Dani Roisman v. Gavriella Etana Roisman

Houston, Texas – Divorce lawyer represented Appellee with an enforcement action for medical child support.

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Dani and Gavriella have three children together. Jane is their oldest child.

Dani and Gavriella divorced in February 2018 when Jane was 15 years old.

Dani and Gavriella signed an Agreed Divorce Decree in which they agreed to

be joint managing conservators of the children with Gavriella having the right to

designate the children's primary residence. As joint managing conservators, each

parent had "the right, subject to the agreement of the other parent conservator, to

consent to psychiatric and psychological treatment of the children.” Dani and

Gavriella also agreed that "in the event the parties do not reach mutual agreement

on decisions regarding psychiatric treatment of [Jane] (other than in an emergency),

1 The underlying case is In the Interest of E.H.R., J.A.R., and S.H.R, Children, cause

number 2017–45578, in the 246th District Court of Harris County, Texas, the

Honorable Angela Graves Harrington, presiding.

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then the parties shall follow the recommendation of [Jane's] treating psychiatrist,

Abigail Nodler, M.D.”

The decree ordered Dani to pay child support to Gavriella and to provide

medical insurance for the children. It also contained provisions setting out how the

parties would split medical costs not paid by health insurance. The decree provided

that "the reasonable and necessary health-care expenses” for medical, dental, and

psychiatric costs for the children that are "not reimbursed by health insurance is

allocated as follows: Gavriella Etana Roisman is ORDERED to pay 1/3 percent and

Dani Roisman is ORDERED to pay 2/3 percent of the unreimbursed health-care

expenses.”

The decree also provided that the party incurring the health-care expense on

behalf of a child was ordered to furnish forms, receipts, bills, and explanations of

benefits reflecting the uninsured portion within 30 days after the incurring party

received them. The non-incurring party was then required to pay, within 30 days of

receipt, his or her percentage either by paying the provider directly or by reimbursing

the incurring party for any advance payment exceeding that party's percentage. But,

if the incurring party "fail[ed] to submit to the other party forms, receipts, bills,

statements, and explanations of benefits reflecting the uninsured portion of the

health-care expenses within thirty days after the incurring party receives them,” then

the non-incurring party was required to pay his or her percentage of the uninsured

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portion "either by paying the health-care provider directly or by reimbursing the

incurring party for any advance payment exceeding the incurring party's percentage

of the uninsured portion of the health-care expenses within 120 days after the

nonincurring party receives the forms, receipts, bills, statements, and/or explanations

of benefits.”

The Agreed Divorce Decree further provided:

Each party is ORDERED to use "preferred providers,” or services

within the health maintenance organization or preferred provider

network, if applicable. Disallowance of the bill by a health insurance

company shall not excuse the obligation of either party to make

payment. Excepting emergency health-care expenses incurred on

behalf of the children, if a party incurs health-care expenses for the

children using "out-of-network” health-care providers or services, or

fails to follow the health insurance company procedures or

requirements, that party shall pay all (100%) of such health-care

expenses incurred absent: (1) written agreement of the parties

allocating such health-care expenses; or (2) further order of the Court.

On June 5, 2020, Gavriella filed a "Motion for Enforcement of Child Support

Order,” which she later amended. In her amended motion, Gavriella asserted that, as

required by the provisions of the Agreed Divorce Decree, Dani failed to reimburse

her for his 2/3 share of the uninsured portions of 10 bills for Jane's psychiatric

treatment that Gavriella had paid. Gavriella alleged that, on January 7, 2020, she sent

written demand to Dani requesting reimbursement of his 2/3 share of the 10 bills.

Gavriella claimed that Dani was in contempt of court for violating the provisions of

the decree that required him to pay her his share of the uninsured medical bills. She

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alleged that each failure by Dani to reimburse her for the 10 medical bills constituted

a separate violation of the decree. Gavriella's motion contained the following

information regarding the alleged violations:

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For each of the 10 violations, Gavriella asked that Dani "be held in contempt,

jailed for up to 180 days, and fined up to $500.00, and that each period of

confinement . . . run and be satisfied concurrently.” She also asked that Dani "be

placed on community supervision for ten (10) years on release from jail or

2 Gavriella was the "petitioner” in the divorce proceeding, and she was the "movant”

in the enforcement proceeding. Evidence at the enforcement hearing showed that

Carol Kiriakos, M.D. was a pediatrician with Visions.

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suspension of commitment.” Gavriella claimed that Dani's "total arrearage at the

time of [the] filing of this Amended Motion for Enforcement of Child Support Order

is $44,689.95 ($85,035.01 paid by [Gavriella] x 2/3, then reduced by a $12,000.00

credit for payments made by [Dani] since June 2019).” Gavriella asked the trial court

to confirm the arrearages and render a money judgment in her favor for $44,689.95,

plus interest. She also requested her attorney's fees and costs.

On September 29, 2020, the trial court conducted a hearing on Gavriella's

amended motion for enforcement. Before presenting her evidence, Gavriella

explained to the trial court that she understood Dani's position to be that he was not

required to pay his 2/3 share of Jane's psychiatric bills because The Menninger

Clinic and Visions Treatment Center were not "preferred providers” with his

insurance plan, meaning they were out-of-network providers. Gavriella

acknowledged that the Agreed Divorce Decree provided that "if a party incurs

health-care expenses for the children using out-of-network health-care provider

services, that party shall pay one hundred percent.” But Gavriella pointed out that

"emergency health-care expenses” are excepted from the requirement that the

incurring party pay 100 percent of the out-of-network charges. Gavriella claimed

that the charges for Jane's treatment at Menninger and Visions were emergency

health-care expenses because they were for the treatment of a psychiatric emergency

Jane that experienced in late February and early March 2019.

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Gavriella also pointed out that she and Dani had agreed in the decree that

Jane's psychiatrist, Dr. Nodler, would act as a "tiebreaker” if they could not agree

on Jane's psychiatric treatment. Gavriella further cited the decree's provision

requiring the parent incurring the health-care expense to furnish documentation—

such as a bill, invoice, or explanation of benefit—reflecting the non-insured portion

of the expense to the non-incurring parent within 30 days of receipt of the

documentation. Once the documentation was received by the non-incurring parent,

he or she had 30 days to pay his or her percentage of the non-insured portion. The

non-incurring parent had 120 days to pay his or her percentage if the incurring parent

did not forward the supporting documentation within 30 days of receiving it.

Dr. Nodler, Gavriella, and Dani testified at the enforcement hearing. Dr.

Nodler testified first.

In conjunction with Dr. Nodler's testimony, Gavriella offered into evidence a

"summary report” written by Dr. Nodler discussing Jane's psychiatric history. The

report noted that Dr. Nodler first saw Jane in August 2017. Jane's psychologist, Dr.

Crawford, had referred Jane to Dr. Nodler to determine whether Jane should be

placed on medication for her anxiety and depression. Dr. Nodler's report stated that

Jane had "established care” with Dr. Crawford in 2016 "due to debilitating

depression and suicidal ideation.”

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After several office visits, Dr. Nodler determined that Jane met the criteria for

major depressive disorder and generalized anxiety. She believed that Jane should

continue with her therapy but also be prescribed antidepressant medication. Dr.

Nodler placed Jane on medication and began therapy, but it "was not enough to help

[Jane] start her recovery and healing process.” In November 2017, Jane's ability to

cope with the stress in her life had decreased, and she was engaging in self-injury by

cutting herself with sharp objects.

At Dr. Nodler's recommendation, Jane was admitted for in-patient treatment

at Menninger in November 2017 for a one-month stay.

3 Dr. Nodler's report reflected

that Jane said that she had "a very positive experience at The Menninger Clinic.”

Jane was "discharged from Menninger Clinic in December of 2017 with a significant

decrease in her symptom load.” After the hospitalization, Jane had a remission of

her symptoms and continued to improve for most of 2018. However, Dr. Nodler

testified that, at the end of 2018, Jane began reengaging in "dangerous behaviors and

started feeling less secure and less confident in her recovery.”

During a family trip in December 2018, Jane overdosed on over-the-counter

medication. Following the overdose, Jane was hospitalized at Houston Behavioral

Hospital for five days. Dr. Nodler's testimony and her report indicated that, unlike

3 The Agreed Divorce Decree provides that Dani and Gavriella agreed to split 50/50

the cost of Jane's 2017 stay at Menninger.

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her stay at Menninger Clinic, Jane's stay at Houston Behavioral Hospital was not

"therapeutic” and that Jane "struggled to engage with the team and services there.”

Dr. Nodler's report explained, "Upon discharge from the acute inpatient care, [Jane]

continued to decompensate mentally and emotionally.”

Around late February to early March 2019, Dr. Nodler "strongly

recommended a re-admission to the adolescent unit at Menninger for safety,

stabilization, and longer term treatment.” In her report, Dr. Nodler stated that she

made the recommendation "[d]ue to [Jane's] acute distress layered upon her

chronically elevated risk of self-harm and family psychiatric history.” Dr. Nodler

wrote that it was "an emergency situation requiring an immediate response.” When

asked at the enforcement hearing why she recommended placement at Menninger

and why she considered it "an emergency situation,” Dr. Nodler testified "[i]t was a

combination of all of her acute, on-chronic risk factors for suicide, and that was

coupled with impulsivity.” Dr. Nodler also testified that Jane "on some level,

recognized that she needed treatment and she needed help and she was willing to go

to the Menninger Clinic.” Dr. Nodler testified that Menninger Clinic "won't take

any patient of any age who is not sort of, on some level, agreeing to go voluntarily.

They don't commit people to Menninger.” She stated that, because Jane was "willing

to go” to Menninger, "it seemed like the safest and best option that was necessary.”

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Dr. Nodler testified that she was aware that Gavriella and Dani could not agree

where Jane should receive psychiatric treatment. An email from Dr. Nodler, dated

March 4, 2019, was admitted into evidence. In the email, she stated that she thought

that "an admission to Menninger [was] the best option for [Jane's] acute care.”

Dr. Nodler also told Gavriella and Dani that she wanted them "to consider a

longer-term treatment program from Menninger such as a residential facility.” At

the enforcement hearing, Dr. Nodler explained that Menninger "will not keep

teenagers” long term for "months at a time.” And she had believed that "a longerterm treatment program was necessary” for Jane. Dr. Nodler stated that she had

recommended sending Jane to Menninger to "just to try to keep [Jane] safe” while

they could figure out what resources and options were available to place her in a

long-term facility. Dr. Nodler stated that she had thought if they could get Jane into

Menninger, then Jane "would be safe and I could trust that she could go there and

get the treatment she needed, then we could look at the longer-term options for her.”

On direct examination, Dr. Nodler agreed that it was "fair to summarize” the goal at

Menninger as being "stabilization” of Jane along with keeping her "physically safe”

until a longer-term placement could be found.

Before he began cross-examination, Dani explained to Dr. Nodler that "the

issue before the court” was "what constitutes an emergency under the terms of the

decree.” He stated, "[T]here is a provision [in the decree] that says that any medical

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treatments should be, to the extent they can be controlled, confined to in-network

medical facilities.” He said that part of the issue was determining whether, at the end

of February 2019, "the circumstances [were] so exigent that it required immediate

hospitalization of [Jane].”

During cross-examination, Dr. Nodler indicated that she was aware that Dani

had wanted Jane admitted to an in-network facility, such as Houston Behavioral

Hospital, but Gavriella had wanted Jane admitted to The Menninger Clinic.

Regarding admitting Jane to an in-network facility, Dr. Nodler testified that "there

was a lot of refusal and concern that, you know, we couldn't force [Jane] and then

we'd have to . . . traumatically get her there.” She also testified that "forcing a

teenager to do something . . . could rupture attachments and trust on a lot of different

levels when there are other options potentially available.”

Asked about the distinction between urgency and emergency with respect to

Jane's hospitalization, Dr. Nodler testified, "If she is acutely suicidal, self-injuring,

recent suicide attempt, conflict and disagreement among primary caregivers, you

know, ruptured relationships in her peer groups that, in my mind, is an emergency

and she's escalated, right, she's moved up and up and up in her efforts to end her

life.” When asked if that was how she would characterize Jane on February 28, 2019,

Dr. Nodler stated that she had not seen Jane that day, but Jane fit "in that category

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throughout that time period.” Dr. Nodler stated that she had seen Jane "many times”

and had been "wanting to hospitalize her or put her in longer-term treatment.”

Dani also questioned Dr. Nodler about the fact that, despite the availability of

a bed at Houston Behavioral Hospital and other in-network facilities, Gavriella had

waited five or six days—until March 5—to hospitalize Jane when a bed opened at

Menninger. In this regard, Dani asked Dr. Nodler: "[I]f it was that type of

emergency, wouldn't the safest course of action have been to have gotten her

immediate hospitalization as opposed to waiting almost five or six days?” Dr. Nodler

responded that, had Jane been comatose or unable to make decisions, hospitalizing

her immediately at the Houston Behavioral Hospital might have been best if there

had been no other option. She explained that, because Jane was aware enough to

engage in her treatment choices and was not acutely psychotic, or under the influence

of drugs, it was a situation in which Dr. Nodler tried to help with the decision to

determine where Jane would engage in treatment.

Dani then asked, "[R]egardless of what the patient might think about whatever

facility there is that's available, isn't that less important than getting the patient into

a facility as quickly as possible where they can be stabilized?” Dr. Nodler responded,

"Yes and no.” She explained that it was "very important” to get the patient "into a

facility,” but the difficulty with Jane was "physically” getting her to a facility other

than Menninger and then getting her to participate in therapy. Dr. Nodler testified

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that it was important for Jane to be admitted to a facility, but she believed that,

because Jane trusted "the people at Menninger” and was "willing to go back there,”

that was "the best place for her to deal with her emergent symptoms, keep her safe,

and . . . not rupture her trust.” Dr. Nodler also testified that it was a "tough call” and

that she had "lost sleep over it,” but "it was worth the risk of not forcing [Jane] into

a place where she could have come out . . . worse,” given that they had another

option—The Menninger Clinic—where Jane was willing to engage in therapy. Dr.

Nodler also testified that she had not wanted to lose Jane's trust and make her angry.

She stated that "anger in the face of suicide is a very, very powerful thing that doesn't

often end well.”

Dani asked whether two of the available in-network facilities—Houston

Behavioral and Behavioral Hospital of Bellaire—had the ability "to have stabilized

a patient such as [Jane] at that point in time?” Dr. Nodler testified, "They would

have had the ability to try to do that. I don't think it would have been enough, but

they—but they certainly could have tried.”

Gavriella testified next and stated that she had recently graduated from the

University of Houston Law Center and was waiting to take the bar exam. She said

that during 2018–2019 she had earned no more than $12,000.

Gavriella explained that Jane was stable for almost a year after her discharge

from Menninger in 2017. She testified that Jane began to deteriorate again in

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November 2018, suffering from depression, refusing to attend school, and cutting

herself. Jane overdosed around New Year's 2018 by swallowing an entire bottle of

ibuprofen while on a family trip.

Gavriella explained that children who cut themselves usually do it in private.

When Jane first began cutting herself, Gavriella did not know it because the cuts

were on areas of her body that were not obvious, such as her inner thighs. But then

the cutting became more pronounced. Gavriella described one episode where Jane

had made 40–50 cuts on each arm from her wrist to her elbow. Gavriella testified

that Jane had an agreement with Gavriella that she would tell Gavriella when she cut

herself. Gavriella would then notify Jane's psychologist and psychiatrist.

Gavriella testified that at the end of February 2019 the situation worsened.

Jane's cutting did not worsen but Jane's behavior became more impulsive. She

stopped eating and acted "almost manic.” Gavriella testified that even though she

and Dani had locked up sharp objects and medications, they agreed that Jane needed

in-patient treatment because she was no longer safe at home.

Dani was scheduled to have Jane and her younger brother at his house for the

weekend of March 1–3, 2019. That weekend, Gavriella was scheduled to take their

younger daughter to a cheer competition in Dallas. Gavriella testified that, on

Thursday, February 28, 2019, Jane was "clearly not stable.” She said that Dani

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"really wanted [Jane] in an immediate hospital” but Jane refused to go anywhere

other than Menninger, which did not have an open bed on that date.

Houston Behavioral Hospital, which was in-network, had an open bed, but

Jane refused to go there. Gavriella said that, after her overdose, Jane had been

admitted to Houston Behavioral for five days. Gavriella testified that the experience

there had been "terrifying” to Jane. Gavriella mentioned that, at that time, they had

to physically restrain Jane to get her to Houston Behavioral. Gavriella testified that

Dani "made it clear” that Jane could not stay with him while they waited for a bed

to open at Menninger, so Gavriella decided to take Jane with her to Dallas.

On Saturday, March 2, a friend of Jane, who lived in Dallas, asked to see her.

Gavriella decided to allow Jane to go the girl's house for a couple of hours while the

girl's parents were home. Gavriella stayed with her other daughter at the cheer

competition. While at the friend's home, Jane shaved her head. Gavriella stated that

Jane was immediately returned to Gavriella for the remainder of the weekend. After

they returned to Houston, a bed opened at Menninger, and Jane was voluntarily

admitted there. Jane remained at Menninger for three weeks.

Gavriella and Dani agreed it was not safe for Jane to come home after her

discharge from Menninger and that she needed to be admitted to a longer-term

residential treatment care facility. Gavriella testified that "the Menninger staff was

unequivocal that [Jane] needed to go to a residential treatment center.” Gavriella

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began working with Robin Bullington, an educational placement consultant.

Gavriella stated that Bullington "collaborates with Menninger and she helps families

with placements in longer-term treatment facilities.” Gavriella met with Bullington

on March 13, 2019, and received information about facilities to consider. Dani was

out of town for work on that date. Gavriella took notes during the meeting

summarizing the information Bullington provided about possible facilities. Gavriella

shared the document with Dani, and Gavriella's notes were admitted into evidence

at the enforcement hearing.

Gavriella testified that although Bullington provided some information about

the facilities, Bullington was "clear” that Gavriella and Dani needed to research the

facilities themselves to find one appropriate for Jane. Gavriella testified that there

were no options for Jane's placement in Texas. Many of the facilities were in Utah

with "a smattering” in other states. The facilities recommended by Bullington

included in-network programs. Gavriella testified that she contacted the in-network

programs, but they were all full. Emails from two of the in-network programs

showing that they did not have availability for two and three months, respectively,

were admitted into evidence. Gavriella also testified that she tried to involve Dani in

the selection process but, during that period, he was traveling internationally for

work, and she had a difficulty getting in touch with him. She said there were

multiple-day delays in his response to her messages.

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After her discharge from Menninger, Jane was admitted to Visions Treatment

Center, an out-of-network program in in Los Angles, California. Gavriella indicated

that every long-term program required families to visit on the weekend in order to

attend therapy. Gavriella testified that she and Dani have family in Los Angeles,

which made the required weekend visits more convenient there. Gavriella described

Visions as "an intensive residential treatment, which meant it was 45 days,

minimum, but up to 90 days.”

Jane was released from Visions after 88 days and returned home. She

completed her senior year of high school, did well on the SAT exam, and was

admitted to every college to which she applied. At the time of the hearing, Gavriella

testified that Jane was a freshman at an out-of-state college and was doing well.

Gavriella offered additional documentary evidence to support the arrearages

that she claimed Dani owed under the decree for the unreimbursed costs of Jane's

treatment at Menninger and Visions, including an itemized invoice from Menninger

and a summary of billing from Visions. She also offered into evidence a document

showing her payments to Menninger and to Visions, including payment to Dr.

Kiriakos, a pediatrician who treated Jane at Visions. Gavriella's evidence included

a written appeal to Dani's insurance company drafted by Gavriella and signed by

Dani. The appeal was successful, and they obtained an increase in the amount of

reimbursement they received from the insurance company for Jane's treatment at

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Visions. Gavriella's evidence also included the demand letter she sent to Dani, dated

January 7, 2020. In the letter, she requested the arrearages she claimed Dani owed

to her for unreimbursed medical expenses for Jane's psychiatric treatment. Attached

to the letter were billing statements and other documents supporting Gavriella's

reimbursement demand.

At the hearing, Gavriella explained that, because he was the primary insured

on the policy, Dani received all explanations of benefits concerning Jane's treatment.

She also testified that, between June and December 2019, Dani paid $12,000 of what

he owed, but he had paid nothing further. Another of Gavriella's exhibits was a

spreadsheet listing the arrearages Gavriella claimed Dani owed to her and crediting

the $12,000 that he had paid. The spreadsheet showed that the outstanding total that

Dani owed to her was $44,689.95.

Dani testified next. During his testimony, Gavriella pointed to an email sent

by Dani to Drs. Nodler and Crawford on March 3, 2019. In the email, Dani stated

that on February 28, 2019, he had wanted to have Jane admitted "into an acute

inpatient” program while they figured out a long-term solution for Jane. When asked

whether the email indicated that he believed at that time that Jane was experiencing

an emergency, Dani responded that it did not mean he had believed Jane was

experiencing an emergency. He stated that Jane's situation at that time had been

"urgent” but not an "emergency.”

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As an example of an emergency, Dani cited Jane's attempted suicide when

she had swallowed a bottle of ibuprofen. When that occurred, he had taken Jane to

the emergency room where her stomach was pumped. He testified that he considered

that incident to constitute an emergency because it was a life-threatening, dire

situation. In contrast, Dani defined "urgent” to mean that, if they did not change

Jane's course of treatment, then she would "get worse and potentially get into a more

dangerous position.” This meant that they had needed to "find a solution as

expeditiously as possible and get her treatment.”

Dani also testified that Houston Behavioral Hospital, which was an innetwork facility on his insurance plan, had a bed available on February 28, 2019. He

told Jane that he would take her there that night, but Jane resisted, and Gavriella

supported Jane's refusal. Gavriella and Jane had wanted to wait until Menninger had

an opening. Dani further testified that he had determined that two other in-network

treatment facilities had openings on Monday, March 4. He contacted Gavriella on

March 3 and told her that he could take Jane to one of those facilities on March 4.

He testified that Gavriella had refused, stating that Jane needed to go to Menninger.

Dani testified that a bed opened at Menninger on March 5, and Gavriella had Jane

admitted there that day. Dani acknowledged that the parties agreed in the decree that

Dr. Nodler would act as the tie-breaker when he and Gavriella disagreed about Jane's

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psychiatric treatment, but Dani said a tie-breaking decision was only relevant to the

type of treatment Jane would receive.

Dani agreed that, once Jane was discharged from Menninger in March 2019,

she needed continued care, and he acknowledged that Jane had needed to be admitted

to a longer-term residential treatment facility immediately after her discharge from

Menninger with no gap in between discharge from Menninger and admission to the

longer-term facility. But Dani also claimed that there were several longer-term innetwork facilities where Jane could have received treatment.

Dani acknowledged that he had the funds to pay the arrearages that Gavriella

claimed he owed. But he maintained that, because Gavriella made a unilateral

decision to use out-of-network facilities, she accepted responsibility for the costs.

Gavriella's attorney stated on the record that the parties had "agreed to

stipulate to each other's attorney's fees.” He stated that Gavriella had incurred

$12,500 in attorney's fees to prosecute the enforcement action. To support that

amount, Gavriella also offered her attorney's billing records.

At the end of the hearing, the trial court asked the parties to brief the issue of

what constituted a psychiatric emergency, and the parties complied.

On November 22, 2020, the trial court signed an enforcement order granting

most of the relief requested by Gavriella. In the order, the trial court found that Dani

had failed to pay, as ordered, eight of the ten separate amounts of medical child

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support that Gavriella claimed that he owed to her. The court found the medical child

support had been due on various dates between March 5 and June 19, 2019 and that

Dani "was able to pay child support in the amounts and on the dates ordered as set

out above.” The court determined that Dani was "guilty of a separate act of contempt

for each such separate failure to pay child support in the amounts ordered” and that,

on the date of the enforcement hearing, Dani "had the ability to comply with the

Order of the Court by paying the child support arrearages set forth in violations 1

through 8, enumerated above.” The court further found and confirmed that Dani was

"in arrears in the amount of $44,633.34 for the medical/psychiatric/psychological

costs outlined above, and that Judgment should be awarded against [Dani] in the

amount of $44,633.34 for the arrearages and interest.” Finally, the court found that

$12,500 in attorney's fees should be assessed against Dani.

After making these findings, the trial court "adjudged” Dani to be "in

contempt for each separate violation” of failing to be medical child support

"enumerated above.” The court ordered Dani "confined in the County jail of Harris

County, Texas, for a period not to exceed one hundred eighty (180) days” for each

of the eight violations of failing to pay medical child support or until Dani paid

Gavriella $44,633.34 and paid the $12,500 attorney's fees, "whichever occurs first.”

The trial court suspended Dani's jail confinement on the condition that he pay

Gavriella the total amount of arrearage, $44,633.34, by January 4, 2021, and that he

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pay Gavriella's attorney his fees in four equal monthly installments beginning on

January 1, 2021.

The enforcement order also included a cumulative money judgment granted

to Gavriella for medical child support arrearages against Dani totaling $44,633.34,

plus interest. At Dani's request, the trial court issued findings of fact and conclusions

of law.

Dani filed a petition for writ of mandamus in this Court, challenging the order

holding him in contempt. He also filed a motion for emergency relief, requesting the

contempt order be stayed. On December 21, 2020, we granted Dani's motion for

emergency relief, staying enforcement of the contempt order pending disposition of

the mandamus proceeding. In addition, Dani filed a notice of appeal challenging the

cumulative money judgment and attorney's fees award contained in the enforcement

order.

Challenge to Contempt Order by Petition for Writ of Mandamus

In his mandamus petition, Dani raises three issues challenging the contempt

provision (contempt order) contained in the trial court's enforcement order.

A. Availability of Mandamus Relief and Standard of Review

Contempt orders are not reviewable by appeal. See Cline v. Cline, 557 S.W.3d

810, 812 (Tex. App.—Houston [1st Dist.] 2018, no pet.). This is true even when, as

here, the contempt order is appealed along with a judgment that is appealable. See

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id. Instead, contempt orders are reviewed only by petition for writ of mandamus or

habeas corpus. See In re Janson, 614 S.W.3d 724, 727 (Tex. 2020). When the

contemnor is not jailed, the proper vehicle to challenge a contempt order is a petition

for writ of mandamus. Id. Here, the trial court suspended Dani's jail commitment

conditioned on his subsequent payment of arrearages and attorney's fees. Thus, the

trial court's contempt order is reviewable by petition for writ of mandamus. See In

re Thompson, No. 01-14-00235-CV, 2014 WL 6792031, at *1 (Tex. App.—Houston

[1st Dist.] Dec. 2, 2014, orig. proceeding) (mem. op.) (reviewing, in mandamus

proceeding, contempt order that ordered relator confined to jail for 90 days for each

child-support violation but suspending jail commitment on condition that relator pay

arrearages every month until paid); In re Honermann-Garinger, No. 02-10-00361-

CV, 2010 WL 4644464, at *4 (Tex. App.—Fort Worth Nov. 17, 2010, orig.

proceeding) (mem. op.) (construing application for writ of habeas corpus as

mandamus petition when contempt order suspended confinement on condition that

relator paid attorney's fees and otherwise complied with underlying order).

We grant the extraordinary relief of writ of mandamus only when the trial

court has clearly abused its discretion and the relator lacks an adequate appellate

remedy. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.

proceeding). Because there is no adequate remedy by appeal for Dani's challenge to

the contempt order, the question remaining here is whether the trial court abused its

25

discretion in rendering the order. A trial court abuses its discretion when its decision

is arbitrary, unreasonable, and without reference to guiding principles. In re A.L.M.-

F., 593 S.W.3d 271, 282 (Tex. 2019). Because a trial court has no discretion in

determining what the law is or in applying it to the facts, a trial court also abuses its

discretion if it fails to correctly analyze or apply the law. In re Dawson, 550 S.W.3d

625, 628 (Tex. 2018).

B. Analysis

In his second and third issues, Dani contends that the contempt order is void

because Gavriella's amended motion to enforce did not provide him reasonable

notice of how he had violated the Agreed Divorce Decree, and he asserts that the

decree was not enforceable by contempt because it is "vague and ambiguous.”

1. Adequacy of Motion to Enforce

Because the obligation to pay child support is a duty, not a debt, a person may

be held in contempt and imprisoned for failing to pay child support. In re C.F., 576

S.W.3d 761, 770 (Tex. App.—Fort Worth 2019, orig. proceeding); see TEX. FAM.

CODE §§ 157.001, 157.166–.167. Medical support is a child-support obligation, TEX.

FAM. CODE § 154.183, and it is also enforceable by contempt, C.F., 576 S.W.3d. at

770.

Contempt proceedings are quasi-criminal in nature, and the contemnor is

entitled to procedural due process throughout the proceedings. Ex parte Davis, 305

26

S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding).

Contempt that occurs outside of the court's presence, as alleged here, is constructive

contempt. In re Reece, 341 S.W.3d 360, 365 (Tex. 2011). Before a court can punish

an alleged contemnor for constructive contempt, due process requires that the

accused have full and complete notification of the contemptuous act. Ex parte

Carney, 903 S.W.2d 345, 346 (Tex. 1995); In re Butler, 45 S.W.3d 268, 272 (Tex.

App.—Houston [1st Dist.] 2001, orig. proceeding). More precisely, a constructive

contemnor "must have full and complete notification of the subject matter, and the

show cause order or other means of notification must state when, how, and by what

means the defendant has been guilty of the alleged contempt.” In re Parks, 264

S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). A contempt

order rendered without adequate notice is void. In re Vasos, No. 01-17-00841-CV,

2018 WL 1954164, at *3 (Tex. App.—Houston [1st Dist.] Apr. 26, 2018, orig.

proceeding) (mem. op.); see Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) ("A

contempt judgment rendered without . . . notification is a nullity.”). In an original

proceeding challenging a contempt order, the relator has the burden to show that the

order is void. Thompson, 2014 WL 6792031, at *1.

To assure full and complete notification, Family Code section 157.002 sets

out the pleading requirements for enforcement motions. See Butler, 45 S.W.3d at

272. Section 157.002 requires an enforcement motion for child support to include

27

the amount owed, the amount paid, and the amount of arrearages. TEX. FAM. CODE

§ 157.002(b)(1). If contempt is requested, the motion must also include "the portion

of the order allegedly violated and, for each date of alleged contempt, the amount

due and the amount paid, if any.” Id. § 157.002(b)(2). "Thus, a respondent may be

found in contempt only for violations that are specifically pled in the motion for

enforcement under section 157.002.” In re Office of Attorney Gen., 422 S.W.3d 623,

630 (Tex. 2013).

Dani contends that "[t]he Contempt Order is void because the motion to

enforce failed to comply with the due process notice requirements of Texas Family

Code section 157.002.” Among his arguments, Dani asserts that Gavriella's

amended motion to enforce did not inform him of the dates of his alleged

contemptuous acts as required to comply with the notice requirements of section

157.002(b) and with due process. See TEX. FAM. CODE § 157.002(b)(2).

In her enforcement motion, Gavriella alleged that Dani should be held in

contempt for 10 violations of failing to pay her medical child support as required in

the Agreed Divorce Decree. Specifically, she alleged that Dani had failed to

reimburse her—as required by the decree's provisions cited in her motion—for his

share of 10 separate health-care expenses that she incurred for Jane's psychiatric

treatment. As mentioned above, Gavriella provided the following information about

the 10 alleged violations in her amended enforcement motion:

28

Dani points out that Gavriella identified the dates that she paid the health-care

expenses, but she did not identify the dates by which Dani was required to reimburse

her for his share of the expenses pursuant to the decree's provisions. In other words,

Dani asserted that Gavriella did not provide the dates that he had allegedly

committed contempt by failing to reimburse Gavriella for the health-care expenses.

In her amended enforcement motion, Gavriella asserted that Dani had violated

several provisions of the decree, including the provision setting the deadline for

when the party not incurring the health-care expense must reimburse the incurring

party for the expense. That provision requires the parent who incurred the healthcare expense to furnish forms, receipts, bills, and explanations of benefits reflecting

the uninsured portion of the expense within 30 days after the incurring party received

29

the documentation. The non-incurring party must then pay his or her percentage of

the health-care expense required by the decree either by paying the health-care

provider directly or by reimbursing the incurring party for any advance payment

exceeding that party's percentage "within thirty days after the non-incurring party

receives the forms, receipts, bills, statements, and/or explanations of benefits.”

However, if the incurring party "fails to submit to the other party forms, receipts,

bills, statements, and explanations of benefits reflecting the uninsured portion of the

health-care expenses within thirty days after the incurring party receives them,” then

the nonincurring party must pay his or her percentage of the uninsured portion

"either by paying the health-care provider directly or by reimbursing the incurring

party for any advance payment exceeding the incurring party's percentage of the

uninsured portion of the health-care expenses within 120 days after the nonincurring party receives the forms, receipts, bills, statements, and/or explanations of

benefits.”

We agree with Dani that the dates that Gavriella paid the health-care expenses

do not provide Dani with notice of when he allegedly violated the Agreed Divorce

Decree. As Dani points out, the dates that Gavriella paid the expenses is not the date

by which reimbursement is required in the decree nor is it a factor in calculating

when he was required to reimburse her.

30

Gavriella contends that her amended enforcement motion adequately

provided Dani notice of the date he violated the decree. In the motion, Gavriella

stated, "All sums have been requested from [Dani] as required by the Court's prior

Order (at the latest, in a written request addressed to [Dani] and dated January 7,

2020), and all conditions precedent to the collection of these sums and the filing of

this Enforcement action have been performed. . . .” (Emphasis in original.) In

apparent reference to the provision of the decree applicable to calculating

reimbursement deadlines, Gavriella asserts that "[t]he fact that [her] Amended

Motion requires Dani to add 120 days to January 7 can hardly be said to have

rendered the Motion unreasonably vague, or to have deprived him of due process.”

But Gavriella did not inform Dani whether she had sent him her demand for

reimbursement, along with the required documentation supporting the request, more

than 30 does after she received it or less than 30 days. Gavriella does not explain

how Dani should have known whether Gavriella sent the January 7 request more

than 30 days after receiving "the forms, receipts, bills, and explanations of benefits”

reflecting the uninsured expense or sent it less than 30 days after receiving the

documents. Although Gavriella referenced the January 7 request in her amended

enforcement motion, the request and the documentation supporting it was not

attached to the motion. While it could be argued that Gavriella would not have paid

31

the health-care expenses without first receiving the billing statements, the motion

itself does not make that allegation.

In her response to the mandamus petition, Gavriella points out that Dani

acknowledged receiving her January 7 demand letter and that, as the primary

insured, Dani had received the explanation of benefits for the charges from his

insurance company. However, Gavriella does not explain how either was a

permissible substitute for notifying Dani in the enforcement motion of the dates he

was allegedly guilty of committing contempt by failing to pay her medical child

support as required by the terms of the decree—terms that she cited as a basis for

holding Dani in contempt.

We conclude that the amended motion for enforcement did not satisfy the

minimum requirements of due process because it failed to provide Dani with

adequate notice of the dates of his alleged contemptuous acts of failing to pay

Gavriella medical child support. See TEX. FAM. CODE § 157.002(b)(2) (requiring

enforcement motion to include amount due for each date of alleged contempt); In re

K.M.M., No. 14-15-00204-CV, 2016 WL 6108097, at *5 (Tex. App.—Houston

[14th Dist.] Oct. 18, 2016, orig. proceeding) (mem. op.) ("Notice of the contempt

allegations must state when, how, and by what means the person has been guilty of

contempt.”). Thus, the contempt order is void, and we hold that the trial court abused

its discretion in rendering it.

32

Because he did not receive adequate notice of the contempt allegations, we

sustain Dani's second issue.

2. Ambiguity of Agreed Divorce Decree

In his third issue, Dani claims that the decree's provision setting the deadline

by which a party must pay his or her percentage of a health-care expense is vague

and ambiguous. The provision states in full as follows:

The party who incurs a health-care expense on behalf of a child is

ORDERED to furnish the other party forms, receipts, bills, statements,

and explanations of benefits reflecting the uninsured portion of the

health-care expenses within thirty days after the incurring party

receives them. The non-incurring party is ORDERED to pay the nonincurring party's percentage of the uninsured portion of the health-care

expenses either by paying the health-care provider directly or by

reimbursing the incurring party for any advance payment exceeding the

incurring party's percentage of the uninsured portion of the health-care

expenses within thirty days after the non-incurring party receives the

forms, receipts, bills, statements, and/or explanations of benefits.

However, if the incurring party fails to submit to the party forms,

receipts, bills, statements, and explanations of benefits reflecting the

uninsured portion of the health-care expense within thirty days after the

incurring party receives them, IT IS ORDERED that the non-incurring

party shall pay the non-incurring party's percentage of the uninsured

portion of the health-care expenses either by paying the health-care

provider directly or reimbursing the incurring party for any advance

payment exceeding the incurring party's percentage of the uninsured

portion of the health-care expenses within 120 days after the nonincurring party receives the forms, receipts, bills, statements, and/or

explanations of benefits .

Because criminal contempt is a harsh sanction, courts strictly require clarity

in the underlying court orders. Janson, 614 S.W.3d at 727. A trial court necessarily

abuses its discretion if it holds a person in contempt for violating an ambiguous

33

order. Id. To avoid such ambiguity, the order allegedly violated must "set forth the

terms of compliance in clear, specific and unambiguous terms so that the person

charged with obeying the decree will readily know exactly what duties and

obligations are imposed upon him.” Ex parte Chambers, 898 S.W.2d 257, 260 (Tex.

1995). The order's interpretation may not rest upon implication or conjecture.

Janson, 614 S.W.3d at 727.

Pursuant to the above provision, the date that a non-incurring party's payment

is due is contingent upon whether the incurring party furnishes the required

documentation 30 days after he or she receives it. Dani contends that the provision

is too vague and ambiguous to be enforced by contempt because it requires the party

who did not incur the health-care expense to engage in conjecture about when his or

her payment is due. We agree.

The question of whether an order is enforceable by contempt depends on

whether the order is definite and certain, and the focus is on the wording of the

judgment itself. Ex parte Reese, 701 S.W.2d 840, 841 (Tex. 1986). "Texas law has

long held that a judgment must be sufficiently definite and certain to define and

protect the rights of all litigants, or it must provide a definite means of ascertaining

such rights so the judgment can be executed without reference to facts not stated

within the judgment.” In re Medina, No. 04-20-00390-CV, 2021 WL 603360, at *2

(Tex. App.—San Antonio Feb. 17, 2021) (mem. op.) (quoting In re D.A.I., No. 04-

34

06-00434-CV, 2007 WL 1988153, at *2 (Tex. App.—San Antonio July 11, 2007,

no pet.) (mem. op.)). The complained-of provision here fails to meet this standard.

As Dani points out, the decree "does not provide any clarification as to how the nonincurring party is supposed to know when the incurring party received the forms and

whether the incurring party actually furnished the forms within thirty days” of

receiving them. The decree does not instruct the incurring party to inform the nonincurring party of when he or she received the required documentation, nor does it

provide a mechanism for the non-incurring party to make that determination.

While assumptions about the date the incurring party received the documents

could be made, "[a] trial court's judgment of contempt 'should not rest upon

implication or conjecture.'” In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (quoting

Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding)). Instead, to

support a contempt judgment, the decree must "spell out the details of compliance

in clear, specific and unambiguous terms so that such person will readily know

exactly what duties or obligations are imposed upon him.” Ex parte Slavin, 412

S.W.2d at 44. Here, the Agreed Divorce Decree fails to spell out the details of

compliance because it does not provide a mechanism for ascertaining whether the

incurring party furnished the required documents to the non-incurring party within

30 days of receipt. Thus, the provision's uncertainty and indefiniteness

impermissibly compels the non-incurring party to engage in conjecture and

35

speculation about his or her payment deadline. See id.; see also In re Medina, 2021

WL 603360, at *2 (concluding that, because decree's language requiring father to

pay medical support to mother if she relocated children's primary residence to

Mexico was ambiguous and "impermissibly contingent and uncertain,” it could not

be enforced by contempt).

We conclude that the indefiniteness and uncertainty of the provision

establishing the non-incurring party's deadline to reimburse the incurring party for

health-care expenses renders the decree vague and ambiguous. The decree is not

sufficiently clear to support the trial court's contempt finding. See Janson, 614

S.W.3d at 728; Ex parte Slavin, 412 S.W.2d at 44; Chambers, 898 S.W.2d at 260.

We hold that, because the decree is vague and ambiguous, the trial court abused its

discretion when it rendered the contempt order against Dani. See Janson, 614

S.W.3d at 728.

For the reasons discussed, we sustain Dani's third issue.4

3. Conclusion Regarding Mandamus Relief

To summarize, we hold that the trial court abused its discretion when it held

Dani in contempt because Gavriella's enforcement motion did not provide him with

4 Because our resolution of Dani's second and third issues is sufficient to grant his

requested mandamus relief, we need not discuss his first issue, nor do we need to

discuss additional arguments for his requested relief that he raises in his second and

third issues. See TEX. R. APP. P. 47.1.

36

sufficient notice of the dates of the alleged violations of the decree and because the

decree is not sufficiently clear to support enforcement by contempt. Dani also does

not have an appellate remedy for his challenge to the contempt order. Therefore,

Dani is entitled to his requested mandamus relief. See id. We conditionally grant

mandamus relief directing the trial court to vacate its order holding Dani in

contempt. Our writ will issue only if the court fails to comply.

Appeal of Enforcement Order

In two issues, Dani appeals the enforcement order.

5

In the order, the trial court

confirmed that Dani was "in arrears in the amount of $44,633.34 for . . .

medical/psychiatric/psychological costs.” The court granted Gavriella a cumulative

judgment for medical child support arrearages against Dani for that amount, plus

interest. The court also awarded Gavriella her attorney's fees of $12,500 to be paid

to her attorney.

5 Before Dani filed his appellate brief, Gavriella filed a motion to dismiss Dani's

appeal. She pointed out that contempt orders are not reviewable by appeal. See

Cline v. Cline, 557 S.W.3d 810, 812 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

She asserted that, because Dani was improperly attempting to challenge the

contempt order in his appeal, his appeal should be dismissed. See id. Dani properly

challenged the contempt order only in his mandamus petition. On appeal, Dani

raises no issues relating to the contempt order. Dani challenges only the cumulative

money judgment portion of the enforcement order and the attorney's fees award,

which we have jurisdiction to consider. See id.; In re E.H.G., No. 04-08-00579-CV,

2009 WL 1406246, at *5 (Tex. App.—San Antonio May 20, 2009, no pet.) (mem.

op.) ("If a motion to enforce includes a request for both a contempt finding and a

money judgment for child support arrearage, an appellate court has jurisdiction to

address the arrearage judgment because it is unrelated to the contempt order.”).

Thus, we deny Gavriella's motion to dismiss the appeal.

37

A. Cumulative Money Judgment

In his first issue, Dani challenges the trial court's confirmation of the

arrearages amount and the rendition of the cumulative judgment for $44,633.34.

1. Standard of Review

We review a trial court's decisions regarding child support, including

confirmation of child-support arrearages, for abuse of discretion. See Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Cline, 557 S.W.3d at 813. "The test for

abuse of discretion is whether the trial court acted without reference to any guiding

rules or principles; in other words, whether the act was arbitrary or unreasonable.”

Worford, 801 S.W.2d at 109. A trial court also abuses its discretion by failing to

analyze or apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

Under the abuse-of-discretion standard, legal and factual sufficiency of the

evidence are not independent grounds of error, but are merely factors to be

considered in determining whether the trial court abused its discretion. Cline, 557

S.W.3d at 813. We engage in a two-pronged inquiry: (1) whether the trial court had

sufficient information upon which to exercise its discretion and (2) whether the trial

court erred in its application of that discretion. Id. The focus of the first step is the

sufficiency of the evidence. Id. Under the second step, we must decide whether,

based on the evidence before it, the trial court made a reasonable decision. Id.

38

2. Analysis

Dani asserts that the trial court abused its discretion in awarding Gavriella a

cumulative money judgment for $44,633.34. That sum represents the total amount

of arrearagesthe trial court found Dani owed Gavriella for his 2/3 share of the healthcare expenses that Gavriella incurred for Jane's treatment at Menninger and at

Visions that were not reimbursed by health insurance.

Dani does not dispute that the Agreed Divorce Decree requires him to twothirds of "the unreimbursed health-care expenses” for the children's "reasonable and

necessary health-care expenses,” which included psychiatric costs. Instead, Dani

contends that he was not required to pay Gavriella for the unreimbursed costs for

Menninger and Visions (including the charges of Dr. Kiriakos, a pediatrician with

Visions) because those providers were not in-network "preferred providers” under

his health-insurance policy, that is, they were out-of-network providers.

Dani points out that the Agreed Divorce Decree orders the parties to use innetwork providers, unless an exception to using an in-network provider applies. If

no exception applies, then the party incurring the out-of-network health-care

expense must pay the total amount of the expense. Dani claims no exception applies

here. For this reason, Dani asserts that Gavriella is responsible for 100 percent of the

unreimbursed charges she incurred for Jane's treatment at out-of-network providers

39

Menninger and Visions, and the trial court abused its discretion in determining that

he had to reimburse Gavriella for his 2/3 share of those charges.

To determine whether the trial court abused its discretion here, we must

interpret the Agreed Divorce Decree. "An agreed divorce decree is a contract subject

to the usual rules of contract interpretation.”6 Chapman v. Abbot, 251 S.W.3d 612,

616 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Our primary concern when

interpreting an agreed divorce decree is to ascertain and give effect to the intent of

the parties as it is expressed in the agreement. Coker v. Coker, 650 S.W.2d 391, 393

(Tex. 1983); Perry v. Perry, 512 S.W.3d 523, 527 (Tex. App.—Houston [1st Dist.]

2016, no pet.). To achieve this objective, courts should examine the entire writing in

an effort to harmonize and give effect to all the provisions of the contract so that

none will be rendered meaningless. Chapman, 251 S.W.3d at 616.

a. Visions Health-Care Expenses

We begin by determining whether the trial court abused its discretion in

determining that Dani was required to pay Gavriella for the health-care expenses she

incurred at Visions, the out-of-network long-term residential facility in Los Angeles

where Jane stayed for 88 days after her three-week stay at Menninger. The arrearages

6 The Agreed Divorce Decree provides, "The Court finds that the parties have entered

into a written agreement as contained in this decree by virtue of having approved

this decree as to both form and substance. To the extent permitted by law, the parties

stipulate the agreement is enforceable as a contract.” (Emphasis added.)

40

the trial court assessed against Dani for the costs Gavriella incurred at Visions

(including Dr. Kiriakos's charges) were $34,547.79 out of the total arrearages of

$44,633.66 assessed against Dani.

The provision in the Agreed Divorce Decree governing the use of in-network

versus out-of-network providers, states:

Each party is ORDERED to use "preferred providers,” or services

within the health maintenance organization or preferred provider

network, if applicable. Disallowance of the bill by a health insurance

company shall not excuse the obligation of either party to make

payment. Excepting emergency health-care expenses incurred on

behalf of the children, if a party incurs health-care expenses for the

children using "out-of-network” health-care providers or services, or

fails to follow the health insurance company procedures or

requirements, that party shall pay all (100%) of such health-care

expenses incurred absent: (1) written agreement of the parties

allocating such health-care expenses; or (2) further order of the Court.

Relevant here, the provision reflects that the party incurring an out-of-network

health-care expense will not be 100 percent responsible for it if the expense is an

emergency health-care expense. In its conclusions of law, the trial court ruled that,

because Jane's circumstances constituted an emergency as contemplated by the

decree, Gavriella was not required to choose an in-network provider. Dani asserts

that the conclusion is erroneous with respect to the expenses incurred at Visions

because the evidence showed that, by the time Jane was admitted there, her condition

had stabilized. Gavriella disagrees, asserting that the evidence showed that Jane was

still experiencing a psychiatric emergency when she was admitted to Visions.

41

We need not, however, determine whether the emergency health-care expense

exception to using an in-network provider applies to the expenses Gavriella incurred

at Visions. Under the above provision, the parties are required to use an in-network

provider only "if applicable.” In other words, if there is not an "applicable” innetwork provider to use, the provision does not apply.

The Austin Court of Appeals recently held in McCain v. McCain that this

same "if applicable” language in a decree supported the trial court's arrearage award

for an of out-of-network charge. No. 03-19-00751-CV, — S.W.3d —, 2021 WL

4995499, at *6 (Tex. App.—Austin Oct. 28, 2021, no pet.). There, the trial court

made an arrearage award against the appellant, Sean, in favor of his ex-wife,

Elizabeth, for charges she incurred for the out-of-network therapy of their son, M.M.

Id. The decree there, like the decree here, required each party "to use 'preferred

providers,' or services within the health maintenance organization, if applicable.”

Id. (emphasis added). Sean cited the provision to support his argument that the trial

court abused its discretion in awarding Elizabeth the out-of-network charges for their

son's therapy. Id.

Overruling Sean's argument, the court wrote:

The first provision that Sean cites requires the use of a preferred

provider, but only "if applicable.” While Elizabeth admitted that

M.M.'s therapist was not a preferred provider, she also testified that she

"tried” to find preferred providers to provide the challenged therapy to

M.M. but that, of the few therapists who will see children of "highconflict divorces,” "those that will” see such children do not accept

42

insurance because they "know that they don't need to go through

insurance so they don't.” We conclude that this constituted legally and

factually sufficient evidence to support the trial court's implied finding

that use of a preferred provider was not "applicable” under such

circumstances.

Id. (internal footnotes omitted).

Here, in its findings of fact, the trial court found that Gavriella "made a

substantial, good-faith effort to find an appropriate, acceptable in-network long-term

care facility to which [Jane] could be transferred following her discharge from The

Menninger Clinic.” The evidence in the record supports the trial court's finding.

In her January 7 demand letter to Dani, Gavriella cited the decree's "if

applicable” language, pointing out that "[a] preferred provider recommended by

consultant Bullington was not available for the type of care [Jane] required” after

her discharge from Menninger. At the enforcement hearing, Gavriella testified that

on March 13, 2019, she met with Bullington, a consultant who collaborates with

Menninger and helps with placement in long-term residential facilities. At the

meeting, Gavriella received information from Bullington about facilities to consider

for Jane's residential placement after she was discharged from Menninger. Gavriella

took notes during the meeting summarizing the information Bullington provided

about prospective facilities. Gavriella shared the document with Dani, who did not

attend the meeting. Gavriella's notes from the meeting were admitted into evidence.

43

At the hearing, Gavriella testified that, although Bullington provided

information about the facilities, she told Gavriella that she and Dani would be

responsible for researching the facilities to find an appropriate one for Jane. The

evidence, including Dani's testimony, showed that a residential facility needed to be

found before Jane's discharge from Menninger because Menninger's purpose was

to stabilize Jane, not to serve as a long-term residential facility. Dani, Gavriella, and

Dr. Nodler all agreed that Gavriella needed further treatment after she left

Menninger. Dani also testified that, when Jane was discharged from Menninger, she

needed to go immediately to a long-term placement without a gap in between the

two. Thus, the evidence indicated that there was a limited amount of time to research

and find a suitable long-term residential facility.

Gavriella testified that she tried to involve Dani in the selection process but,

during that time, he was traveling internationally for work, and she had difficulty

getting in touch with him. She said there were multiple-day delays in his response

to her messages.

Gavriella's testimony and her notes indicate that she researched prospective

facilities, including in-network facilities. Gavriella testified that there were no

options for Jane's placement in Texas. She explained that many of the residential

facilities were in Utah with "a smattering” in other states. Gavriella testified that she

tried to find an in-network program not only because Dani wanted it to be in-network

44

but because she was paying for 1/3 of the cost. She stated that the facilities

recommended by Bullington included in-network facilities. Gavriella testified that

she contacted the in-network facilities recommended by Bullington, but they were

full and had no availability in the required time-frame. Emails from two in-network

programs were admitted into evidence. In the emails, one of the facilities stated that

it did not have availability for two months, and the other indicated that it did not

have availability for three months.

Gavriella also stated that a consideration in selecting a program was to find

one where Jane could connect with peer groups "because that's part of the treatment

program.” For example, a program with other teens that were substance dependent

would not have been a good fit for Gavriella because her issues were depression,

anxiety, and suicidal ideation.

Gavriella testified that she selected Visions in Los Angeles for Jane's

placement. Gavriella explained that she and Dani have family in Los Angeles, which

made the required weekend visits more convenient there. Visions had been highly

recommended by Bullington and it fit Jane's needs. Gavriella described Visions as

"an intensive residential treatment [program], which meant it was 45 days,

minimum, but up to 90 days.” Visions also had a step-down program, so that if Jane

had not been ready to come home after 90 days, she could have moved to off-campus

housing there to attend school. Gavriella testified that some of the other programs

45

were not intensive residential treatment programs but were instead nine to twelve

month programs. She explained that those facilities did not have openings because

their schedules followed the school year, and it was March when Jane was

discharged from Menninger. She explained that the population of teens in those

facilities often changed throughout the year, so that Jane's peer group may no longer

be a fit there as the year progressed.

In his brief, Dani points to Gavriella's notes from her meeting with Bullington.

At the top of the notes was the notation "Inquiries with Space.” Under that phrase

was a table with information about different facilities. Dani writes that "[t]hree of

the facilities with space were in-network facilities located in or near Los Angeles.”

He points to another listed facility that was in Malibu, California. For the Malibu

facility, Gavriella's notes indicate that the insurance verification came back at "90%

of rate” with an estimated out-of-pocket cost at $10,000 if the facility billed the

insurance company $45,000, but the notes did not state that any of the facilities were

in-network or, as referred to in the decree, "preferred providers.” Nor was the Malibu

facility's suitability for Jane's treatment needs indicated in the document. Dani

claims that the notation "Inquiries with Space” meant that all the facilities listed had

availability for Jane. However, Dani did not question Gavriella about what the

phrase meant, and Gavriella testified that none of the in-network facilities

recommended by Bullington had space. From the evidence, the trial court could have

46

reasonably inferred that these facilities cited by Dani were not in-network "preferred

providers,” even if the facilities billed the insurance company for reimbursement.

We note that Dani also testified that he provided Gavriella with the names of

three in-network facilities in Los Angeles, but she refused to contact them. He also

testified that he had been available to consult about the choice of a residential

treatment facility even though he had been traveling for work. He indicated that

Gavriella had excluded him from the process of selecting a program and that she had

told him that she did not want to use an in-network facility. However, the trial court,

as the sole judge of the credibility of the witnesses and the weight to be given their

testimony, was entitled to accept Gavriella's testimony and disbelieve Dani's

testimony. See Woody v. Woody, 429 S.W.3d 792, 797 (Tex. App.—Houston [14th

Dist.] 2014, no pet.).

We conclude that there was legally and factually sufficient evidence to

support the trial court's finding of fact that Gavriella "made a substantial, good-faith

effort to find an appropriate, acceptable in-network long-term care facility to which

[Jane] could be transferred following her discharge from The Menninger Clinic.”

This finding, along with record evidence showing that a suitable in-network provider

was not available, supports a legal conclusion that the use of an in-network provider

was not "applicable” under the circumstances for Jane's long-term residential

treatment. See McCain, 2021 WL 4995499, at *6; see also Delgado v. Garza, No.

47

13-15-00344-CV, 2018 WL 6187077, at *11 (Tex. App.—Corpus Christi Nov. 27,

2018, pet. denied) (mem. op.) (recognizing that incorrect or omitted conclusions of

law will not require reversal if controlling findings of fact support correct legal

theory) (citing Highland Credit Opportunities CDO, L.P. v. UBS AG, 451 S.W.3d

508, 519 (Tex. App.—Dallas 2014, no pet.) (providing that "the conclusions of law

will be upheld on appeal if the judgment can be sustained on any legal theory

supported by the evidence; incorrect conclusions of law will not require reversal if

the controlling findings of fact will support a correct legal theory”)). Thus, we hold

that the trial court did not abuse its discretion when it (1) confirmed the arrearages,

totaling $34,547.79, owed by Dani to Gavriella for the health-care expenses incurred

at Visions and (2) included that amount in its cumulative money judgment.

b. Menninger Health-Care Expenses

The trial court also confirmed arrearages of $10,085.55 for the health-care

expenses Gavriella incurred for Jane's three-week stay at Menninger, an out-ofnetwork provider. In the trial court, Gavriella asserted that she was entitled to

reimbursement of the Menninger health-care expenses from Dani because the

emergency health-care expenses exception applied. Gavriella argued that the

expenses she incurred from Menninger were "emergency health-care expenses”

because Jane was experiencing a psychiatric emergency when she was admitted.

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Gavriella also claimed that she was entitled to reimbursement under the "tiebreaker” provision in the decree. That provision provides that, "in the event the

parties do not reach mutual agreement on decisions regarding psychiatric treatment

of [Jane] (other than in an emergency), then the parties shall follow the

recommendation of [Jane's] treating psychiatrist, Abigail Nodler, M.D.” Gavriella

asserts that when she and Dani disagreed about where Jane should initially be

admitted, Dr. Nodler provided the tie-breaking decision in her March 4, 2019 email.

In the email, Dr. Nodler stated that she thought that "an admission to Menninger

[was] the best option for [Jane's] acute care.” Gavriella asserted that because Dr.

Nodler chose Menninger as the place for Jane's treatment, Dani was required to pay

his share of the expenses from Menninger, irrespective of being out-of-network.

The trial court agreed with Gavriella's theories of recovery. In its conclusions

of law, the trial court ruled:

• In early March of 2019 [Jane] faced a psychiatric emergency that required

immediate action by her parents.

• Because [Jane's] circumstances did constitute an "emergency” as

contemplated by the parties' Final Decree of Divorce, and because the parties'

"tiebreaker” psychiatrist recommended the precise course of action that was

ultimately followed, [Gavriella] was free to choose the best available and most

appropriate psychiatric and mental-health care interventions for [Jane]

regardless of the providers' "network” status for insurance coverage purposes.

Related to these conclusions, the trial court made the following findings of fact:

• In late February and early March of 2019, [Jane] was in "acute distress” and

a downward psychiatric spiral characterized by her treating psychiatrist as

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"life-threatening,” including relapse of her major depressive disorder,

dangerous behaviors such as self-harm (cutting and overdose), and increased

suicidal ideation.

• In early March 2019, Respondent Dani Roisman expressly agreed that [Jane]

needed immediate in-patient (and subsequent long-term) care to ensure her

health and safety, as he was incapable of providing her with needed care in

his home.

• In early March 2019, [Gavriella] and [Dani] disagreed as to the proper

location for [Jane's] acute psychiatric placement, which triggered the

"tiebreaker” provision in the parties' Final Decree of Divorce.

• Dr. Abigail Nodler, [Jane's] treating psychiatrist, agreed with Petitioner

Gavriella E. Roisman that [Jane] should be admitted in early March 2019 to

The Menninger Clinic for emergency acute care and emergency long-term

care planning.

i. Emergency health-care expense exception

Among his appellate arguments, Dani asserts that the trial court abused its

discretion in awarding Gavriella the Menninger health-care expenses because the

expenses were not "emergency health-care expenses” as contemplated by the parties

in the Agreed Divorce Decree. The decree does not define the phrase "health-care

expenses” by itself but does define the phrase "reasonable and necessary health-care

expenses not paid by insurance and incurred on behalf of the child” to include

charges for "mental health-care services.” The Agreed Divorce Decree also does not

define the term "emergency,” which modifies "health-care expenses.”

The Supreme Court of Texas has made clear that "[t]he goal of contract

interpretation is to ascertain the parties' true intent as expressed by the plain

50

language they used.” Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 893 (Tex. 2017).

"Language used by parties in a contract should be accorded its plain, grammatical

meaning unless it definitely appears that the intention of the parties would thereby

be defeated.” Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985). "'Plain

meaning' is a watchword for contract interpretation because word choice evinces

intent.” Primo, 512 S.W.3d at 893 (quoting Gilbert Tex. Const., L.P. v. Underwriters

at Lloyd's London, 327 S.W.3d 118, 126 (Tex. 2010)). A term's meaning "when

used in a contract, depends largely on the kind and character of the contract, its

purposes and circumstances, and context.” Id. at 894 (citation omitted).

We may look to dictionaries to discern the meaning of a commonly used term

not defined in a contract. In re Davenport, 522 S.W.3d 452, 457 (Tex. 2017).

Cambridge Dictionary defines "emergency” as "a dangerous or serious situation,

such as an accident, that happens suddenly or unexpectedly and needs immediate

action.” Emergency, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/

dictionary/english/emergency (last visited February 6, 2022). Similarly, MerriamWebster Dictionary defines "emergency” as "an unforeseen combination of

circumstances or the resulting state that calls for immediate action. Emergency,

Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/

emergency (last visited February 6, 2022). Here, the decree uses the term

"emergency” to modify "health-care expenses.” The dictionary defines

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"emergency,” when used as an adjective, to mean "done very quickly because there

is an emergency” or "intended to help deal with an emergency.” Emergency,

CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/

emergency (last visited February 6, 2022).

Applying these commonly understood definitions, an emergency health-care

expense would be an expense incurred quickly to address a dangerous or serious

unexpected health condition requiring immediate action. The appropriateness of this

definition becomes apparent when its context and purpose are considered.

As discussed, the phrase appears in the following provision in the decree:

Each party is ORDERED to use "preferred providers,” or services

within the health maintenance organization or preferred provider

network, if applicable. . . Excepting emergency health-care expenses

incurred on behalf of the children, if a party incurs health-care expenses

for the children using "out-of-network” health-care providers or

services . . . that party shall pay all (100%) of such health-care expenses

incurred . . . .

The provision shows that the parties contracted to use only in-network

providers for their children's health care. They agreed that, if one of them uses an

out-of-network provider, then he or she is responsible to pay all the expenses

incurred for that provider. However, the parties agreed to exclude from this

requirement health-care expenses incurred because one of their children experience

a health-care emergency. Given the context, the obvious purpose of the exception is

to facilitate a parent's quick action to obtain health care for a child experiencing a

52

dangerous or serious unexpected health condition or situation requiring immediate

action—i.e., an emergency—without the parent being encumbered by the need to

locate an in-network provider. Unburdening a parent from locating an in-network

provider to obtain treatment for a child's emergency not only serves to facilitate

immediate action to treat an emergency health-care issue but also encourages it.

In its conclusions of law, the trial court ruled that, "[i]n early March 2019

[Jane] faced a psychiatric emergency that required immediate action by her parents,”

but the trial court did not acknowledge Gavriella's failure to take immediate action

to address Jane's psychiatric emergency. The trial court further concluded that,

because Jane's circumstances constituted an emergency "as contemplated” by the

decree, Gavriella "was free to choose the best available and most appropriate

psychiatric and mental-health care interventions for [Jane] regardless of the

providers' 'network' status for insurance coverage purposes,” but the trial court did

not address Gavriella's five to six day delay in obtaining care for Jane by choosing

Menninger. During that time, Jane rejected three in-network hospitals proposed by

Dani that had available space for Jane. While waiting for a bed to open at Menninger,

Gavriella also took Jane to Dallas and allowed her to stay with a friend where she

shaved her head.

Dani asserts that the trial court incorrectly concluded that Jane's

circumstances constituted an "emergency.” He contends that, in late February to

53

early March 2019, Jane needed "urgent” psychiatric care but not "emergency”

psychiatric care. However, as found by the trial court, Dr. Nodler provided expert

testimony indicating that Jane was experiencing a "psychiatric emergency.” And the

evidence showed that, at the time, Dani believed that Jane needed immediate inpatient care because she was not safe at home. Assuming that Jane was experiencing

an emergency, we agree with the trial court's conclusion that Gavriella was not

required to choose an in-network provider to address the emergency, but we

nonetheless disagree that the expenses Gavriella incurred at Menninger were

"emergency health-care expenses.”

While the decree does not require a parent to use an in-network provider to

address a child's emergency, an expense will not meet the definition of an

"emergency health-care expense” unless the parent acts quickly to obtain treatment

for the child thereby incurring the expense. To allow a parent to delay treatment of

a child's health-care emergency, foregoing available treatment, in order to obtain the

best, preferred treatment would undermine the purpose of the emergency exception

to facilitate and encourage immediate action to address a child's health-care

emergency. And, if parties are allowed to recover their out-of-network expenses

incurred under such circumstances, there would be little incentive for a party to sign

a decree containing an exception for emergency health-care expenses.

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Here, because Gavriella did not act quickly and take immediate action to

address Jane's psychiatric emergency, we conclude that the expenses she incurred

for Jane's treatment at Menninger were not "emergency health-care expenses.” We

hold that the trial court abused its discretion to the extent that it awarded Gavriella

arrearages for the Menninger health-care expenses based on the emergency healthcare expense exception.

ii. Tie-breaker provision

Dani also contends that the tie-breaker provision in the Agreed Divorce

Decree cannot serve as a basis to support the trial court's arrearages award to

Gavriella for the Menninger health-care expenses. In its findings of fact, the trial

court found that, in early March 2019, Dani and Gavriella "disagreed as to the proper

location for [Jane's] acute psychiatric placement, which triggered the 'tiebreaker'

provision.” The trial court also found that Dr. Nodler agreed with Gavriella that Jane

"should be admitted in early March 2019 to The Menninger Clinic for emergency

acute care and emergency long-term care planning.” In its conclusions of law, the

trial court determined that, "because the parties' 'tiebreaker' psychiatrist

recommended the precise course of action that was ultimately followed, [Gavriella]

was free to choose the best available and most appropriate psychiatric and mentalhealth care interventions for [Jane] regardless of the providers' 'network' status for

insurance coverage purposes.”

55

Dani contends that the tie-breaker provision does not negate the provision

allocating 100 percent of out-of-network health-care expenses to the incurring

party.” We agree.

In the decree, Dani and Gavriella are appointed as the children's joint

managing conservators. Pursuant to the Family Code, a parent appointed as a

conservator of a child has, during the parent's period of possession, the right to

consent to the child receiving medical care not involving an invasive procedure,

unless limited by court order. See TEX. FAM. CODE § 153.074(3). Here, the decree

provides that Dani and Gavriella have the right to consent to the children's medical

care not involving an invasive procedure during their respective periods of

possession. The decree also provides that each parent has the right to consent to

psychiatric and psychological treatment of the children, but that right is "subject to

the agreement of the other parent conservator.”

When Dani and Gavriella cannot agree, the tie-breaker provision, also found

in the section of the decree pertaining to conservatorship issues, is triggered. The

provision states, "[I]n the event the parties do not reach mutual agreement on

decisions regarding psychiatric treatment of [Jane] (other than in an emergency),

then the parties shall follow the recommendation of [Jane's] treating psychiatrist,

Abigail Nodler, M.D.” The provision does not address how expenses will be split

for Jane's psychiatric treatment if the tie-breaker provision is triggered, nor does it

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indicate that the provisions in the decree specifically addressing how health-care

expenses are allocated do not apply when the provision is used. Instead, the tiebreaker provision focuses on Jane's psychiatric treatment.

The decree specifically addresses who must pay for out-of-network healthcare expenses. The decree requires that the party incurring the out-of-network

health-care expense pay 100 percent of that expense. The decree provides only three

exceptions to this requirement: (1) the expenses are emergency health-care expenses;

(2) the parties agree in writing to a different allocation of out-of-network expenses;

or (3) further order of the court. Gavriella intimates that the tie-breaker provision

implies an additional exception. We disagree.

"A contract's plain language controls, not what one side or the other alleges

they intended to say but did not.” Pathfinder Oil & Gas, Inc. v. Great W. Drilling,

Ltd., 574 S.W.3d 882, 888 (Tex. 2019) (internal quotation marks and brackets

omitted); see Union Pacific R.R. v. Novus Int'l, Inc., 113 S.W.3d 418, 421 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied) ("We glean intent from what the

parties said in their contract, not what they allegedly meant.”). Contrary to

Gavriella's construction, the decree does not provide an additional exception for outof-network health-care expenses other than the three listed. And we cannot add

language to a contract under the guise of interpretation. LG Ins. Mgmt. Servs., L.P.

v. Leick, 378 S.W.3d 632, 638 (Tex. App.—Dallas 2012, pet. denied); see Am. Mfrs.

57

Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003) ("[W]e may neither

rewrite the parties' contract nor add to its language.”).

Both sides point out that we must "consider the entire writing and attempt to

harmonize and give effect to all the provisions of the contract by analyzing the

provisions with reference to the whole agreement.” Frost Nat'l Bank v. L & F

Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005). "No single provision taken alone

will be given controlling effect.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223,

229 (Tex. 2003).

Reading the entire decree and giving effect to all its language, we conclude

that the tie-breaker provision does not function as an exception to the requirement

that the party incurring out-of-network health-care expenses must pay for those

expenses. The tie-breaker provision operates to resolve disagreements pertinent to

the conservatorship issue of what psychiatric treatment Jane should receive. The

provision addressing out-of-network health-care expenses operates to resolve who

pays those out-of-network expenses. Construing the tie-breaker provision as an

exception to the provision addressing out-of-network expenses would give the tiebreaker provision controlling effect, which is not permissible. See id. But giving

effect to the provision addressing out-of-network expenses would not have

controlling effect over the tie-breaker provision. The two provisions can be

harmonized, and both given effect. Thus, because no exception applies, Gavriella

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was required to bear 100 percent of the health-care expenses she incurred at

Menninger. The trial court abused its discretion when it confirmed the Menninger

arrearages of $10,085.55 and rendered a cumulative money judgment to include that

amount.

We overrule Dani's first issue to the extent that he challenges the arrearages

award of $34,547.79 for the health-care expenses Gavriella incurred at Visions, but

we sustain Dani's first issue to the extent he challenges the arrearages award for

$10,085.55 for the health-care expenses Gavriella incurred at Menninger.

Attorney's Fees

In his second issue, Dani asserts that "[t]he judgment for attorney's fees must

be vacated because there was no child support violation to support the judgment.”

Dani contends that, because the trial court erroneously determined that he owes

Gavriella medical child support for the expenses she incurred at Visions and at

Menninger, the trial court could not order him to pay $12,500 in attorney's fees

under penalty of contempt. In short, Dani's second issue is predicated on the

complete success of his first issue.

Family Code section 157.167(a) provides:

If the court finds that the respondent has failed to make child support

payments, the court shall order the respondent to pay the movant's

reasonable attorney's fees and all court costs in addition to the

arrearages. Fees and costs ordered under this subsection may be

enforced by any means available for the enforcement of child support,

including contempt.

59

TEX. FAM. CODE § 157.167(a).

Because, as discussed above, the trial court did not abuse its discretion in

finding that Dani failed to pay medical child support to Gavriella with regard to the

arrearages that he owed for the Visions health-care expenses, the trial court was

required under Family Code section 157.167(a) to order Dani to pay Gavriella's

reasonable attorney's fees, which are enforceable by contempt. See id. Thus, the trial

court did not err when it ordered Dani to pay attorney's fees, and we reject Dani's

request to vacate the attorney's fees award.7 See id.

We overrule Dani's second issue.

In the appeal (appellate cause no. 01-21-00093-CV), we modify the

cumulative money judgment for the medical child support arrearages to reflect the

7 We note that, as described in the background section above, the trial court did not

hold Dani in contempt for failing to pay attorney’s fees. The order adjudged Dani

in contempt for eight violations of failing to pay medical child support. The trial

court ordered Dani confined to jail for 180 days for each of the eight violations

unless he paid both the ordered medical child support he owed and the ordered

attorney’s fees. The trial court suspended Dani’s commitment to jail if he paid the

medical child support and the attorney’s fees by specified dates. In the mandamus

proceeding, we have ordered the trial court to vacate the portion of the enforcement order holding Dani in contempt for failing to pay medical child support, thereby

removing the contempt for which punishment was assessed. 60

amount of $34,547.79 instead of $44,633.34, and we affirm the enforcement order

as modified, including the attorney’s fee award.8

In the original proceeding (appellate cause no. 01-20-00828-CV), we

conditionally grant Dani’s mandamus petition and direct the trial court to vacate its

order, contained in the enforcement order, holding Dani in contempt for failing to

pay medical child support. Our writ will issue only if the court fails to comply. We

lift the stay imposed by this Court’s December 21, 2020 order.