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upholding trial court's award of attorney's fees under section 157.167 where, following parties' settlement on substantive issues, trial court incorporated terms of settlement agreement into final order and expressly found that respondent had taken actions in violation of agreed divorce decree
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NO. 03-14-00430-CV
05-04-2016
Alexander G. Fedorov, Appellant v. Cecilia Cavuto, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
NO. 10-1363-FC2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDINGMEMORANDUM OPINION
Alexander G. Fedorov appeals a final trial-court order that concluded a round of post-divorce litigation between him and his ex-wife, appellee Cecilia Cavuto. At this juncture, he challenges only awards of attorney's fees made in Cavuto's favor. We will affirm the trial court's order.
As we will explain shortly, appellee remarried during the pendency of the litigation and obtained the new surname of Cavuto, and she was so identified in the order on appeal. When originally docketed, the style of this appeal referred to Ms. Cavuto by her former surname of Fedorov. We have corrected the caption above and have similarly used the Cavuto surname to identify appellee throughout this opinion.
BACKGROUND
The parties' union was ended by an August 2011 agreed final divorce decree that, among other terms, named them joint managing conservators of two children of the marriage and gave Cavuto the exclusive right to designate the children's primary residence. By the following spring, the parties had filed competing suits to enforce various provisions of the decree and Fedorov had sued to modify the conservatorship provisions to grant himself the exclusive right to determine the children's residence. As they relate to the issues on appeal, the key disputes underlying this round of litigation arose principally in December 2011, after Cavuto informed Fedorov that she would be marrying another man (the ceremony would take place the following March). In response to this news, as Fedorov later acknowledged in testimony, he hired a private investigator to determine whether Cavuto was permitting her new fiancé to stay overnight with her while she had possession of the children, which would (at least until the marriage ceremony was performed) violate the terms of a "morals clause" that the parties had included in their agreed divorce decree. Fedorov insisted that his actions were motivated by a well-founded or at least good-faith belief that the fiancé's overnight presence presented risks of harm to the children ranging from emotional damage to potential sexual abuse. Cavuto, on the other hand, characterized Fedorov's actions (and others that would follow) as a component of a broader campaign of harassment in which she accused him of engaging during this same time period. In addition to the conduct discussed below, she cited, e.g., Fedorov's alleged filing of an animal-abuse charge against her, his calling police after she had allegedly left the children with a relative during an overnight trip, and his admitted assistance of another ex-husband of hers in waging that husband's own child-custody battle with her. Further augmenting her theory of Fedorov's motives, Cavuto claimed that Fedorov had told her that, notwithstanding their divorce, he still considered her his wife and that they would ultimately reunite. These contrasting portrayals of "bad mother" versus "vindictive ex" would remain primary respective themes of the parties throughout the litigation.
The children are both female and, at the time, were four and five years of age.
According to Fedorov, he soon learned from the children that the fiancé was, in fact, staying overnight with Cavuto while they were present and—more critically for Fedorov—that the children would at times sleep in the same bed as the couple. Professing a concern that the children might be at risk of sexual abuse, and claiming that the revelation about the alleged sleeping arrangements had corresponded to behavioral changes he had perceived in the children, Fedorov began a campaign of what he portrayed as his attempts to have possible wrongdoing investigated and the children's welfare protected. In addition to filing a complaint against the couple with Child Protective Services (in which he also made allegations of alcohol abuse and neglectful supervision), on December 8 Fedorov contacted the office of the pediatrician who had been designated under the children's health-insurance coverage as their "primary care physician" or "PCP," Dr. Brooks Booker. The precise nature of this conversation is somewhat disputed, but the parties agree that Fedorov did not speak directly to Dr. Booker, but only to a nurse, and that Fedorov requested a referral to a pediatric psychiatrist. To this, the parties agree, the nurse responded by advising Fedorov to consult the children's insurer to identify an in-network psychiatrist and to call back if a referral was needed. Fedorov proceeded thereafter to schedule an appointment for the children with Dr. Kelly Baker, a child psychologist, for December 29. The nurse had also recommended that Fedorov take the children to a local hospital to undergo a sexual-assault examination. While he declined that specific suggestion (according to the nurse's contemporaneous notes, the referral was "what [Fedorov] really wants"), on December 13 Fedorov brought the children to a second physician whom he admits was a personal friend of his, Dr. David Gogulski, to be evaluated for possible sexual abuse. Following the appointment, Dr. Gogulski indicated that he had found no objective evidence of sexual abuse but opined that the matter should be investigated further through CPS and the child psychologist Fedorov had already contacted; there was also evidence that Gogulski thereafter "wrote a referral" of the children for that purpose.
Gogulski's notes reflect that he also made a report to CPS.
On the same day as the children's appointment with Dr. Gogulski, Fedorov sent Cavuto an email confronting her with his allegation about her fiancé's overnight stays and sleeping with the children, informing her that "I have taken [the children] to Dr. Gogulski to be evaluated for possible sexual abuse," and indicating that Gogulski had "referred them to further counseling with a specialist to further investigate this matter." "Until this investigation is over and I have confirmation that my girls are not being sexually molested," Fedorov demanded that the overnight visits cease. In a subsequent email dated December 20, Fedorov provided Cavuto the date and time of the children's "first appointment" with Dr. Baker, further identifying Baker by name. A few days later, Cavuto responded via email and voiced her objection to the children's appointment with Dr. Baker, further asserting that proceeding with the appointment would violate terms of their divorce decree. Nonetheless, Fedorov proceeded to take the children to their scheduled appointment with Dr. Baker on December 29. In a subsequent email to Cavuto, Fedorov asserted that he was within his rights under the divorce decree and would proceed with further psychological counseling despite her wishes (now also citing, along with his concerns about sexual abuse, that Cavuto had been "lying to the girls [by] telling them [her fiancé] is, in fact, a part of the family").
Cavuto has steadfastly denied Fedorov's allegations about shared sleeping arrangements and risk of harm to the children, further pointing out that the CPS investigations were ultimately concluded with "ruled-out" dispositions. But the parties' dispute regarding the legality of Fedorov's efforts to obtain psychological counseling for the children focused more narrowly on the following provision of their agreed divorce decree, which we will subsequently term "Paragraph 2" for ease of reference:
IT IS ORDERED that Alexander Gregory Fedorov, as a parent joint managing conservator, shall have the following rights and duty:There is no dispute that Fedorov did not obtain Cavuto's agreement that he could consent to the children's December 29 appointment with Dr. Baker, nor (at least at the time) did he obtain her agreement to any further psychiatric or psychological treatment for the children. Their differences, rather, centered on whether Fedorov had obtained "the recommendation of the child[ren]'s primary care physician" that Paragraph 2 requires "in the absence of mutual agreement." Essentially, Fedorov maintained at the time that he had obtained the required "recommendation" from Dr. Gogulski, whom he characterized as a "primary care physician" of the children alongside Dr. Booker, while Cavuto insisted that only a "referral" (in the sense that term was used by the children's health insurer) from Dr. Booker would do.
. . .
2. the right, subject to the agreement of [Cavuto], to consent to psychiatric and psychological treatment of the children and in the absence of mutual agreement the recommendation of the child's primary care physician shall control in all instances.
. . . .
Following Fedorov's post-appointment email, Cavuto filed her enforcement petition, in which she alleged in part that Fedorov had violated Paragraph 2 by taking the children to Dr. Baker and that he would continue to commit similar violations in the future. She obtained a temporary restraining order (later extended) that barred Fedorov from taking the children to a mental-health professional without either Cavuto's agreement or "a referral by the child's primary care physician." A few days later, and in what he acknowledged was an attempt to respond to Cavuto's legal theories, Fedorov obtained from Dr. Booker (the physician whom Cavuto contended was the children's sole "primary care physician") a written "referral" (in the sense that term was used by the children's health insurer) for the children to see Dr. Baker. Fedorov subsequently filed his suits for enforcement and modification, relying in large part on allegations related to overnight stays, sleeping arrangements, and perceived risks of harm to the children.
The parties subsequently entered into agreed temporary orders that mutually prohibited each other from taking the children to any mental-health professional without the other's agreement until further order of the trial court. The parties also agreed to terms enforcing the decree's prohibition against overnight stays and also specifically prohibiting either party from allowing the children to sleep in the same bed as an adult male other than Fedorov. Thereafter, the trial court heard evidence on further temporary orders. Following the hearing, the court continued the aforementioned limitations in effect but also appointed an amicus attorney for the children and ordered the attorney to investigate Fedorov's allegations of possible sexual abuse or other harm to the children. Depending on the results of the amicus attorney's investigation, the court indicated, it would revisit the advisability of enlisting the services of health-care professionals. Pending that investigation, the court cautioned the parties against further attempts to enlist mental-health professionals in their dispute.
The parties' competing claims regarding alleged risks to the children and mental-health counseling—and most other claims they had asserted in the litigation—were ultimately resolved through an April 2013 mediated settlement agreement (MSA) between Fedorov, Cavuto, and the children's amicus attorney. Through the MSA, Fedorov abandoned his claims seeking modification of conservatorship and agreed to a new term addressing counseling. That term provided that he and Cavuto would jointly select and fund a counselor for the children (with the amicus attorney acting as a tie-breaker in the event they could not agree on one), cooperate in scheduling an initial visit, and follow the counselor's recommendations as to treatment thereafter. By then, the evidence reflects, both Cavuto and Fedorov had expressed concern that the children had shown signs of emotional distress, although the focus had shifted away from the sexual-abuse concerns Fedorov had initially raised.
E.g., Fedorov had reported "meltdowns" he attributed to Cavuto's pressuring the children to lie to him about such matters as the movies Cavuto was permitting them to view, while Cavuto claimed that one of the children had become unusually dramatic and "clingy" when separated from her even temporarily. Additionally, Dr. Booker—who, at Fedorov's insistence, had advocated counseling in a letter to the amicus attorney—cited emotional trauma to the children attributable to the parties' divorce and subsequent acrimony.
The issues remaining in dispute included claims for attorney's fees asserted by both Cavuto and Fedorov, and these were tried to the bench on the following day. After further post-trial proceedings, the trial court ultimately signed a final order that, in material part, incorporated the MSA's terms, found that the children's amicus attorney had discharged all of her duties, and made three sets of attorney's fee awards to Cavuto: • The trial court awarded Cavuto $10,244.20 in trial-level attorney's fees under color of Family Code Section 157.167, which mandates that the court "shall order the respondent [to an enforcement motion] to pay the movant's reasonable attorney's fees and all court costs in addition to any other remedy[] [i]f the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child." Additionally, if the court finds that "the enforcement of the order with which the respondent failed to comply was necessary to ensure the child's physical or emotional health or welfare," said award "may be enforced by any means available for the enforcement of child support, including contempt." Tracking these statutory elements, the trial court found and concluded that Cavuto had "incurred attorney's fees in the amount of at least $10,244.20, which were necessary to ensure the children's physical or emotional health or welfare, because of Alexander Fedorov's failure to comply with the provisions for possession of or access to the children contained in the Final Decree of Divorce." The parties concur that the relevant underlying "provisions . . . contained in the Final Decree of Divorce" was Paragraph 2, and in that regard the trial court found specifically that "[o]n December 29, 2011, Alexander Fedorov took the children to Dr. Kelly Baker without the agreement of Cecilia Cavuto or the recommendation or referral by the children's primary care physician, Dr. Brooks Booker." • The trial court made a second award of $10,244.20 in trial-level attorney's fees to Cavuto under the general fee-shifting provision in Family Code Section 106.002, which permits an award of reasonable attorney's fees in suits affecting the parent-child relationship that can be enforced as a judgment for debt. The court found that Cavuto had incurred attorney's fees "of at least" this amount "in connection with the other issues involving the children and these fees were reasonable and necessary." • The trial court awarded Cavuto a total of $40,000 in appellate attorney's fees, conditioned on Fedorov's pursuit of an ultimately unsuccessful appeal—$20,000 if Fedorov pursued the unsuccessful appeal to this Court, an additional $15,000 if Fedorov pursued it through a petition for review to the Texas Supreme Court that was denied, and a further $5,000 if review was granted but Fedorov ultimately lost nonetheless. Fedorov challenges each of these three awards in this appeal.
The evidence included the reporter's record from the earlier hearing on temporary orders.
Tex. Fam. Code § 157.167(b).
Id.; see Tucker v. Thomas, 419 S.W.3d 292, 297 (Tex. 2013) (explaining that Section 157.167 awards of attorney's fees characterized as additional child support are not subject to constitutional prohibition against imprisonment for "debt" and can therefore be enforced through contempt power, "including the possibilities of confinement, garnishment of wages, and suspension of the obligor's driver's license").
See Tex. Fam. Code § 106.001; see also Tucker, 419 S.W.3d at 297-98 (holding that Section 106.002, in contrast to Section 157.167, did not authorize courts to classify attorney's fee awards as additional child support).
ANALYSIS
In what he styles as two issues on appeal, Fedorov challenges, respectively, (1) the predicates for the trial court's award of attorney's fees made enforceable as additional child support under Family Code Section 157.167; and (2) the reasonableness and necessity of each of the three categories of attorney's fees the court awarded.
Attorney's fees under Family Code Section 157.167
Within his first issue, Fedorov contends chiefly that the evidence was legally and factually insufficient to establish the statutory element required to trigger a mandatory award of attorney's fees under Family Code Section 157.167 in this case—that he committed any violation of Paragraph 2, or more specifically, that he violated Paragraph 2 "[o]n December 29, 2011, [when he] took the children to Dr. Kelly Baker without the agreement of Cecilia Cavuto or the recommendation or referral by the children's primary care physician, Dr. Brooks Booker," as the trial court found. Fedorov acknowledges that he took the children to Dr. Baker, a child psychologist, without obtaining the consent or agreement of Cavuto as Paragraph 2 required. In fact, Fedorov does not dispute that he acted entirely unilaterally in obtaining the children's appointment with Dr. Baker and taking them there for counseling, informing Cavuto of the upcoming appointment only after arranging it and proceeding without her consent, and that he thereafter vowed to her that he would continue with counseling for the children regardless of her wishes. Fedorov insists, however, that his actions did not violate Paragraph 2 because he had obtained the "recommendation" of the children's "primary care physician" that the provision required "in the absence of mutual agreement" between he and Cavuto. He urges that the evidence was legally and factually insufficient to establish that he acted without this "recommendation" and instead affirmatively established these facts conclusively or at least by the great weight and preponderance.
Because Cavuto bore the burden of proof on her enforcement motion, see Woody v. Woody, 429 S.W.3d 792, 798 (Tex. App.—Houston [14th Dist.] 2014, no pet.), Fedorov can prevail on his legal-sufficiency challenge 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." Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Legere v. Legere, No. 03-12-00046-CV, 2013 WL 692450, at *3 (Tex. App.—Austin Feb. 22, 2013, no pet.) (mem. op.). In making this determination, we view the evidence in the light most favorable to the trial court's findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). When reviewing the factual sufficiency of the evidence here, we consider and weigh all of the evidence in the record, and set aside the finding only if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). Under either standard, we defer to the credibility determinations made by the fact-finder (here, the trial court) and do not merely substitute our judgment for its. See City of Keller, 168 S.W.3d at 816-17, 819-20, 822 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency).
In support of this assertion, Fedorov points to evidence regarding three sets of communications he had with health-care providers that, in his view, each suffice as a "recommendation" from the children's "primary care physician" that satisfies Paragraph 2: • Fedorov's December 9, 2011, phone conversation with Dr. Booker's nurse. As previously explained, the nurse responded to Fedorov's request for a referral by advising him to consult the children's insurer to identify an in-network psychiatrist and to call back if a referral was needed. • Communications from Dr. Gogulski in connection with the children's December 13, 2011, appointment with that physician, including his "referral" of the children for psychological counseling. • The "referral" (in the sense used by the children's health insurer) made by Dr. Booker in January 2012, after the children had already seen Dr. Baker on December 29, and which Fedorov obtained in response to Cavuto's legal arguments complaining that Fedorov had violated Paragraph 2 by failing to obtain such a "referral" from Booker. The materiality of the evidence on which Fedorov relies—and, in turn, the viability of his sufficiency challenges—turns initially on construction of Paragraph 2, namely, on the scope and meaning of "the recommendation of the child's primary care physician" that "shall control in all instances" where there is "the absence of mutual agreement" by Cavuto "to consent to psychiatric and psychological treatment of the children." In Fedorov's view, either Dr. Booker (the children's designated "PCP" for insurance purposes) or Dr. Gogulski was a "primary care physician" within the meaning of Paragraph 2, reasoning that both are physicians and both provide "primary care" as that term is used in the health-care field, providers of routine outpatient care who can make referrals for specialized care. In contrast, Cavuto maintains that "primary care physician" as used in Paragraph 2 refers more specifically to the "primary care physician" or "PCP" who is so designated with the children's health-insurance carrier. This becomes apparent, she urges, when viewing Paragraph 2 in the context of other decree provisions that require the parties to attempt to conform to all requirements of the children's health-insurance policy necessary to ensure maximum coverage. Under this view of Paragraph 2, she continues, Dr. Booker would be the children's "primary care physician," pointing to evidence—undisputed by Fedorov—that Booker was the "primary care physician" or "PCP" designated with the children's health-insurance carrier.
See Primary Care, Merriam-Webster's Medical Desk Dictionary 668 (revised ed. 2005) (defining "primary care" as "health care provided by a medical professional . . . with whom a patient has initial contact and by whom the patient may be referred to a specialist for further treatment").
Cavuto refers to a provision of the decree titled, "Health Care," which states in part:
Compliance with Insurance Company Requirements - Each party is ORDERED to conform to all requirements imposed by the terms and conditions of the policy of health insurance covering the children in order to assure maximum reimbursement or direct payment by the insurance company of the incurred health-care expense, including but not limited to requirements for advance notice to any carrier, second opinions, and the like. Each party is ORDERED to attempt to use "preferred providers," or services within the health maintenance organization, if applicable . . . .
The parties similarly join issue as to the nature of the "recommendation" that Paragraph 2 required Fedorov to obtain from the children's "primary care physician." Again emphasizing the perceived interplay of the decree's insurance requirements, Cavuto insists that Paragraph 2's use of "recommendation" is effectively limited to a referral made by the children's "PCP"—i.e., Booker—as that term is commonly used in the insurance-coverage context. Apart from this, Cavuto disputes that either the December 9 communication with Dr. Booker's nurse or the January 2012 referral from Dr. Booker would suffice as a "recommendation" under Paragraph 2, emphasizing that the former never mentioned Dr. Baker by name and that the latter occurred after the appointment at issue. Fedorov urges that "recommendation" in Paragraph 2 merely comprehends the colloquial sense of "recommendation" as the "act of giving advice or counsel" and accuses Cavuto of extratextually altering Paragraph 2's meaning.
See, e.g., Recommendation, The American Heritage College Dictionary 1441 (3d ed. 1993).
We construe divorce decrees in the same manner as we do other court judgments. Further, because the divorce decree here is an agreed judgment, we apply the legal principles that govern construction of contracts. Under either set of principles, we construe the decree as a whole and attempt to harmonize and give effect to the entire instrument. If the material provisions of the decree are unambiguous-i.e., there is only one reasonable construction of them-courts have no discretion but to give effect to the language used as a matter of law. If, on the other hand, the decree is subject to two or more reasonable interpretations, it is ambiguous, and courts must inquire to ascertain its true meaning and intent. Whether the decree is susceptible to only one reasonable construction or more—i.e., unambiguous versus ambiguous—is a question of law.
See Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009) (citing Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003)).
See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000).
See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005); Shanks, 110 S.W.3d at 447 (citing Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976)). Consequently, Fedorov is mistaken in suggesting that we cannot consider the interplay of Paragraph 2 with decree provisions that he purportedly did not argue explicitly below.
See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012); Hagen, 282 S.W.3d at 901.
El Paso Field Servs., 389 S.W.3d at 806; Shanks, 110 S.W.3d at 447.
See Hagen, 282 S.W.3d at 901-02 (citing Shanks, 110 S.W.3d at 447); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).
Reading Paragraph 2 as a whole, the nature and scope of "the recommendation of the child's primary care physician" must be informed by its function within the context of the decisional mechanisms established by that provision—it is a tie-breaker or substitute for Cavuto's agreement to the "psychiatric and psychological treatment of the children" for which Fedorov desires to consent on their behalf (here the children's December 29, 2011, appointment with Dr. Baker). Similar decisional mechanisms also appear in other decree provisions that govern Fedorov's power to consent to "medical, dental, and surgical treatment involving invasive procedures" on the children and to decisions regarding the children's education. The converse is true as well—Cavuto's power to consent to the children's psychiatric or psychological treatment, invasive medical procedures, and educational decisions is limited by counterpart provisions that require Fedorov's agreement, with the same tie-breaker mechanisms available if she cannot obtain it.
Immediately preceding Paragraph 2, a Paragraph 1 provides that Fedorov has "the right, subject to the agreement of [Cavuto], to consent to medical, dental, and surgical treatment involving invasive procedures and in the absence of mutual agreement the recommendation of the child's primary care physician shall control in all instances."
A Paragraph 6 provides in relevant part that Fedorov has "the right, subject to the agreement of [Cavuto], to make decisions concerning the children's education and in the absence of a mutual agreement of the parties, the recommendation of the appropriate school counselor, or any other individual the parties can mutually agree upon, shall control in all instances . . . ."
Even under Fedorov's version of the facts, neither of the communications with Dr. Booker or his office is evidence of a "recommendation," as that term is used in Paragraph 2, with respect to the children's appointment with Dr. Baker. Leaving aside whether statements from Dr. Booker's nurse could suffice as "the recommendation of the child's primary care physician," Fedorov acknowledges that Dr. Baker was never mentioned during that conversation. Consequently, the nurse did not make a "recommendation" that can substitute for or control over the absence of Cavuto's agreement to allow Fedorov to consent to the children's appointment with Dr. Baker. The same is true of the referral Fedorov obtained from Dr. Booker in January 2012—by this time, as the trial court found, Fedorov had already taken the children to their appointment with Dr. Baker on December 29 with neither Cavuto's agreement nor a "recommendation" from Dr. Booker.
Fedorov also points to testimony by Dr. Booker in which Dr. Booker later characterized his nurse's statements as a "recommendation" for psychological counseling. However, Dr. Booker also admitted that Dr. Baker was never mentioned by name. More broadly, absent proof that Dr. Booker used "recommendation" in the sense that term is used in Paragraph 2, his testimony is immaterial or incompetent as proof of Fedorov's compliance with that provision.
For similar reasons, the trial court did not err in determining that Dr. Booker was the sole relevant "primary care physician" for the children under Paragraph 2, to the exclusion of Dr. Gogulski (and leaving aside whether any of Gogulski's communications otherwise sufficed as "recommendations"). Fedorov's construction of "the child's [or children's] primary care physician" merely as any physician who provides "primary care" would imply that Fedorov (or, for that matter, Cavuto, under her counterpart provisions of the decree) could circumvent the others' parental rights by choosing from any of a vast range of alternative "primary care physicians," including providers the children had never seen previously. Such a construction is not reasonable in the context of Paragraph 2, which plainly contemplates a single defined "primary care physician" to serve as the tie-breaker or decision-maker in lieu of parental agreement regarding mental-health care for each child.
Perhaps recognizing as much, Fedorov also suggests that "primary care physician" denotes "primary" in the sense of a preexisting substantial doctor-patient relationship, and points to his own testimony to the effect that he had previously taken the children to Dr. Gogulski, including one visit within the preceding year. But Cavuto counters with her testimony that Dr. Booker, not Dr. Gogulski, had been the physician to whom the children had been routinely taken for care for at least a year preceding the events at issue and would, therefore, have been the "primary care physician" that the parties contemplated when they had signed their agreed divorce decree a few months earlier. The trial court was within its discretion as fact-finder to credit Cavuto's testimony on this point and discount Fedorov's. More to the point, Cavuto insists, the parties had used "primary care physician" unambiguously as a term of art meaning the physician so designated for insurance purposes. In either case, we conclude that the trial court did not err in determining that Dr. Booker was the children's "primary care physician" while Dr. Gogulski was not.
See City of Keller, 168 S.W.3d at 819-20; Golden Eagle Archery, 116 S.W.3d at 761.
Accordingly, legally and factually sufficient evidence supports the trial court's finding that Fedorov "took the children to Dr. Kelly Baker without the agreement of Cecilia Cavuto or the recommendation . . . by the children's primary care physician, Dr. Brooks Booker." This finding, in turn, supports the trial court's conclusion that Fedorov violated Paragraph 2, triggering a mandatory award of reasonable and necessary attorney's fees and costs under Family Code Section 157.167.
We need not address whether this conclusion is also supported by the court's alternative finding that Fedorov failed to obtain a referral from Dr. Booker. See Tex. R. App. P. 47.1.
See Tex. Fam. Code § 157.167(b).
Fedorov next complains of the trial court's additional determination that Cavuto's enforcement of Paragraph 2 had been "necessary to ensure the children's physical or emotional health or welfare," which had the effect of making the attorney's fees attributable to that legal action enforceable as additional child support. The chief thrust of Fedorov's argument is that there was legally or factually insufficient evidence that his actions in arranging mental-health counseling for the children, which he had vowed to continue regardless of Cavuto's wishes, had presented any threat of harm to the children's physical or emotional health or welfare. He insists "nothing in the record supports the notion that [his] effort to seek counseling (or anything else he might have done for his children) somehow jeopardized his children's health or welfare or exposed them to possible harm." This is especially so, Fedorov adds, given that Cavuto ultimately agreed to a provision for counseling in the MSA, which the trial court incorporated into its final order.
See id.
Fedorov also seems to contend that Cavuto waived recovery of the attorney's fees as child support because she did not obtain specific findings as to why or how the counseling had endangered the children. It was sufficient that the trial court found, as it did, that the attorney's fees awarded were "necessary to ensure the children's physical or emotional health or welfare, because of Alexander Fedorov's failure to comply with the provisions for possession of or access to the children contained in the Final Decree of Divorce," namely Paragraph 2; it was not required to recite the evidence on which this finding was based. See Flanary v. Mills, 150 S.W.3d 785, 792-93 (Tex. App.—Austin 2004, pet. denied) ("The trial court need only enter findings . . . on ultimate or controlling issues, rather than on mere evidentiary issues. . . . An evidentiary issue is one the trial court may consider in deciding the controlling issue, but is not a controlling issue itself."); Jackson v. Jackson, 552 S.W.2d 630, 633 (Tex. Civ. App.—Austin 1977, no writ) (holding trial court did not err in refusing to make fact findings evidentiary in character); Harding v. Harding, 461 S.W.2d 235, 236 (Tex. Civ. App.—San Antonio 1970, no writ) ("A trial court is under no duty to support its findings of fact by a recital of the evidence on which such findings are based. It discharges its obligation when it makes findings on controlling, or ultimate, as distinguished from evidentiary, facts."). Fedorov also complains that the trial court's final order does not comply with the formal requirements for enforcement orders under Family Code Section 157.166, but this argument is misplaced here—as indicated previously, the parties ultimately resolved the subject matter of Cavuto's enforcement motion through their MSA, in which they agreed to a new term governing counseling, and the issue before us concerns only the attorney's fees Cavuto is entitled to recover for legal services in prosecuting that motion prior to the partial settlement.
As Cavuto points out, Fedorov overlooks that the benefit or advisability of counseling, per se, was not the sole consideration before the trial court. Whether Fedorov's violation of Paragraph 2 threatened the children's health or welfare was also a function of his motives and goals in pursuing it. In essence, Fedorov asks us to credit his self-characterization as a caring father who acted purely out of a good-faith concern that his vulnerable young children had been placed in a dangerous situation. The trial court heard evidence that could reasonably support contrary inferences, starting with a broader pattern of conduct—e.g., Fedorov's accusing Cavuto of child neglect and even animal abuse in complaints to authorities, enlisting the aid of police in response to a custody dispute, and admittedly aiding a fellow ex-husband of Cavuto in waging his own disputes with her. Such conduct could fairly be perceived as vexatious, harassing, and spiteful, and it is also significant that the onset of this conduct corresponded to Cavuto's revelation to Fedorov that she would be marrying another man, contrary to Fedorov's previously articulated insistence or hope that Cavuto would ultimately return to him. The court could likewise have considered evidence that through his unilateral actions, Fedorov was presenting starkly one-sided accounts of the underlying concerns to the various health-care providers with whom he interacted. Among the permissible inferences one might draw is one Cavuto suggests—a primary goal of enlisting a favorable testifying expert rather than objective concern with the children's welfare. In that vein, Cavuto also points out that despite Fedorov's professions of concern about possible sexual abuse and the like, Fedorov did not pursue court approval for counseling once she filed her motion for enforcement and obtained temporary orders, nor attempt to seek or arrange it even after the parties executed the MSA providing for counseling. Such tactics, especially in the context of his broader pattern of behavior toward Cavuto, could reasonably be perceived as indicative not of a caring father with a genuine concern about his children's welfare, but of a litigant willing to deploy his own children as weaponry against their mother.
While Fedorov urges that any such request would have been a "futility," his failure to try nonetheless tends to belie his portrayal of himself as a concerned parent driven solely by the perceived fear of harm to his children.
While Fedorov vigorously disputes the truth of these inferences regarding his behavior and motives, the sole question we are empowered to decide as an appellate court is whether the trial court was legally permitted to draw these inferences from the evidence at hand. We conclude that it was. And such facts and inferences, in turn, would abundantly support the trial court's findings that Fedorov's pursuit of psychological counseling in violation of Paragraph 2, the impetus for Cavuto's enforcement action, had presented a risk of harm to the children's emotional health or welfare.
See City of Keller, 168 S.W.3d at 822, 827-28 (focus of legal-sufficiency analysis is whether evidence would enable "reasonable and fair-minded" fact-finder to make findings and draw inferences it did); Golden Eagle Archery, 116 S.W.3d at 761 (in factual-sufficiency review, appellate court defers to trial court's determinations of credibility and weight of evidence in determining whether contrary evidence so outweighs it as to render findings manifestly unjust).
We overrule Fedorov's first issue.
Reasonableness and necessity of fees awarded
In his second issue on appeal, Fedorov disputes the legal and factual sufficiency of the evidence as to the reasonableness and necessity of each of the three categories of attorney's fees the court awarded. Within this challenge, Fedorov also asserts that Cavuto failed to segregate between fees awarded as additional child support under Family Code Section 157.167, fees incurred in defending his modification action, and fees attributable to other unrelated matters. We have reviewed the record and find no reversible error. We overrule Fedorov's second issue.
See Tex. R. App. P. 47.1. --------
CONCLUSION
We affirm the trial court's order.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: May 4, 2016