that about a year before getting braces, K.B. had a tooth removed. Brennan

submitted into evidence the summaries of medical expenses he calculated Cedeno

owed and the bills and explanations of benefits he mailed to Cedeno each month. 5

      Cedeno testified that K.B. was already in braces before she obtained a second

opinion. She took R.B. to an orthodontist who recommended an alternate procedure

to prevent R.B. from being in braces for another “year or two or three.”           She

acknowledged, however, that both children probably would have eventually needed

braces, just not at that time, but she did not think the braces should be removed.


      3
        Brennan submitted evidence that Cedeno paid half of all medical expenses
he incurred on behalf of the children except the costs relating to the application of
braces to the children’s teeth.
      4
        On cross-examination, Brennan admitted he had no documentation of his
discussions with Cedeno about the braces before they were applied to either child.
      5
       Brennan submitted no explanations of benefits concerning the braces into
evidence.

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Cedeno also contended that she had a joint right to consent prior to treatment

because the application of braces is an invasive procedure.

      After receiving requested letter briefs from each party regarding whether the

application of braces constitutes an “invasive procedure,” the trial court denied

Brennan’s motion. The trial court included the following in its findings of fact and

conclusions of law:

      3. At the time of the hearing, the parties stipulated through their
      attorneys that the consent of both parents was necessary for medical,
      dental and surgical treatment involving “invasive procedures.”

      5. The testimony was uncontroverted that the procedure in this
      particular case involved not only actual entry into the oral cavity of the
      child but the removal of at least one tooth and the orthodontic
      manipulation and realignment of the remaining teeth.

      6. The [c]ourt finds that the orthodontia involved in this case was an
      invasive procedure.”

III. DISCUSSION

      Brennan presents four issues to this court. First, he contends the trial court

erred in ruling that the orthodontia in this case was an “invasive procedure” as that

term is used in the divorce decree because there was no evidence presented at trial

to support the court’s ruling. Second, he contends the ruling was against the great

weight and preponderance of the evidence. Third, Brennan contends the trial court

thus abused its discretion. And, fourth, he contends that the trial court erred by not

awarding him judgment. Because they are dispositive, we first address Brennan’s

third and fourth issues.



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         A. Standard of Review

         W e review the trial court’s ruling on a motion for enforcement of a divorce

decree under an abuse of discretion standard. Murray v. Murray, 276 S.W .3d 138,

143 (Tex. App.—Fort W orth 2008, no pet.). To determine whether a trial court

abused its discretion, we must decide whether the trial court acted without reference

to any guiding rules or principles; in other words, we must decide whether the act

was arbitrary or unreasonable. Perry Homes v. Cull, 258 S.W .3d 580, 602 (Tex.

2008); Low v. Henry, 221 S.W .3d 609, 614 (Tex. 2007). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate court

would have ruled differently in the same circumstances. Perry Homes, 258 S.W .3d

at 602.

         An abuse of discretion does not occur when the trial court bases its decision

on conflicting evidence. In re Barber, 982 S.W .2d 364, 366 (Tex. 1998) (orig.

proceeding). Furthermore, an abuse of discretion does not occur as long as some

evidence of substantive and probative character exists to support the trial court’s

decision. Butnaru v. Ford Motor Co., 84 S.W .3d 198, 211 (Tex. 2002). A trial court

has no discretion in determining what the law is or applying the law to the facts, even

when the law is unsettled. In re Prudential Ins. Co. of Am., 148 S.W .3d 124, 135

(Tex. 2004); In re J.P.C., 261 S.W .3d 334, 336 (Tex. App.—Fort W orth 2008, no

pet.).




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      To determine whether there has been an abuse of discretion in a family law

case, we consider (1) whether the trial court had sufficient evidence upon which to

exercise its discretion and (2) whether the trial court erred in applying its discretion.

In re M.C.F., 121 S.W .3d 891, 895 (Tex. App.—Fort W orth 2003, no pet.). In

appropriate cases, legal and factual sufficiency are relevant factors in assessing

whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806

S.W .2d 223, 226 (Tex.1991); J.P.C., 261 S.W .3d at 336.

      B. Analysis

      The pertinent portion of the divorce decree provides each parent the “joint

right with the other parent to consent to medical, dental, and surgical treatment

involving invasive procedures.” Thus, as a prerequisite to receiving reimbursement

for dental expenses incurred by or on behalf of the minor children, the divorce

decree requires that both parents consent to an invasive procedure.

      In its findings of fact, the trial court relies on “uncontroverted testimony” that

the application of braces involved “not only actual entry into the oral cavity of the

child but the removal of at least one tooth 6 and the orthodontic manipulation and

realignment of the remaining teeth.”

      6
        Brennan conceded that (1) the removal of K.B.’s tooth was an invasive
procedure, (2) the 2006 tooth removal was done in preparation for braces; and (3)
Cedeno should not have to pay “whatever the charge was for having one tooth
removed.” Brennan also stated he did not believe the cost of the tooth removal was
included in the amount of reimbursement he sought from Cedeno for the braces.
Because Brennan conceded the tooth removal was an invasive procedure, we do
not address this portion of the trial court’s finding of fact on appeal.

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        1. Legally Insufficient Evidence Of “Invasive Procedure”

        The Texas Family Code does not define “invasive procedure.” However,

Appellant proposed a definition contained in the Texas Health and Safety Code,

which defines “invasive procedure” as a “surgical entry into tissues, cavities, or

organs; or repair of major traumatic injuries associated with . . . the manipulation,

cutting, or removal of any oral or perioral tissues, including tooth structure, during

which bleeding occurs or the potential for bleeding exists.” Tex. Health & Safety

Code Ann. § 85.202(3) (Vernon 2009). The Texas State Board of Dental Examiners

has incorporated the same definition in its Rules and Regulations. Tex. Bd. of

D e n ta l   E x a m ’r s   R u le s   and   R e g u la tio n s ,   R u le   1 0 8 .2 3   (2 0 1 0 ),

http://www.tsbde.state.tx.us/documents/rules/SBDE-Rules-Feb2010.pdf. Cedeno

does not argue that Brennan’s proposed definition is inapplicable in this case and

proposes no alternative definition. Indeed, she contends the trial court did not fail

to follow guiding principles because it referenced the legislative definition urged by

Brennan in its letter ruling.

        Because Cedeno did not object to Brennan’s definition—and even contends

that using Brennan’s own definition, the orthodontic treatment involved here was

invasive—we will accept that definition for the purpose of this case. See Ancira

Enter., Inc. v. Fischer, 178 S.W .3d 82, 93 (Tex. App.—Austin 2005, no pet.) (holding

that appellee’s definition governed the appellate court’s legal sufficiency review

because the appellant did not object to its submission). W e accordingly consider


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whether there is legally sufficient evidence of an “invasive procedure” as defined by

Brennan. See id. The legislature’s definition of “invasive procedure” is not simply

“actual entry into the oral cavity,” but a surgical entry. Additionally, we agree with

Brennan’s contention that using the trial court’s interpretation, even teeth cleaning

or flossing by a dental hygienist could be considered an “invasive procedure”

because the procedure involves entry into the oral cavity. Thus, we must hold the

evidence is legally insufficient to support the trial court’s finding that the braces in

this case are an invasive procedure because of “actual entry into the oral cavity.”

      2. Insufficient Evidence As to Nature of Procedure

      Aside from Brennan’s testimony that he spoke with Cedeno about the need

for the children to have braces and Cedeno’s testimony that her orthodontist

suggested use of an “expander” for R.B. to cut short a portion of the time needed for

braces at her young age, we find no evidence in the record to support the trial court’s

finding that the application of braces involved “manipulation and realignment of the

remaining teeth.” Moreover, there was no testimony concerning the procedure for

applying the braces. Cf., Waltz v. Waltz, 776 S.W .2d 320, 322 (Tex. App.—Houston

[1st Dist.] 1989, no writ) (holding no evidence existed to support the reasonableness

of medical bills incurred on behalf of minor children as required by decree). W e hold

there was no probative evidence to support the trial court’s finding of fact that the

braces, in this case, are an invasive procedure. Although it is uncontroverted that

braces were applied in both childrens’ mouths, the evidence is insufficient to support


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an implied finding of fact that the braces in this case did or did not involve a surgical

entry into the children’s mouths or the “repair of major traumatic injuries.”

      W e sustain Brennan’s third and fourth issues and hold that the trial court

abused its discretion by finding braces in this case to be an “invasive procedure” and

erred in denying Brennan’s motion. See M.C.F., 121 S.W .3d at 895. Because we

sustain Brennan’s third and fourth issues, we need not address his remaining issues.

See Tex. R. App. P. 47.1.

IV. CONCLUSION

      Having sustained Brennan’s third and fourth issues, we reverse the judgment

of the trial court and remand this case for further proceedings consistent with this

opinion.



                                                ANNE GARDNER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.

DELIVERED: May 20, 2010




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