Articles Posted in Enforcement

Many parents worry about paying for the children’s medical expenses after divorce. If you have a final decree or custody order there should be provisions that detail how the children’s medical expenses will be split among the parents. Typically, one parent is ordered to maintain or obtain health insurance coverage for the children, the other parent might be ordered to pay all or half of the premium (depending upon the custody and visitation arrangement) and then the parties are ordered to pay 50/50 of the unreimbursed or uninsured medical expenses. Most likely, the parent who receives the bill of the medical expenses is ordered to send the actual bill to the other parent within 30 days of receiving the bill. Then, that parent has 30 days from receipt to reimburse the paying parent for their 50% of the expense. The problem arises in that most parties either do not realize or do not comply with the time limitations in the orders. So, what does that mean? If you have received a medical bill and failed to send it to the other parent within 30 days, does that mean that you have to count your losses on the medical expenses?

The Dallas Fifth District Court of Appeals answered this issue recently on an appeal from a Collin County case in In the Interest of I.O.K., J.C.K., and M.O.K., Children. In that case, the parties were divorced and subsequent to that, the mother filed an enforcement seeking reimbursement of medical expenses on the children’s psychology bills. The father failed to pay. The parties’ agreed decree stated, in part, that the party receiving the medical bill must send “all forms, including explanation of benefits (EOB), receipts, bills, and statements reflecting the uninsured portion of the health-care expenses within 30 days after” the party receives them. The father argued that mother never did this and so he should not have to pay. This is despite the fact that he knew the children were attending sessions with the psychologist and had received the bills in the discovery that the parties completed. The father was even receiving the bills from the insurance company with the EOBs. However, at the final hearing the mother admitted that she never sent the bills directly to father within 30 days of receiving them.

Based upon these facts and the reviewed testimony, the Court of Appeals agreed with father that his obligation to reimburse mother his portion of the unreimbursed medical expenses does not arise until mother complies with the terms of the decree and sends the bills to father within 30 days of receiving them. Mother even admitted this in her testimony. Therefore, the Court of Appeals held that you cannot hold the father responsible for the unreimbursed medical expenses when mother did not comply with her obligation under the decree. Therefore, they reversed the trial court’s ruling and ordered that mother take nothing.

If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place.  If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending.  That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case.  For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children.  These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties.  If any portion of those orders is violated by either party, there are options.   The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive.  Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so.  It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily.  All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating.  But, you do have recourse.  Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do.  If it is a failure to pay child support, the violating party also faces possible jail time.  You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things.  Depending upon those reasons, the Court may be a little lenient upon the person.  It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet.  Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future.  The question becomes what type of relief can be sought on this type of case.  This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact.  However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate.  In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree.   Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so.  Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18.  In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment.  Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments.  Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”