                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                              '
 ROLAND G. MORALES,                                          No. 08-10-00318-CV
                                              '
                        Appellant,                                Appeal from
                                              '
 v.                                                           131st District Court
                                              '
 DIANA L. RICE f/k/a                                        of Bexar County, Texas
                                              '
 DIANA L. MORALES,
                                              '               (TC # 94-CI-06591)
                        Appellee.

                                         OPINION

       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



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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



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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.



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                                        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



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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



                                               -6-
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.



                                               -7-
       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



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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



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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’


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.

                                                  - 10 -
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



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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




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fees of $10,0002 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


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.

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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.




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