Summary
holding that appellant's "obligation to reimburse [appellee] was never triggered" because appellee did not "sen[d] any documents 'reflecting the uninsured portion of the health-care expenses' and 'stating the benefits paid' within ten days of his receiving them" as required by the decree
Summary of this case from Troiani v. TroianiOpinion
No. 05-14-01581-CV
03-11-2016
IN THE INTEREST OF M.S.C. AND F.L.C., CHILDREN
On Appeal from the 256th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-02-18056-R
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Myers
This child custody and child support case involves a division of jurisdiction between the Texas and California courts. Mother brings six issues on appeal contending the trial court erred by (a) entering an order that Father did not have to pay Mother's travel expenses to visit one of their children as the California court had ordered and (b) awarding Father judgment against Mother for her failure to pay half the children's medical expenses not paid by insurance. We render judgment that Father take nothing on his claim for unpaid medical child support expenses, and we otherwise affirm the trial court's judgment.
BACKGROUND
The parties were divorced in Texas in 2003 pursuant to an agreed decree. The decree appointed the parties joint managing conservators of their four children with Mother having the exclusive right to determine the children's primary residence. The decree also provided that the parties would share equally the children's medical expenses that were not paid by health insurance. The decree set forth requirements and procedures for one parent to present a claim against the other parent for reimbursement of medical expenses not paid by insurance.
In 2004, Mother and the children moved to California while Father remained in Texas. Mother registered the decree in California pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Texas and California have enacted. See TEX. FAM. CODE ANN. § 152.305; see also CAL. FAM. CODE ANN. § 3445.
In 2006, the Texas trial court determined, pursuant to the UCCJEA, that (1) Texas was an inconvenient forum for litigation of the parties' child-custody issues, (2) California was the more convenient forum, and (3) the Texas court would decline to exercise its continuing jurisdiction over child custody and possession. See TEX. FAM. CODE ANN. § 152.207. The Texas court retained jurisdiction over child support.
One of the parties' children, F., was diagnosed with severe autism. In 2007, the California court modified the custody provisions for F. and ordered that Father have "temporary legal and physical custody" of F. In 2008, the California court ordered that F. "shall remain in [Father's] care and he shall have sole legal custody regarding her treatment and care." The court also ruled that Mother could visit F. in Texas one weekend per month after giving Father appropriate notice. The California order also stated, "[Father] shall provide transportation and accommodations to [Mother] for up to three weekends a year for [Mother] to have contact with [F.] in Texas . . . ."
The 2007 California order also required that F. continue to be enrolled in the Wayman Learning Center in Dallas, which provided educational and therapeutic services for F. On December 2, 2013, Father notified Mother he had moved F. to Melmark in Berwyn, Pennsylvania. The record does not show Father had express permission from the California court to remove F. from the Wayman Learning Center or to move F. to Pennsylvania. However, no issue was raised in this appeal concerning these matters, and we do not address them. The 2008 California order required Father to provide Mother with transportation and accommodations for Mother "to have contact with [F.] in Texas." The parties do not discuss on appeal the effect on this order of F.'s move to Pennsylvania, i.e., whether it requires Father to pay Mother's expenses for travel to Pennsylvania, and we do not address that issue.
In 2012, Father filed in Texas a petition to modify the parent-child relationship. Father asked that the Texas trial court order Mother to pay child support for Father's care of F. Father also asked for judgment against Mother for fifty percent of the medical expenses he incurred caring for F. that were not paid by insurance. In 2013, Father amended the petition to request "that the terms and conditions for access to or possession of the children be modified to provide that Respondent [Mother] visits [F.] at her own expense." In May 2014, Father moved for summary judgment for the unreimbursed medical expenses totaling $125,697.25.
On July 1, 2014, the trial court granted Father's summary judgment and ordered that Mother was "precluded from disputing or contesting" that she owed Father "a judgment up to $125,697.25 for her failure to reimburse him for 50% (fifty percent) of the children's health care expenses through May 30, 2013." On July 24, 2014, the trial court held an evidentiary hearing on Father's petition to modify. The parties' presented evidence at the hearing, including evidence of the unreimbursed medical expenses Father incurred.
On September 19, 2014, the trial court signed the judgment awarding Father $124,647.25 for medical-expense arrearages. The court also ordered Mother to pay child support of $223 per month to Father for F.'s care. The order provided that Father could offset the child support and medical-expense arrearages Mother owed him against his child-support obligation for the remaining minor child in Mother's care. The order also stated under the heading "Visitation" "that [Mother's] visits with the child [F.] shall be at the expense of [Mother]."
Mother now appeals the trial court's order.
REIMBURSEMENT FOR MEDICAL EXPENSES
In her second through sixth issues, Mother contends the trial court erred by rendering judgment for Father for unreimbursed medical expenses because Father did not comply with the procedures set forth in the decree for recovery of medical expenses.
Summary Judgment
In her fourth through sixth issues, Mother contends the trial court erred by granting Father's motion for summary judgment. The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See id. When analyzing a no-evidence summary judgment, we consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (quoting City of Keller, 168 S.W.3d at 824). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). "More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions." Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
The movant on a motion to enforce a child-support order, including an order to provide medical support, has the burden of establishing the amount of support owed. See Beck v. Walker, 154 S.W.3d 895, 903 (Tex. App.—Dallas 2005, no pet.); see also TEX. FAM. CODE ANN. § 154.183(c) (health expenses not covered by medical insurance constitute "additional child support"). To meet this burden, the movant must prove the difference between the payments made by the obligor and the payments required by the support order. Beck, 154 S.W.3d at 903.
Father's one-page motion for summary judgment asserts, "After proper demand, [Mother] has failed to reimburse the sum of $125,697.25 to [Father] for medical expenses incurred through May 30, 2013. There is no evidence that [Mother] has reimbursed [Father] for these medical expenses and no evidence that she does not owe same." No evidence was attached to or submitted with the motion. The trial court granted this motion and ordered that Mother was "precluded from disputing or contesting that [she] . . . owes [Father] a judgment up to $125,697.25 for her failure to reimburse him for 50% (fifty percent) of the children's health care expenses through May 30, 2013."
To the extent Father's motion is a traditional motion for summary judgment, Father had the burden of conclusively establishing that Mother was required to reimburse him for the uninsured medical expenses and that she failed to do so. Because Father's motion for summary judgment was not supported by any evidence, Father did not meet his burden of proof.
To the extent the motion is a no-evidence motion for summary judgment, the motion asserts there was no evidence Mother had reimbursed Father and no evidence "she does not owe same." That Mother owed Father for the medical expenses and that she had not reimbursed him were elements Father had the burden to prove. See Beck, 154 S.W.3d at 903. A no-evidence motion for summary judgment is proper only when there is no evidence to support an essential element on which the nonmovant bears the burden of proof at trial. TEX. R. CIV. P. 166a(i). Because Father bore the burden of proving Mother owed him for medical expenses and that she had not paid them, a no-evidence summary judgment was not proper.
We conclude the trial court erred by granting Father's motion for summary judgment. We sustain Mother's third through sixth issues. Although we conclude the trial court erred, we cannot reverse unless the record shows the error probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). In this case, it appears the trial court, without objection, reconsidered during the trial before the court the question of Mother's liability for the medical support arrearages and the amount of those arrearages. Accordingly, the trial court's error in granting the motion for summary judgment is harmless. See Progressive Cnty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (erroneous grant of summary judgment "can be rendered harmless by subsequent events in the trial court," such as full litigation in a trial of the issue on which summary judgment was granted).
Trial Before the Court on Medical Expenses
In her third issue, Mother contends Father failed to follow the decree's requirement that he send the forms, receipts, bills, and explanations of benefits to Mother within ten days of his receiving them. Mother's issue asserts that Father presented no evidence that Mother owes him any amount of reimbursement for medical expenses.
The decree provided:
10. 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 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; however, this provision shall not apply if emergency care is required. Disallowance of the bill by a health insurer shall not excuse the obligation of either party to make payment; however, if a bill is disallowed or the benefit reduced due to the failure of a party to follow procedures or requirements of the carrier, that party shall be wholly responsible for the increased portion of that bill.
. . . .
Beginning July 1, 2006
Beginning July 1, 2006, if health insurance coverage for the children is provided through a health maintenance organization (HMO) or preferred provider organization (PPO), the parties are ORDERED to use health-care providers who are employed by the HMO or approved by the PPO whenever feasible. If health-care expenses are incurred by using that HMO or PPO plan, Stuart Coe Cruikshank is ORDERED to pay 50 percent and Rachel Cruikshank is ORDERED to pay 50 percent of all reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of the parties' children, including, without limitation, any copayments for office visits or prescription drugs, the yearly deductible, if any, and medical, surgical, prescription drug, mental health-care services, dental, eye care, ophthalmological, and orthodontic charges, from July 1, 2006 and for as long as child support is payable under the terms of this decree. If a party incurs health-care expenses for a child by using the services of health-care providers not employed by the HMO or approved by the PPO, except in an emergency, without the written agreement of the other party, the party incurring the services is ORDERED to pay 100 percent and the other party is ORDERED to pay 0 percent of all reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of the parties' children, as set out above. If a party incurs health-care expenses for a child by using the services of health-care providers not employed by the HMO or approved by the PPO in an emergency or with the written agreement of the other party, the party incurring the services is ORDERED to pay 50 percent and the other party is ORDERED to pay 50 percent of all reasonable and necessary healthcare expenses not paid by insurance and incurred by or on behalf of the parties' children, as set out above.
Beginning July 1, 2006, if the children are enrolled in a health-care plan that is not an HMO or a PPO, Stuart Coe Cruikshank is ORDERED to pay 50 percent and Rachel Cruikshank is ORDERED to pay 50 percent of all reasonable and necessary health-care expenses not paid by insurance and incurred by or on behalf of the parties' children, including, without limitation, the yearly deductible, if any, and medical surgical prescription drug, mental health-care services, dental, eye care, ophthalmological, and orthodontic charges, for as long as child support is payable under the terms of this decree.
11. Payment of Uninsured Expenses - IT IS ORDERED that the party who pays for a health-care expense on behalf of the children shall submit to the other party, within ten days of receiving them, all forms, receipts, bills, and explanations of benefits paid reflecting the uninsured portion of the health-care expenses the paying party incurs on behalf of the children. IT IS FURTHER ORDERED that, within ten days after the nonpaying party receives the explanation of benefits stating benefits paid, that party shall pay his or her share of the uninsured portion of the health-care expenses either by paying the health-care provider directly or by reimbursing the paying party for any advance payment exceeding the paying party's share of the expenses.
12. Exclusions - The provisions above concerning uninsured expenses shall not be interpreted to include expenses for travel to and from the health-care provider or nonprescription medication.
13. Reasonableness of Charges - IT IS ORDERED that reasonableness of the charges for health-care expenses shall be presumed on presentation of the bill to a party and that disallowance of the bill by a health insurer shall not excuse that party's obligation to make payment or reimbursement as otherwise provided herein.
. . . .
16. Place of Transmittal - IT IS ORDERED that all bills, invoices, statements, claims, explanations of benefits, insurance policies, medical insurance identification cards, other documents, and written notices, as well as payments, required to be transmitted by one party to the other under the health-care coverage and health insurance provisions of this decree shall be transmitted by the sending party to the residence of the receiving party.
Father's claim for reimbursement of the medical expenses is a motion for enforcement of the decree. We review a trial court's ruling on a post-divorce motion for enforcement under an abuse of discretion standard. DeGroot v. DeGroot, 369 S.W.3d 918, 921 (Tex. App.—Dallas 2012, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109, (Tex. 1990). Under an abuse of discretion standard, insufficiency of the evidence is not an independent ground for asserting error, but it is a relevant factor in assessing whether a trial court abused its discretion. Beck, 154 S.W.3d at 902. When, as here, the trial court did not file findings of fact and conclusions of law, it is implied that the trial court made all findings necessary to support its order, and we will uphold the findings as long as some evidence of a substantive and probative character exists to support the trial court's decision. In re L.L., 341 S.W.3d 22, 24 (Tex. App.—San Antonio 2010, no pet.).
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, 168 S.W.3d at 810. If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). If the evidence furnishes a reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is legally sufficient evidence, more than a scintilla, to support the fact. Id. When conducting a legal sufficiency review, we must view the evidence in the 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. City of Keller, 168 S.W.3d at 822.
When reviewing the factual sufficiency of the evidence, we examine all the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex. App.—Dallas 2005, pet. denied).
Father, as the movant on the motion to enforce the decree, had the burden of proving the amount of medical expenses Mother was ordered to pay under the decree but had failed to pay. Beck, 154 S.W.3d at 903. Under the decree, Mother's obligation to reimburse Father arose when she received the explanation of benefits showing the uninsured portion of the medical expense. The decree required Father to send the medical-care documents, including the explanations of benefits, to Mother within ten days of his receiving them.
We first consider whether Father provided evidence that he timely submitted the expenses to Mother. In In re I.O.K., 2014 WL 3939379 (Tex. App.—Dallas Aug. 13, 2014, no pet.), the parties' divorce decree required the party seeking reimbursement for medical expenses to send "all forms including explanation of benefits (EOB), receipts, bills, and statements reflecting the uninsured portion of the health-care expenses within thirty days after he or she receives them." Id. at *2. The decree required the parent who did not incur the expense to reimburse the paying parent "within thirty days after the nonincurring party receives the forms, including explanation of benefits, receipts, bills, or statements." Id. In that case, mother was seeking reimbursement from father for the children's medical expenses, but mother did not send the forms within thirty days as required by the decree. Id. at 3. We stated in that case,
If Mother does not send the forms, Father cannot receive them from her. Accordingly, we agree with Father that his obligation to reimburse Mother under the quoted provision arises only after she has complied with that same provision by sending him all forms related to the charge within thirty days of the date she received them.Id. We stated that because mother failed to send the forms within the time required by the decree, father's obligation to reimburse mother was never triggered. Id. We concluded the evidence was legally insufficient to support the awards based on father's failure to reimburse mother. Id.
In this case, the decree required Father to submit to Mother "within ten days of receiving them, all forms, receipts, bills, and explanations of benefits paid reflecting the uninsured portion of the health-care expenses . . . ." Mother's duty to reimburse Father for the medical expenses arose only after Father timely sent Mother "the explanation of benefits stating benefits paid." On December 6, 2012, Father sent Mother a stack of invoices and explanations of benefits dated January 15, 2012 through November 2, 2012. On February 13, 2013, Father sent Mother another group of invoices and explanations of benefits for 2009 through 2011. The record does not show that Father sent any documents "reflecting the uninsured portion of the health-care expenses" and "stating the benefits paid" within ten days of his receiving them. Therefore, Mother's obligation to reimburse Father was never triggered. See id.
The record shows Father sent ten invoices from the Wayman Learning Center from December 12, 2012 to May 1, 2013, to Mother within ten days of receiving them, but those documents do not show what amount, if any, was paid by insurance. The record does not contain any explanation of benefits or other document for these transactions showing what amount, if any, was paid by insurance. Therefore, these were not documents "reflecting the uninsured portion of the health-care expenses . . . stating the benefits paid" that would trigger Mother's obligation to reimburse Father.
Father argues these matters were affirmative defenses Mother was required to plead and prove, not elements of Father's claim. An affirmative defense is "[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." Defense: Affirmative Defense, BLACK'S LAW DICTIONARY (10th ed. 2014); see In re Office of Attorney Gen., 422 S.W.3d 623, 631 n.10 (Tex. 2013) (quoting Black's Law Dictionary). Affirmative defenses to a motion to enforce a support order include the statutory defense under section 157.008(a) that the party receiving support had voluntarily relinquished the child to the party paying support and other defenses such as limitations and res judicata. See TEX. FAM. CODE ANN. § 157.008(a) (West 2014); O'Carolan v. Hopper, 414 S.W.3d 288, 297, 305 (Tex. App.—Austin 2013, no pet.). Father had the burden of proving Mother was required by the decree to pay for the medical care and that she had failed to pay. Beck, 154 S.W.3d at 903. As discussed above, Mother's obligation to reimburse Father was triggered by his timely sending her the explanations of benefits stating the amount paid by insurance. Therefore, these were elements of Father's burden of proving an arrearage, not affirmative defenses.
Father also asserts Mother did not preserve any trial court error because Mother did not object at trial but raised the lack of evidence of these facts for the first time in her brief on appeal. However, a complaint about the legal or factual sufficiency of the evidence from a case tried without a jury "may be made for the first time on appeal in the complaining party's brief." TEX. R. APP. P. 33.1(d). The parties tried this case before the trial court, not before a jury. Therefore, Mother could raise the insufficiency of the evidence for the first time in her appellant's brief.
We conclude that the trial court abused its discretion by determining Mother was in arrears for medical support reimbursement and by awarding Father judgment of $124,647.25 against Mother for medical support arrearages. We sustain Mother's third issue. We render judgment that Father take nothing on his claim for unpaid medical child support expenses.
Because of our disposition of Mother's third issue, we do not address Mother's second issue, which also challenged the sufficiency of the evidence to support the award of medical support arrearages against Mother.
FATHER'S PAYMENT OF MOTHER'S TRAVEL EXPENSES
In her first issue, Mother contends the trial court erred by ordering "[Mother's] visits with the child [F.] shall be at the expense of [Mother]."
In 2006, the trial court determined that Texas was "an inconvenient forum pursuant to Section 152.207 of the Texas Family Code for litigation of the custody issues, and that the more convenient forum for custody issues is California." By "custody issues," we presume the trial court meant "child custody determination[s]" under the UCCJEA. See TEX. FAM. CODE ANN. § 152.207(a). In 2008, in its order providing for the parents' custody of and visitation with the children, the California court ordered that "[Father] shall provide transportation and accommodations to [Mother] for up to three weekends a year for [Mother] to have contact with [F.] in Texas . . . ." In 2013, Father requested in his amended motion for modification filed in Texas "that the terms and conditions for access to or possession of the children be modified to provide that Respondent [Mother] visits [F.] at her own expense." The Texas trial court granted Father's request.
The UCCJEA defines "child custody determination" as meaning, "a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child. The term includes permanent, temporary, initial, and modification orders. The term does not include an order relating to child support or another monetary obligation of an individual." TEX. FAM. CODE ANN. § 152.102(3) (West 2014).
Father argues the Texas court's order was not subject to the UCCJEA because it was "an order relating to . . . [a] monetary obligation of an individual," which the act expressly excepts from the definition of "child custody determination." See id. Father argues that because the California court's jurisdiction was limited to child custody determinations as defined by the UCCJEA and the Texas court had jurisdiction over all matters that were not child custody determinations under the UCCJEA, the California court lacked jurisdiction in 2008 to enter the order requiring Father to pay Mother's travel expenses, and the Texas court had jurisdiction to order that Mother's visits to F. would be at her own expense.
Mother asserts that because of her limited finances, she could not travel to visit F. without Father paying her travel expenses. Therefore, Mother argues, the California court's order was an "order of a court providing for . . . visitation with a child" and was part of the child custody determination under the UCCJEA. She asserts that because the Texas courts had no jurisdiction under the UCCJEA to render an order "providing for . . . visitation with a child," the Texas trial court lacked jurisdiction to set aside the California court's order and the Texas court lacked jurisdiction to order that Mother's visits with F. would be at her own expense.
Father's motion and the trial court's order are collateral attacks on the California court's order. See Fuhrer v. Rinyu, 647 S.W.2d 315, 318 (Tex. App.—Corpus Christi 1982, no writ). The burden was on Father to establish that the California court did not have jurisdiction to issue the order. See Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex. 1975) ("We think the burden was on appellees to establish that the [California] judgment was not final and subsisting or that the court did not have jurisdiction to render it.") (quoting Garman v. Reynolds, 284 S.W.2d 262, 264 (Tex. Civ. App.—Fort Worth 1955, writ ref'd)).
Mother first argues that Father failed to establish the Texas court's jurisdiction because Father's pleadings did not allege the information required by section 152.209(a). See TEX. FAM. CODE ANN. § 152.209(a). However, section 152.209(b) provides, "If the information required by Subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished." Id. § 152.209(b). Under this subsection, the failure to allege the information required by subsection (a) does not deprive the trial court of jurisdiction but makes it discretionary with the court whether to delay the proceedings until the information is pleaded. See Nash v. Salter, 760 N.W.2d 612, 620 (Mich. Ct. App. 2008) (discussing section 152.209); see also UNIFORM CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT, § 209, comment (UNIF. LAW COMM'N 1997) (subsection (b) follows the majority of jurisdictions holding that failure to comply with the predecessor act's pleading requirements did not deprive the court of jurisdiction to make a custody determination). We reject Mother's argument.
The pleading requirements of section 152.209(a) apply only in "a child custody proceeding." See TEX. FAM. CODE ANN. § 152.209(a). As discussed below, Father's motion and the Texas court's order were not in "a child custody proceeding" under the UCCJEA; therefore, the requirements of section 152.209(a) did not apply.
Mother also argues that the Texas court lacked jurisdiction to set aside the California court's order that Father pay her travel expenses because that order was part of the California court's child custody determination under the UCCJEA, and the California court had sole jurisdiction to make child custody determinations. Although no Texas case appears to discuss whether allocation of a parent's travel expenses for visitation with a child are part of a "child custody determination" under the UCCJEA, the Supreme Court of Texas has discussed whether a parent's travel costs were part of a "custody determination" under the UCCJEA's predecessor statute, the Uniform Child Custody Jurisdiction Act (UCCJA), passed by the Texas Legislature in 1983. See In re S.A.V., 837 S.W.2d 80 (Tex. 1992); TEX. FAM. CODE ANN. § 11.52(2) (repealed 1995). That statute defined "custody determination" as meaning
See Act of May 2, 1983, 68th Leg., R.S., ch. 161, § 1, sec. 11.52(2), 1983 Tex. Gen. Laws 691, 692, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen. Laws 113, 282.
a court decision and court orders and instructions providing for the custody of a child, including visitation rights, but does not include a decision relating to child support or any other monetary obligation of any person.TEX. FAM. CODE ANN. § 11.52(2). Like the definition of "child custody determination" under the UCCJEA, this earlier statute's definition of "custody determination" expressly included orders concerning "visitation" and expressly excluded orders relating to child support or other monetary obligations. Compare id. with id. § 152.102(3). In S.A.V., the parties lived in Minnesota during their marriage, the divorce proceedings, and for a short time after their divorce. After mother moved to Amarillo with the children, the Minnesota court modified the decree to provide the parties could deduct their visitation expenses from their child support obligations. In re S.A.V., 837 S.W.2d at 82. This modification was made because of father's travel expenses to see the children. Id. Two years later, mother filed suit in Texas seeking elimination of the offset for travel expenses and modification of the joint conservatorship provisions. Father filed suit the following day in Minnesota asking that mother pay additional child support during times the children were in his possession and that the offset for visitation expenses be maintained. Id. at 82-83. Father also filed a special appearance in the Texas suit. Id. at 83.
In S.A.V., the supreme court differentiated between the types of jurisdiction necessary for the Texas court to adjudicate the issues of custody and visitation versus the jurisdiction to adjudicate the issues of support and visitation expenses. The supreme court determined that the issues of support and visitation expenses were analogous to claims for debt and that the Texas court had to have personal jurisdiction over father. Id. However, custody determinations under the UCCJA "are status adjudications not dependent upon personal jurisdiction over the parents." Id. at 84. By considering separately the jurisdiction requirements for custody determinations (which by definition included visitation rights) and allocation of a parent's travel expenses to exercise visitation rights, the supreme court indicated that the allocation of a parent's travel expenses for exercise of visitation rights was not part of a custody determination under the UCCJA. The definitions of "custody determination" in the UCCJA and "child custody determination" in the UCCJEA are, in the context of the case before us, practically the same. Accordingly, we apply the supreme court's interpretation in S.A.V. and conclude that Mother's travel expenses for visiting F. are not a "child custody determination." Therefore, the California court lacked jurisdiction to impose that monetary obligation on Father, and the Texas court had jurisdiction to allocate to Mother her travel expenses for visitation with F.
Although the Full Faith and Credit Clause of the U.S. Constitution, interests of comity, and the disfavoring of collateral attacks on foreign judgments ordinarily require enforcement of foreign judgments, those doctrines do not apply when the court issuing the challenged order lacked subject-matter jurisdiction to do so. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (collateral attacks); In re E.H., 450 S.W.3d 166, 171 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (full faith and credit); H. Heller & Co. v. Louisiana-Pacific Corp., 209 S.W.3d 844, 849 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (constitutional principles of federalism and comity). Because jurisdiction to adjudicate whether Father could be required to pay Mother's travel expenses lay in Texas and not California, the collateral attack on the California court's provision requiring Father to pay Mother's travel expenses is not barred by the Full Faith and Credit Clause, interests of comity, or the disfavoring of collateral attacks. We conclude the trial court did not err by ordering that Mother's "visits with the child [F.] shall be at the expense of [Mother]." We overrule Mother's first issue.
CONCLUSION
We reverse the trial court's judgment to the extent it awards Father judgment of $124,647.25 against Mother, and we render judgment that Father take nothing on his claim for unpaid medical child support expenses. In all other respects, we affirm the trial court's judgment. 141581F.P05
/Lana Myers/
LANA MYERS
JUSTICE
JUDGMENT
On Appeal from the 256th Judicial District Court, Dallas County, Texas
Trial Court Cause No. 02-18056-R.
Opinion delivered by Justice Myers. Justices Fillmore and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED insofar as it awards appellee Stuart Cruikshank judgment of $124,647.25 against appellant Rachel Ward, and we RENDER judgment that appellee Stuart Cruikshank take nothing on his claim for unpaid medical child support expenses. In all other respects, the judgment of the trial court is AFFIRMED. We ORDER that appellant Rachel Ward recover her costs of this appeal from appellee Stuart Cruikshank. Judgment entered this 11th day of March, 2016.