Herzfeld, Susan v. Herzfeld, Ronald--Appeal from 330th Judicial District Court of Dallas County (Memorandum Opinion )

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Laws-info.com » Cases » Texas » 5th District Court of Appeals » 2012 » Herzfeld, Susan v. Herzfeld, Ronald--Appeal from 330th Judicial District Court of Dallas County (Memorandum Opinion )

State: Texas

Court: Texas Northern District Court

Docket No: 05-10-01298-CV

Case Date: 12/06/2012

Plaintiff: Herzfeld, Susan

Defendant: Herzfeld, Ronald--Appeal from 330th Judicial District Court of Dallas County (Memorandum Opinion )

Preview:REVERSE and REMANI) in part, AFFIRM in part; Opinion issued l)ecember 6, 2012

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No. 05-10-01298-CY SUSAN EDIS HERZFELD, Appellant
V. RONALD MICHAEL HERZFELD, Appellee

On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. 89-232-V

MEMORANDUM OPINION
Before Justices Morris. Francis. and Murphy Opinion By Justice Francis
Susan Edis l-Ierzfeld appeals the trial court order regarding her post-divorce motion for

enforcement. In five issues. Susan contends the trial court erred in (1) refusing to award statutory prejudgment interest on a child support arrearage, (2) denying her requests for unreimbursed health insurance and payments to a psychologist, (3) denying prejudgment interest on unreimbursed amounts paid to Pediatric Associates, and (4) awarding her attorney less than ten percent of the fees
incurred. We sustain Susan's issues related to prejudgment interest on the child support arrearage

and unreimbursed medical payments. We reverse the trial court's order and remand for the trial court to recalculate prejudgment interest on those obligations and, in light of our disposition, to reconsider the amount of attorney's fees.

This is the second appeal in a long and contentious history between the parties. l3riefly, Susan and Ronald I lerzfeld divorced in [)ecemher I 9Q I ilie divorce decree required Ronald to pay $500 per month in child support. the cost of the children's health insurance, and halfoithe children's uninsured medical expenses, until their two children turned eighteen or graduated from high school. whichever was later. (Both children are now adults: the youngest graduated from high school in May 1997.) Susan was required to provide Ronald with copies ol the insurance policies and schedule of payments as well as copies of statements and bills for health care expenses not covered by insurance. The decree also provided that Susan would have exclusive possession of the parties' residence, which would he sold at the end of Ronald's child support obligations. Under the decree, each party was required to keep the other fully and promptly informed of his or her current address. After the divorce. Ronald stopped making the required child support payments and moved out of town without notifying Susan of his address change. Then, in 2004, he reappeared and filed a motion to enforce the portion of the decree regarding the sale of the house. After filing the motion. Ronald contacted the Dallas County Child Support Office to obtain the amount of his child support arrearage and was told it was $1 1.835 for the period ending September 30. 1996, which was the month his youngest child turned eighteen. The child support office did not include any amounts owed for the months until the youngest child graduated from high school, nor did it include statutory prejudgment interest. In October 2004, Ronald paid Susan $1 1,835. At a hearing in February 2006, the trial court acknowledged Ronalds obligation to pay child support until the youngest graduated from high school, calculated his additional arrearage at $3000, and ruled that no interest accrued on any unpaid or late-paid child support. Ronald tendered a check to Susan for $3000, which she did not cash. Susan then appealed for the first time to this Court. One of her issues challenged the trial

court's determination that she was not entitled to prejudgment interest on past due child support. See
iIeite/d i'.

iJerJeId, 285 S.W.3d 122. 128 (Tex. App. --Dallas 2009. no pet.). in our prior opinion.

we noted that Ronald conceded there were arrearages beginning in 1994 when he ftiiled to make the payments ordered by the decree and that his obligation did not cease until 1997. We also noted that

Ronald did not make any further payments until 2004. After setting out various provisions of the family code regarding child support, we explained a trial court does not have discretion to increase or reduce the amount of arrearage or interest. icl. at 129, We reversed the trial court's order and remanded the cause to the trial court lbr consideration of the amount of interest to be included in the judgment. Id. at 133. Back in the trial court, Susan amended her previously unheard motion for enforcement of child support and sought a cumulative money judgment for all unpaid child support not previously confirmed, the balance owed on previously-confirmed arrearages, interest on all arrearages, all unreimbursed medical insurance premiums and uninsured medical expenses with interest, and attorney's fees. The trial court conducted an evidentiary hearing. on Susan's motion. Susan presented evidence of child support, insurance payments, and medical expenses that Ronald failed to pay. Ronald acknowledged he did not timely pay child support and made lump sum payments of $1 1,835 and $3000 years after the money was due. He also claimed he did not receive medical or insurance bills from Susan but admitted he did not provide her with his address as required under the divorce decree. After hearing all the evidence, the trial court refused to assess interest on the $1 1.835 lump sum payment made in 2004 and assessed interest on the $3,000 payment beginning on November 1, 2004 and ending on February 23, 2006; denied Susan's request for reimbursement of medical insurance premiums and payments to the children's psychologist; awarded Susan $622 in

reimbursement on payments to the childrens pediatrician but denied prejudgment interest: and awarded $1 5.000 in attorneys fees to two diftrent attorneys who have represented Susan in these matters. This appeal ensued. Most appealable issues in a family law case, including a trial court's order granting or denying the relief requested in a motion for enforcement. are evaluated For an abuse of discretion. In re A. C'. B., 302 S.W.3d 560, 563 (Tex. App.--Amarillo 2009, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. In re :I.B.f.. 291 S.W.3d 91.95 (Tex. App.--Dallas 2009, no pet.). A trial court's failure to analyze or apply the law correctly constitutes an abuse ofdiscretion, Walker v. Packer, 827 S.W.2d 833. 840 (Tex. 1992). A trial court's findings are reviewable for legal and factual sufficiency of the evidence supporting them by the same standards that are applied in reviewing evidence supporting a jury s answer. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.--Dallas 2005, pet. denied). However, in family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standard of review: as a result. legal and factual sufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion because the evidence is insufficient to support its decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857. Stated inversely, we must conclude that the trial court's decision was neither arbitrary nor unreasonable. Id. In her first issue, Susan contends the trial court abused its discretion in refusing to award

statutory prejudgment interest on the undisputed child support arrearage. In particular, she complains the trial court refused to award any prejudgment interest on the $11,835 paid in 7004, ears after it
was due. With respect to the $3,000 lump sum payment made in November 2006. she complains the

trial court erred in calculating prejudgment interest from November 2004 instead of the dates the
payments were due.

Section 157.265 of the Texas Family Code provides that interest accrues on past due child support. See TEX. FAM. CoDE ANN.

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