Opinion
No. 01–12–00704–CV.
2012-12-28
In re Tammy FOUNTAIN, Relator.
Daniel J. Lemkuil, Shannon L. Boudreaux, for Tammy Fountain. Linda Marshall, for Kathy Katcher.
Daniel J. Lemkuil, Shannon L. Boudreaux, for Tammy Fountain. Linda Marshall, for Kathy Katcher.
Panel consists of Justices KEYES, MASSENGALE, and BROWN.
OPINION
MICHAEL MASSENGALE, Justice.
In this habeas corpus proceeding, relator Tammy Fountain challenges the legality of her confinement for violating an agreed order in a suit affecting the parent-child relationship. Fountain stipulated that she violated the order, which resulted in findings of contempt and an order committing her to a 60–day jail sentence. The commitment order was suspended, conditioned upon Fountain's continuing compliance with court orders. Acting on a motion to revoke the suspension of commitment, the trial court subsequently found that Fountain had committed further violations of the court's orders, and it ordered that she be taken into custody in accordance with the prior contempt order.
The underlying case is In the interest of S.F., a child, No. 2010–31997 in the 309th District Court of Harris County, Texas, the Honorable Sheri Dean, presiding.
Finding no abuse of discretion in the trial court's revocation of its prior suspension of commitment, we deny the petition.
Background
This is the second time Fountain has sought relief in this court from the proceedings in a suit affecting her parental relationship with her adopted son. See In re Fountain, No. 01–11–00198–CV, 2011 WL 1755550 (Tex.App.-Houston [1st Dist.] May 2, 2011, orig. proceeding) (opinion on rehearing). After we denied mandamus relief from the denial of a motion to dismiss the underlying suit, Fountain agreed to the entry of an order which appointed her as sole managing conservator and Kathy Katcher as a nonparent possessory conservator. Among other things, the October 18, 2011 agreed order provided that within 30 days each party was to “permit the other conservator to obtain health-care information regarding the child” and authorize the disclosure of “protected health information to the other conservator.” This order also required each party to notify the “other party, the court, and the state case registry” of any change in the party's contact information, including current residence, phone number, and employer contact information. Fountain and Katcher were also required to provide notification of any intended change in this residency and contact information “on or before the 60th day before the intended change.” If a party did not know of the change in time to provide the 60–day notice, then notice was required “on or before the fifth day after the date that the party knows of the change.”
Several months after the entry of the October 18 agreed order, Katcher moved to enforce that order for Fountain's failure to comply. The trial court held two hearings on May 3 and May 11, 2012. The parties stipulated, and the court found, that Fountain violated the October 18 order by failing to execute releases and thereby failing to permit Katcher to obtain health-care information regarding the child, as required by the agreed order. In an order dated May 24, 2012, Fountain was found to be in contempt and ordered to be committed to the Harris County Jail for a period of 60 days as punishment. In the same order, the 60–day jail sentence was suspended on the condition that she comply with the October 18 agreed order and with additional provisions contained in a new modification order which, like the contempt order, was also dated May 24, 2012.
The May 24 modification order required, among other provisions, that Fountain notify the child's schools in writing that Katcher could have lunch with the child at school, attend school activities, and “receive all school notices, including all email notices normally sent to parents.” Fountain was required to provide this notice to the child's current school by May 15, a date which was four days after the May 11 hearing but nine days before the May 24 order giving rise to this new obligation was actually entered. Additionally, the modification order obligated both parties to exchange a variety of information through an internet application called “Our Family Wizard.” The parties were also required to promptly update this data, within 36 hours of any change to any of the initially exchanged data or to other specified scheduling matters, including but not limited to the inability to exercise a period of possession or knowledge that the child would not be attending a previously scheduled extracurricular activity.
Approximately one month later, Katcher moved to revoke the suspension of Fountain's commitment. Katcher alleged multiple violations of the prior orders, three of which are relevant in this proceeding. First, she alleged that Fountain had failed to give her sufficient notice of changes to the child's residence when Fountain notified her of a change of residence to Galveston County effective three days later. Second, she alleged that Fountain had not timely notified the child's school that Katcher could visit the child for lunch, pick him up from class, and attend school activities. Third, she argued that Fountain had violated the provision of the modification order requiring communication within 36 hours through Our Family Wizard about changes to the scheduled possessory period with the child.
After a hearing, the trial court revoked the suspension of Fountain's commitment in an order dated July 31, 2012. The court found that Fountain had violated the prior orders three times. First, she had failed to “provide the required notice” that she was moving on June 22 when she mailed notice of the move to Katcher on “June 18, 2012.” Second, Fountain had failed to inform the school by May 15 that Katcher had permission to access the child there. Third, Fountain had failed to post information to Our Family Wizard as required. The district court ordered that Fountain be committed in accordance with “the orders attached hereto as Exhibits A, B, and C.” A copy of the May 24 commitment order was attached as Exhibit A. On its second page, that order provided that “punishment for the violation set out above is assessed at confinement in the Harris County Jail for a period of sixty (60) days.” Fountain was taken into the custody of the jail on the same day.
Fountain filed an original petition for writ of habeas corpus seeking relief in this court, raising five issues. We ordered her released on bond pending our determination of her petition. SeeTex.R.App. P. 52.10.
Analysis
A final order for possession of or access to a child may be enforced by means of a motion for enforcement as provided by chapter 157 of the Family Code. Tex. Fam.Code § 157.001(a) (West 2008). Such an order may be enforced by contempt, as also provided by chapter 157. Id. § 157.001(b). Chapter 157 specifies particular information that a motion for enforcement must provide “in ordinary and concise language,” including identification of “the provision of the order allegedly violated and sought to be enforced,” “the manner of the respondent's alleged noncompliance,” and “the relief requested by the movant.” Id.§ 157.002(a). A motion to enforce the terms and conditions of access to a child must also include “the date, place, and, if applicable, the time of each occasion of the respondent's failure to comply with the order.” Id.§ 157.002(c). Chapter 157 sets forth detailed procedures for hearings on enforcement motions.
SeeTex. Fam.Code Ann. §§ 157.061–.168. For example, upon the filing of a motion for enforcement requesting contempt, the trial court shall set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Id. § 157.061(a). The respondent is entitled to receive personal service of a copy of the motion and notice not later than the 10th day before the date of the hearing. Id. § 157.062(c). If a respondent who has been personally served with notice nevertheless fails to appear at a hearing, the court may not hold the respondent in contempt but may, on proper proof, grant a default judgment for the relief sought and issue a capias for the arrest of the respondent. Id. § 157.066.
One potential outcome of a hearing on an enforcement motion requesting contempt findings and sanctions is that the trial court “may place the respondent on community supervision and suspend commitment if the court finds that the respondent is in contempt of court for failure or refusal to obey an order rendered as provided in this title.” Id. § 157.165. Community supervision under chapter 157 is subject to different procedures from those applicable to enforcement motions. The procedures governing community supervision are detailed in a distinct subchapter. Under that subchapter, a “party affected by the order may file a verified motion alleging specifically that certain conduct of the respondent constitutes a violation of the terms and conditions of community supervision.” Id. § 157.214. Unlike the procedures generally applicable to a motion to enforce, a prima facie showing of a violation of a condition of community supervision can result in the immediate arrest of the respondent, id. § 157.215, followed by a hearing on the motion to revoke community supervision within three days. “After the hearing, the court may continue, modify, or revoke the community supervision.” Id. § 157.216(c).
Compare id. § 157.216(a) (“The court shall hold a hearing [on motion to revoke community supervision] without a jury not later than the third working day after the date the respondent is arrested under Section 157.215.”) with id. § 157.062(c) (“Notice of hearing on a motion for enforcement of an existing order providing for ... possession of or access to a child shall be given to the respondent by personal service of a copy of the motion and notice not later than the 10th day before the date of the hearing.”).
In her petition, Fountain alleges numerous deficiencies and errors in the motion and order that revoked the suspension of her commitment to jail. A commitment order is subject to collateral attack in a habeas corpus proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex.2005); seeTex. Gov't Code Ann. § 22.221(d) (West 2004) (granting the appellate courts the power to issue writs of habeas corpus). The purpose of the habeas corpus proceeding is not to determine the guilt or innocence of the relator, but only to determine whether she has been unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). We initially presume that the contempt order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding). But the writ will issue if the trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Id. (citing Henry, 154 S.W.3d at 596).
The relator bears the burden of showing that she is entitled to relief. Id. In reviewing the record, we do not weigh the proof; rather, we determine only if the judgment is void because, for example, the relator has been confined without a proper hearing or with no evidence of contempt to support her confinement. Ex parte Chambers, 898 S.W.2d 257, 260 (Tex.1995); seeTex. Gov't Code Ann. § 22.221(d) (providing that courts of appeals exercise jurisdiction over habeas corpus petitions “[c]oncurrently with the supreme court”).
I. Punishment
In her first issue, Fountain argues that the July 31 revocation order was void because it did not clearly state the punishment imposed. She notes that the order, including its three attachments, is 37 pages long, but that the text of the order itself does not specify the length of the jail sentence or identify which attachment contains the sentence. Fountain does acknowledge, however, that the May 24 contempt order was attached to the July 31 revocation order and specified a 60–day jail sentence.
Fountain relies upon Family Code section 157.166(a)(4) for the proposition that “an enforcement order must include ‘the relief granted by the court.’ ” This provision is contained within subchapter D of chapter 157 relating generally to enforcement hearings and orders in suits affecting the parent-child relationship. SeeTex. Fam.Code § 157.001(a) (“A motion for enforcement as provided in this chapter may be filed to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order.”). Section 157.166 does specify certain contents which must be included in an enforcement order, including “the relief granted by the court.” See id.§ 157.166(a)(4). But the provision is not part of subchapter E, which relates specifically to community supervision, including proceedings to revoke community supervision. See id. §§ 157.211–217.
Although Fountain's legal challenges are directed at the July 31 revocation order, the actual enforcement order at issue in this proceeding is the May 24 contempt order. Fountain does not complain that this order failed to identify “the relief granted by the court”—indeed, she concedes that it did. Her complaint, instead, is that the relief was not expressly stated in the July 31 revocation order, and that referencing the May 24 contempt order and attaching it to the July 31 revocation order was the equivalent of not including it at all. As characterized by Fountain, “[h]iding this requirement [of a statement of ‘the relief granted by the court’] is the equivalent of not including it.”
We disagree with the suggestion that the statement of the relief granted by the court was “hidden” in any relevant sense. Fountain relies on In re Levingston, 996 S.W.2d 936, 938 (Tex.App.-Houston [14th Dist.] 1999, no pet.), and Ex parte Waldrep, 783 S.W.2d 332, 333 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding), for the proposition that “the purpose of the commitment order is to notify the offender of how she has violated its provisions, to notify the sheriff so that he can carry out enforcement, and to provide sufficient information for an adequate review.” We do not question this principle. See, e.g., In re Luebe, No. 01–09–00908–CV, 2010 WL 1546961 (Tex.App.-Houston [1st Dist.] Apr. 2, 2010, no pet.); Turner, 177 S.W.3d at 289. However, Fountain provides no argument about how she lacked adequate notice of the sentence, what information is missing for law enforcement purposes, or how our review has been impaired. To the contrary, the record is clear that Fountain was sentenced to a 60–day jail sentence in the May 24 contempt order, that the sentence was suspended on the condition of her future compliance with the court's orders, and that on July 31 the trial court found that such orders had been violated and accordingly revoked the suspension of the previously entered 60–day sentence.
The May 24 contempt order provided on its second page that “punishment for the violation set out above is assessed at confinement in the Harris County Jail for a period of sixty (60) days.” This clearly stated the punishment imposed, contrary to Fountain's assertion that it was hidden. “There is no particular form required of either the order of contempt or the commitment order, provided that their essential elements appear in a written document.” Ex parte Snow, 677 S.W.2d 147, 149 (Tex.App.-Houston [1st Dist.] 1984, no writ). We overrule Fountain's first issue.
II. Grounds for revocation of suspension
In her four remaining issues, Fountain argues that Katcher's motion for revocation and the trial court's July 31 revocation order fail to satisfy the procedural standards of Family Code chapter 157 in several respects. In her second issue, she argues that the judgment of contempt cannot be enforced based on violations of the May 24 modification order because the conditions of suspension in the May 24 contempt order mistakenly reference the “Modification Order of May 25, 2012.” In her third issue, she argues that although Katcher's motion to revoke alleged that she violated the October 18 agreed order by mailing a notice on June 19, 2012, the trial court found that the violation was committed on June 18, 2012, and therefore is “not supported by the pleadings.” The fourth issue relates to the requirement in the May 24 contempt order that certain information be provided by May 15—before that order was actually entered. And the fifth issue complains of the specificity of the motion to revoke and the revocation order with respect to the allegation and finding that Fountain interfered with Katcher's participation in school lunches by failing to timely share information about the child's schedule on Our Family Wizard in violation of the court's orders.
One misconception underlies each of these issues in common. Fountain wrongly assumes that Katcher's motion to revoke and the trial court's revocation order must satisfy all of the procedural safeguards for an enforcement motion under subchapter D of chapter 157, as if a separate allegation, finding, and sentence for contempt of court were at issue. In other cases, these safeguards in fact have been applied under circumstances when a party has been found in contempt and sentenced, the commitment has been suspended subject to compliance with specified conditions, and then in further proceedings to revoke the suspension of commitment, a trial court made additional findings of contempt and imposed a different punishment. In such circumstances, with new allegations of contempt and enhanced sanctions, the motion to revoke does not merely invoke a previously rendered judgment of contempt, but the new motion instead functions as a separate enforcement motion for purposes of chapter 157. See, e.g., In re Broussard, 112 S.W.3d 827, 831 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Ex parte Bagwell, 754 S.W.2d 490, 493 (Tex.App.-Houston [14th Dist.] 1988, no writ); Ex parte Durham, 708 S.W.2d 536, 537 (Tex.App.-Dallas 1986, no writ).
In this case, however, although Katcher alleged and the trial court found that Fountain had violated the conditions of the suspension of her commitment, Katcher did not request and the trial court did not enter additional findings of contempt. Instead, as anticipated by chapter 157 and particularly subchapter E pertaining to community supervision, the trial court merely enforced the provisions of its own suspended commitment order, and it revokedthe suspension, resulting in the imposition of the original sentence imposed for the original, admitted episodes of contempt.
Fountain provides no argument or authority for us to apply subchapter D of chapter 157 and its detailed procedures applicable to an original enforcement hearing to the separate circumstance of a proceeding merely to determine whether to revoke the suspension of a valid prior order of commitment for contempt, and we decline to do so. That approach would render ineffective the common practice of suspending contempt judgments contingent upon future compliance with court order. There is no reason to deprive trial courts of such flexibility in the enforcement of their orders. A heightened procedural standard is justified for contempt proceedings in the first instance, especially when incarceration of the respondent is a potential result. But once there has been a judgment of contempt, there is no requirement that the same heightened measure of process be provided in order to adjudicate an allegation that the conditions of a suspended judgment have been violated. Instead, like the analogous circumstance of an appeal from the revocation of probation in a criminal proceeding, we review the trial court's ruling for an abuse of discretion. See, e.g., Bryant v. State, 391 S.W.3d 86 (Tex.Crim.App.2012); see also In re Butler, 45 S.W.3d 268, 272 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (“Proceedings in contempt cases should conform as nearly as practicable to those in criminal cases.”). In the case of an order revoking community supervision, proof of any one violation of the conditions of suspension is sufficient to support the revocation order. See In re Bourg, No. 01–07–00623–CV, 2007 WL 2446844 (Tex.App.-Houston [1st Dist.] Aug. 27, 2007, no pet.) (holding proof of any one violation of an order revoking suspension of commitment for contempt is sufficient to support revocation); In re B.C.C., 187 S.W.3d 721, 724 (Tex.App.-Tyler 2006, no pet.).
Accordingly, we must deny relief if the revocation was justified on any basis, and in this case it was. After Fountain received notice of Katcher's motion to revoke and a hearing was held, the trial court found three violations of Fountain's conditions of suspension of commitment. One of the violations related to Fountain's failure to comply with the trial court's order with respect to timely informing Katcher of a planned change of residential address. The October 18 agreed order provided, in relevant part: Required Notices
EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS.... THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60–DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT PARTY KNOWS OF THE CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested....
In the July 31 revocation order, the trial court specifically found that Fountain had violated this provision by failing to provide Katcher the “required notice” of her plan to move to Galveston County. This finding was supported by circumstantial evidence presented at the evidentiary hearing on the motion to revoke. On June 18, 2012, Fountain sent a letter to Katcher, informing her of a change of residential address. Fountain would have violated the agreed order's “Required Notices” provision if she knew of “an intended change” of residential address before June 13, or more than five days before she actually provided notice of the move to Katcher.
Fountain testified that she knew a move was possible as of June 14, but she did not know until June 16 that the move would actually occur. Other evidence at the hearing cast serious doubts on that testimony. The child spent the weekend of June 15–17 with Katcher. During that weekend, the child told Katcher that he had a “condo in Galveston” with his own bathroom, that it had a pool where he had been swimming, and that he been to his new school. Fountain admitted that the child had learned all of this information prior to June 15. Additionally, on June 16 Fountain leased her Houston home to an acquaintance. Nevertheless, Fountain insisted that she did not know about the intended move until June 16.
The burden of proof to justify the revocation of a suspension of commitment is a preponderance of the evidence, meaning that greater weight of the credible evidence which would create a reasonable belief that the respondent violated a condition of the suspension of commitment. Cf. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex.Crim.App.2006) (describing burden of proof to revoke probation). We review the evidence in the light most favorable to the trial court's judgment. See Canseco v. State, 199 S.W.3d 437, 439 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). “The trial court is the exclusive judge of the credibility of the witnesses and must determine whether the allegations in the motion to revoke are sufficiently demonstrated.” Id.
As the exclusive judge of the credibility of the witnesses, the trial court obviously did not believe Fountain's testimony that she did not know of an intended change of residential address prior to June 14. The circumstantial evidence relating to the move, including the child's knowledge of details about the new residence and the arrangement of a tenant to lease Fountain'sHouston home, supported a reasonable belief that Fountain violated the agreed order's requirement that she notify Katcher on or before the fifth day after she knew of the intended change.
Fountain also contends that Katcher's motion to revoke failed to provide her sufficient notification of this alleged violation due to a variance in the date of her written notice as specified in the motion (June 19) and the date identified in the revocation order (June 18). This defect does not invalidate the revocation order. “It is well settled that allegations in a revocation motion need not be made with the same particularity of an indictment although such allegations must be specific enough to give the accused notice of alleged violation of law contrary to conditions of probation.” Chacon v. State, 558 S.W.2d 874, 876 (Tex.Crim.App.1977) (quoted with approval in In re Zandi, 270 S.W.3d 76, 77 (Tex.2008) (per curiam)). The motion to revoke adequately notified Fountain of the essential allegations against her, relating to the timing of her written notice of the move to Galveston. Her letter was dated June 16 but was actually mailed on June 18. The motion to revoke's reference to the notice being mailed on June 19 did not deprive Fountain of notice of the essential allegation about her violation of the requirement of written notice.
Accordingly, we overrule Fountain's third issue challenging the adequacy of the motion to revoke to provide her notice of the allegation that she violated the agreed order by providing untimely notice of an intended move. Because at least one of the grounds for revocation was supported by the evidence, we need not address Fountain's remaining issues challenging the other two violations found by the trial court.
Conclusion
We conclude that Fountain has not shown that she was illegally restrained by the trial court's order revoking suspension of commitment and committing her to county jail. We therefore deny Fountain's request for habeas corpus relief. Justice KEYES, dissenting.
EVELYN V. KEYES, Justice, dissenting.
I respectfully dissent. I deeply disagree with the majority's characterization of the issues in this case, its legal conclusions, and its disposition of this habeas corpus proceeding.
The trial court found Tammy Fountain in contempt for violating a court order in a suit affecting the parent-child relationship, sentenced her to jail, and, in the same order, suspended her commitment. The court subsequently revoked its earlier suspension order and committed Fountain to jail. In five issues, she contends that the commitment order is void and violates her constitutional due process rights. The majority first addresses the trial court's order committing Fountain to jail and reaches its conclusion that she be returned to jail. It fails to identify or address any of the five issues raised by Fountain until page eight of its opinion, swiftly disposes of the first issue, and then lumps her other four issues together and disposes of those by holding that the statutory and constitutional procedural safeguards that apply to contempt proceedings do not apply to orders revoking the suspension of commitment.
The underlying case is In the interest of S.F., a child, No. 2010–31997, in the 309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean, presiding.
I agree with Fountain that the commitment order is void under established Texas law and that, therefore, her commitment to jail violates her constitutional right to due process of law. In its contempt order committing Fountain to jail, the trial court failed to specify the manner in which Fountain had committed two of the three violations for which it found her in contempt. For the remaining violation, the trial court found Fountain in contempt for acts that occurred before the court signed the order giving rise to Fountain's obligation. The commitment order is, therefore, void. I would hold that the trial court abused its discretion in revoking its order suspending Fountain's commitment. I would grant the petition for writ of habeas corpus, and I would order Fountain discharged.
Background
On October 18, 2011, the trial court signed an order in which Tammy Fountain and Katherine Katcher agreed to their various rights and duties as conservators of a child. Among its numerous provisions, this order provided that, within thirty days after the signing of the order, each party was to “permit the other conservator to obtain health-care information regarding the child” and to authorize the disclosure of “protected health information to the other conservator” pursuant to federal health care law. The order also required each party to notify the “other party, the court, and the state case registry of any change in the party's current residence,” phone number, employer contact information, and other similar information. The party was required to provide notification of any intended change in this residency and contact information “on or before the 60th day before the intended change.” If the party did not know of the intended change in enough time to provide the sixty-day notice, then the party was required to give notice “on or before the fifth day after the date that the party knows of the change.”
Several months later, on May 24, 2012, the trial court entered an order of contempt against Fountain because the court found that she had violated the earlier October 18, 2011 order by failing to execute the required releases to allow Katcher to obtain the child's health-care information. Accordingly, the trial court ordered Fountain committed to Harris County Jail for sixty days. But in the same order, the court suspended Fountain's commitment so long as she complied “with each and every provision of the Agreed Order of October 18, 2011, and of the Modification Order of May 25, 2012.” To accompany this order, the trial court prepared a modification order, which imposed new duties and obligations on Fountain. The hearing on these orders was held on May 11, 2012, but the orders were not signed and filed until May 24, 2012, thirteen days later.
The May 24, 2012 modification order, among other provisions, required that Fountain notify the child's school, in writing with notice to the court, that Katcher could have lunch with the child at school, pick the child up from school, attend school activities, and receive all school notices. Fountain was required to notify the child's current school by May 15, 2012, four days after the hearing on the new order, but nine days before the trial court signed the new order giving rise to this obligation. Additionally, the May 24, 2012 modification order obligated both parties to exchange contact information and schooling information and, within thirty-six hours of a change, to post any changes to periods for possession of the child through an Internet program called “Our Family Wizard.”
A month later, Katcher moved to revoke the suspension of Fountain's commitment. She accused Fountain of four violations of the prior orders. First, she alleged that Fountain had failed to provide the required notice of changes to the child's residence when Fountain had notified her only on June 19, 2012, that Fountain and the child would be moving to Galveston County three days later. Second, she alleged that Fountain had not notified the child's school by May 15, 2012, that Katcher could visit the child for lunch, pick him up from class, attend school activities, and receive school notices. Third, Katcher alleged that Fountain had violated the provision of the May 24, 2012 modification order requiring communication within thirty-six hours through the Our Family Wizard website about changes to the scheduled possessory period with the child. Fountain had allegedly told Katcher that the child would not be available for Katcher's scheduled lunch visit on June 6, 2012, because the child would be absent from school all week, but she then told Katcher on June 8, 2012, that the child had only been absent on the day scheduled for Katcher's visit. Fourth, Katcher accused Fountain of not paying a $77 court cost.
On July 31, 2012, after a hearing, the trial court revoked the suspension of Fountain's commitment (“the commitment order”). Using substantially the same wording as found in Katcher's motion to revoke, the court found that Fountain had violated its prior orders three times. First, she failed to “provide the required notice” that she was moving on June 22, 2012, when she mailed notice of the move to Katcher on June 18, 2012. Second, Fountain failed to inform the child's current school by May 15, 2012, that Katcher had permission to access the child there. Third, Fountain failed to post information to Our Family Wizard as required when she had told Katcher that the child was unavailable for lunch with Katcher on June 6, 2012. The district court ordered that Fountain be committed in accordance with “the orders attached hereto as Exhibits A, B, and C.” A copy of the original May 24, 2012 contempt order hand-labeled with an “A” followed the revocation order. On its second page, the attached contempt order provided that “punishment for the violation set out above is assessed at confinement in the Harris County Jail for a period of sixty (60) days.”
Fountain filed an original petition for writ of habeas corpus seeking relief in this Court, raising five issues. We ordered her released on bond pending our determination of her request for relief.
Contempt and Commitment Orders
“Criminal contempt is punishment for past disobedience to a court order that constitutes an affront to the dignity and authority of the court.” In re Houston, 92 S.W.3d 870, 876 n. 2 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). Civil contempt is remedial and coercive; release may be procured by compliance with the provisions of the court's order. Id. “Civil contempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings.” Id. at 876. Among the due process rights accorded is the right to reasonable notice of each allegedly contumacious act. Id. Due process requires “full and complete notification” of the charges with a reasonable opportunity to meet them by defense or explanation. Id. In addition, criminal contempt requires proof beyond a reasonable doubt. Id.; see Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). In order to support a judgment of contempt, the underlying decree must set forth the terms of compliance in “clear, specific and unambiguous terms” so that the person charged with obeying the order will know exactly what duties and obligations are imposed on her. Chambers, 898 S.W.2d at 260; Houston, 92 S.W.3d at 877. The order of contempt may not be susceptible to more than one interpretation. Houston, 92 S.W.3d at 877.
“Due process requires a court, before imprisoning a person for violating an earlier order, to sign a written judgment or order of contempt and a written commitment order.” Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.1997) (per curiam) (citing Ex parte Barnett, 600 S.W.2d 252, 256 (Tex.1980)). The contempt order must clearly state in what respect the court's earlier order has been violated. Id.; see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969) (order or other means of notification “must state when, how, and by what means the defendant has been guilty of the alleged contempt”). Complementing this due process requirement, the Texas Family Code mandates that motions for enforcement and orders confining someone for violating a court's enforcement order must state “the manner of the respondent's noncompliance.” Tex. Fam.Code Ann. §§ 157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an order imposing incarceration for criminal contempt must contain findings identifying “the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt.” Id. § 157.166(b).
.Family Code section 157.166 provides:
(a) An enforcement order must include:
(1) in ordinary and concise language the provisions of the order for which enforcement was requested;
(2) the acts or omissions that are the subject of the order;
(3) the manner of the respondent's noncompliance; and
(4) the relief granted by the court.
(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt.
(c) If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement.
Tex. Fam.Code Ann. § 157.166 (Vernon 2008).
Standard of Review of Commitment Order
A commitment order is subject to collateral attack in a habeas corpus proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex.2005) (per curiam); seeTex. Gov't Code Ann. § 22.221(d) (granting appellate courts power to issue writs of habeas corpus). The purpose of the habeas corpus proceeding is not to determine the guilt or innocence of the relator; rather, the purpose is only to determine whether she has been unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). We presume that the contempt order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding). But we will issue the writ if the trial court's contempt order is void because it is beyond the court's power or the court did not afford the relator due process of law. Id. (citing Henry, 154 S.W.3d at 596).
The relator bears the burden of showing that she is entitled to relief. Id. In reviewing the record, we do not weigh the proof; rather, we determine only if the contempt order is void because, for example, the relator has been confined without a proper hearing or with no evidence of contempt to support her confinement. Chambers, 898 S.W.2d at 259–60.
Validity of Commitment Order
Here, the trial court's order committed Fountain to jail as punishment for past violations of the court's May 24, 2012 contempt order. Therefore, the commitment order is an order of criminal contempt. See Houston, 92 S.W.3d at 876 n. 2.
In her petition, Fountain points out numerous deficiencies and errors in the revocation motion and order that committed her to jail for contempt. She argues that two of the contempt violations are improper because the commitment order does not state the manner in which she failed to comply with the prior court orders, as required by due process and the Texas Family Code. SeeTex. Fam.Code Ann. § 157.166(a)(3); Shaklee, 939 S.W.2d at 145 (“The contempt order must clearly state in what respect the court's earlier order has been violated.”) (citation omitted). Fountain argues that the remaining contempt violation is improper because the trial court found that she violated a provision in the court's order that required compliance before the court even signed the order imposing that particular obligation. See Chambers, 898 S.W.2d at 262 (contemnor cannot be held in contempt of court for actions that predate when court's order is reduced to writing).
Because I find these arguments dispositive in determining that the commitment order is void, I would not reach Fountain's other issues.
I. Deficiencies in the Revocation Motion and Order
While the commitment order states that Fountain failed to comply with several provisions of prior court orders, the order does not state the manner of her noncompliance. The order states:
Violation 1. On June 18, 2012, respondent mailed to movant a notice that as of June 22, 2012, her residence and that of the child was changed to an address in Galveston County. This does not provide the required notice.
This violation was accompanied by a copy of the text of the October 18, 2011 agreed order that required the parties to inform each other of changes to the child's current address within sixty days or within five days of learning of a change of address if the party did not know of the change in enough time to meet the sixty-day requirement. For the other violation, the order states:
Violation 4. Respondent has interfered with movant's lunches with the child at school by violation of the order concerning posting information on Our Family Wizard. Movant had scheduled lunch with the child at school for June 6, 2012; respondent notified movant that the child would not be at school all that week. Respondent changed this schedule, and notified movant—at lunch time on June 8, 2012—that in fact he had been at school all that week, except for the Wednesday movant had scheduled. Respondent failed to post this change timely, presumably to prevent movant's being able to reschedule and have lunch with the child a different day of the week.
This language is quoted verbatim from Katcher's motion to revoke. Preceding the violation, the court's May 24, 2012 modification order is quoted, which required that each party promptly post:
b. knowledge that a child will not be attending a previously scheduled extracurricular activity—immediately, or as soon as practicable under the circumstances; but no less than eight hours; ...
f. any other changes—within thirty-six hours of the change.
These findings do not state the manner of Fountain's noncompliance. In the first violation, stating that Fountain had failed to report that she was moving with the child to Galveston County, the findings do not mention how Fountain failed to notify Katcher. Did the court find that Fountain had known when she was moving earlier, and so it found that she had failed to notify Katcher within the five-day time limit imposed by the October 18, 2011 order? Or did the court find that Fountain had known she was planning to move much earlier, and thus she failed to notify Katcher sixty days before the move as the October 18, 2011 order required?
In the other violation, noting that Fountain had failed to update the Our Family Wizard program on the week Katcher attempted to visit the child at lunch, the findings again fail to state how Fountain had violated the May 24, 2012 modification order. Did she violate the modification order when she reported to Katcher that the child would be gone from school all week but then two days later reported he had been in school some days that week? The earlier order did not require her never to change the child's itinerary, only to report changes to the Family Wizard program. So, did Fountain fail to update the program at all? Or did she fail to update the program within the thirty-six hour time limit? For both violations, on what date did Fountain fail to comply with the previous orders? See id. (requiring order to identify date of each violation found to constitute contempt). The face of the commitment order does not answer these questions.
The commitment order is insufficient because these findings of violations of prior orders are unclear. See Houston, 92 S.W.3d at 877. The contempt order must spell out exactly what duties and obligations are imposed and what the contemnor can do to purge the contempt. Id. (citing Ex parte Proctor, 398 S.W.2d 917, 918 (Tex.1966)). Generally, in the contempt context, the order or motion must be clear and unambiguous, which means the order or motion must be capable of only one reasonable interpretation. Chambers, 898 S.W.2d at 260. Although the revocation motion and the subsequent commitment order listed dates and described Fountain's actions, these documents are amenable to multiple reasonable interpretations as to how or even whether Fountain had violated the earlier orders. See id. (“A court order is insufficient to support a judgment of contempt only if its interpretation requires inferences or conclusions about which reasonable persons might differ.”) (emphasis in original) (citing Ex parte MacCallum, 807 S.W.2d 729, 730 (Tex.1991)). This is fatal to the commitment order because Fountain lacked the requisite notification of how to purge her contempt and how she might avoid violating court orders in the future. See Shaklee, 939 S.W.2d at 145 (invalidating contempt order for failing to specify when contemnor violated earlier orders); Ex parte Blasingame, 748 S.W.2d 444, 446–47 (Tex.1988) (invalidating contempt order punishing couple for taking action that they reasonably interpreted as not violating prior orders).
The majority states that Fountain “wrongly assumes that Katcher's motion to revoke and the trial court's revocation order must satisfy all of the procedural safeguards for an enforcement motion under [Family Code] chapter 157, as if a separate allegation, finding, and sentence for contempt of court were at issue.” Slip Op. at 12. The majority then cites several cases for the proposition that a motion to revoke the suspension of commitment actually “functions as a separate enforcement motion,” and is therefore subject to chapter 157's procedural requirements, including section 157.166's requirement that the contempt order specifically state the manner of the contemnor's noncompliance with a previous court order, when the trial court, in a revocation proceeding, makes additional contempt findings and imposes a different punishment. Slip Op. at 12–13. The majority concludes that these cases are distinguishable and that chapter 157's procedural requirements are inapplicable, because, here, when the trial court revoked the suspension of Fountain's commitment it “did not enter additional findings of contempt,” but instead it imposed the “original sentence” for the “original, admitted episodes of contempt.” Slip Op. at 13.
The majority justifies its holding by stating,
In other cases, these [procedural] safeguards in fact have been applied under circumstances when a party has been found in contempt and sentenced, the commitment has been suspended subject to compliance with specified conditions, and then in further proceedings to revoke the suspension of commitment a trial court made additional findings of contempt and imposed a different punishment. In such circumstances, with new allegations of contempt and enhanced sanctions, the motion to revoke does not merely invoke a previously rendered judgment of contempt, but the new motion instead functions as a separate enforcement motion for purposes of chapter 157.
Slip Op. at 12. The majority reasons that because Katcher “did not request and the trial court did not enter additional findings of contempt,” but “merely enforced the provisions of its own suspended commitment order,” “subchapter D of chapter 157 and its detailed procedures applicable to an original enforcement hearing” do not apply. Slip op. at 13. The majority cites no authority for its holding. Rather, it refuses to follow established authority on allegedly distinguishable factual grounds. I, therefore, take the majority to be making its own law without authority and in conflict with established law.
I disagree that the procedural safeguards applicable to enforcement motions and orders are not applicable here. And I disagree that there are material factual distinctions between this case and the prior cases in which the law has been established.
The original May 24, 2012 contempt order found Fountain in contempt for violating the provision of the October 18, 2011 agreed order requiring her to execute all necessary releases to permit Katcher to obtain health-care information concerning the child. The court ordered Fountain confined for sixty days in the Harris County Jail and ordered her to pay $5,000 to Katcher in attorney's fees, but the court then suspended the commitment pursuant to Fountain's compliance with the October 18, 2011 agreed order and the May 24, 2012 modification order. In the commitment order, which revoked the suspension of Fountain's commitment, the court ordered that Fountain be confined for sixty days in the Harris County Jail, that Fountain pay $5,000 to Katcher, as ordered in the May 24, 2012 contempt order, and that Fountain pay, “in addition to the attorney's fees and costs assessed in the order suspending commitment signed on May 24, 2012,” an additional $4,379 in attorney's fees and costs to Katcher's attorney.
The court also found that Fountain violated the October 18, 2011 agreed order by not “provid[ing] the required notice” that she and the child were moving to Galveston County and the May 24, 2012 modification order by failing to notify the child's school of Katcher's access and by failing to timely update Our Family Wizard. The commitment order thus identified additional violations of ongoing obligations without specifying how Fountain failed to comply with these obligations and imposed a greater punishment than the original contempt order. See Houston, 92 S.W.3d at 877 (contempt order must spell out duties and obligations imposed and what contemnor can do to purge contempt). Thus, the commitment order was not clear and unambiguous, as required for a holding of contempt. See Chambers, 898 S.W.2d at 260.
I would conclude that the commitment order is functionally equivalent to an original enforcement order, and, therefore, Family Code chapter 157's procedural safeguards, including section 157.166(a)'s requirement that the enforcement order state the manner of the contemnor's noncompliance, apply equally to this proceeding. See Ex parte Durham, 708 S.W.2d 536, 537–38 (Tex.App.-Dallas 1986, orig. proceeding) (“The purpose of this commitment order is to enforce the punishment provisions imposed by the original order holding relator in contempt. Consequently, we hold that this commitment order is an ‘enforcement order’ under [the predecessor to section 157.166].”); see also Houston, 92 S.W.3d at 876 (holding that civil contempt proceedings are quasi-criminal, entitling contemnor to procedural due process “throughout the proceedings”). I would hold that procedural statutory and constitutional due process safeguards were violated in this case. SeeTex. Fam.Code Ann. § 157.166(a)(3); Shaklee, 939 S.W.2d at 145; Houston, 92 S.W.3d at 875–77. Therefore, the commitment order is void. See Houston, 92 S.W.3d at 875–77.
II. Confinement for Violating Court's Command Before Court Issued Order Imposing Obligation
Even if the trial court had clearly stated the manner of Fountain's noncompliance in the commitment order, the order would still be void for finding Fountain in contempt of court for violating the court's May 24, 2012 order on a date predating the date on which the court actually signed that order. See Chambers, 898 S.W.2d at 262 (“A contemnor cannot be held in constructive contempt of court for actions taken prior to the time that the court's order is reduced to writing.”). It is the written order, signed by the court, that evinces a party's rights and duties, not oral admonitions at the hearing. In re Sellers, 982 S.W.2d 85, 87 (Tex.App.-Houston [1st Dist.] 1998, orig. proceeding) (citing Ex parte Price, 741 S.W.2d 366, 367 (Tex.1987)).
The second violation in the contempt order was for Fountain's failure to inform the child's school about Katcher's rights of access to the child by May 15, 2012. The underlying order giving rise to this obligation, however, was signed on May 24, 2012, nine days after the date on which Fountain allegedly violated the order. Under Texas law, this invalidates the commitment order. See Chambers, 898 S.W.2d at 262; Sellers, 982 S.W.2d at 87; see also Dunn v. Street, 938 S.W.2d 33, 35 n. 3 (Tex.1997) (per curiam) (voiding contempt judgment because contemnor “did not violate a written order of the trial court”).
The trial court assessed a punishment of sixty days' confinement and required the payment of attorney's fees for all of the contumacious acts it found. This means that even if only one of the violation findings was invalid, the entire order would be void. Ex parte Davila, 718 S.W.2d 281, 282 (Tex.1986) (per curiam) (“If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void”); Ex parte Sealy, 870 S.W.2d 663, 667 (Tex.App.-Houston [1st Dist.] 1994, orig. proceeding) (holding same). The commitment of a person to jail on a void order violates constitutional due process. See Gordon, 584 S.W.2d at 688 (“Where the judgment ordering confinement is ‘void,’ the confinement is illegal and the relator is entitled to discharge.”); In re Alexander, 243 S.W.3d 822, 827 (Tex.App.-San Antonio 2007, orig. proceeding) (“A writ of habeas corpus will issue when the relator has not been afforded due process, or when the order requiring confinement is void.”).
Because none of the three acts in the commitment order will support a finding of contempt, I would not reach Fountain's other issues.
Conclusion
I would hold that the trial court abused its discretion in revoking its order suspending Fountain's commitment to jail and that the commitment order is void. Accordingly, I would grant the petition for writ of habeas corpus, and I would order Fountain released from her bond and discharged.