Opinion
No. 06-17-00070-CV
06-16-2017
Original Habeas Proceeding Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Scott Alan Copeland has filed a petition asking this Court to issue a writ of habeas corpus and release him from the Fannin County Jail. On May 11, 2017, the trial court heard evidence and argument of counsel relative to the petition of Dianne Jeanette Copeland for enforcement by contempt of court of the property division and child support provisions of the parties' October 16, 2016, final decree of divorce. On May 18, 2017, the trial court entered an order holding Copeland in both criminal and civil contempt of court. Copeland has filed a petition for a writ of habeas corpus, together with a request to set bond pending consideration of the habeas petition. We deny both requests.
I. Background
On February 13, 2017, Dianne filed a motion for enforcement of the final divorce decree. At the hearing on May 11, Dianne's counsel represented to the trial court that the parties had "entered into an agreed judgment on an order for enforcement that [would] hold Mr. Copeland in contempt." Dianne's counsel then outlined the terms of the agreement on the record. Copeland's counsel confirmed that that was the parties' agreement and stated that nothing more needed to be addressed. Copeland told the trial court that that was his understanding of the agreement as well.
The parties evidently had worked out the terms of the order prior to the hearing. Counsel for Dianne appeared with the order and stated that it had been presented to opposing counsel. At the hearing, counsel presented the order to the trial court for entry.
The hearing record further reflects that Copeland was to present himself to the Fannin County Jail on May 18 at 5:00 p.m. if he had failed to comply with the agreement by that date and time. The trial court stated, "[T]here will be a commitment order, as well, if these things are not met. I anticipate that's not what he wants and that he will comply with these requirements." The trial court then issued a written order, as presented by counsel, in accordance with the parties' agreement.
The trial court included language in the order stating, "Respondent shall bring a copy of this order with himself when reporting to the Fannin County Jail." The order included a number of handwritten additions and deletions as well. More importantly, it erroneously stated that Copeland would be confined for contempt in the Collin County Jail. For these reasons, Dianne filed a motion for a nunc pro tunc order of enforcement by contempt on May 16, 2017, and on May 19, the trial court entered a nunc pro tunc order of enforcement by contempt.
The nunc pro tunc order incorporated the handwritten corrections and deletions in the original order and indicated that Copeland would be committed to the Fannin County Jail. According to Copeland, he was arrested on June 7, 2017, in Collin County and was initially placed in the Collin County Jail. He was subsequently transferred to the Fannin County Jail, where he remains without bond.
II. Standard of Review
"An original habeas corpus proceeding is a collateral attack on a contempt judgment." Ex parte Littleton, 97 S.W.3d 840, 841 (Tex. App.—Texarkana 2003, orig. proceeding). "The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether he or she was afforded due process of law or if the order of contempt is void." Id. We must presume that the order holding Copeland in contempt and committing him to the Fannin County Jail is valid unless he has discharged his burden of proving that the order is void. See In re Decker, No. 06-17-00035-CV, 2017 WL 1290854, at *3 (Tex. App.—Texarkana Apr. 6, 2017, orig. proceeding) (mem. op.); In re Byrom, 316 S.W.3d 787, 791 (Tex. App.—Tyler 2010, orig. proceeding); In re Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).
III. Analysis
Copeland initially contends that the order is void because the underlying motion for enforcement failed to comply with the mandatory pleading requirements set forth in Section 157.002(a)(1) of the Texas Family Code. That Section states, "A motion for enforcement must, in ordinary and concise language[,] . . . identify the provision of the order allegedly violated and sought to be enforced." TEX. FAM. CODE ANN. § 157.002(a)(1) (West 2014). Here, the motion for enforcement identified forty-five instances of violations of the final decree. The trial court, however, found seventy-one violations of the decree.
Copeland contends that because the additional violations found by the trial court were not listed in the motion for enforcement, the contempt order is void. In support of that proposition, Copeland relies on In re Mann, 162 S.W.3d 429, 433-34 (Tex. App.—Fort Worth 2005, orig. proceeding). In that case, Mann was held in contempt of court for violating an order other than the one identified in the motion to enforce. Id. at 432. The court recognized that "[a]mong the due process rights accorded an alleged contemnor is the right to reasonable notice of each alleged contumacious act" and concluded that the contempt order was invalid because proper notice was not given. Id. (citing Ex parte Barlow, 899 S.W.2d 791, 797 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding)).
Here, however, the parties agreed to the terms of the contempt order. Counsel for Dianne stated on the record, in open court, "Mr. Copeland will be held in contempt on 71 separate violations." Both Copeland and his counsel agreed to the terms of the order as stated by Dianne's counsel. In light of his agreement, we cannot conclude that Copeland did not receive proper notice of the additional violations.
The trial court's order found Copeland to be in contempt of court for failing to deliver certain enumerated items of personal property to Dianne as required by the final decree. In connection with this finding, Copeland was directed to either deliver the property by a certain date and time to Dianne's counsel, or to pay a sum certain for each item he failed to return by the stated date and time. Copeland contends that this language is not sufficiently specific to be enforceable by contempt. We disagree. The language required Copeland to fulfill his obligation by choosing one of two options—return the listed property or pay a specific sum of money if the property was not returned. There is nothing unclear about this language, and it does not render the order void.
Finally, Copeland contends that because he was not personally served with the motion for judgment nunc pro tunc and the judgment nunc pro tunc, the order is void. He bases this contention on caselaw that requires notice of the contempt allegations on the alleged contemnor. See In re Rowe, 113 S.W.3d 749, 752 (Tex. App.—Austin 2003, orig. proceeding) (among procedural due process rights is right to reasonable notice of each alleged contemptuous act; contemnor must be given reasonable opportunity to meet charges by defense or explanation). Here, however, Copeland was provided full and complete notification of the conduct at issue. He was obviously served with the motion for enforcement, was represented by counsel at the hearing, and agreed to an order for enforcement that would hold him in contempt. The nunc pro tunc order merely corrected clerical errors to make the written order of enforcement conform to the terms of the original enforcement order that he agreed to and that was entered against him in open court at the hearing. The nunc pro tunc order, therefore, did not include substantive revisions. This complaint is without merit.
IV. Conclusion
We deny Copeland's petition for habeas corpus relief.
Ralph K. Burgess
Justice Date Submitted: June 15, 2017
Date Decided: June 16, 2017 Do Not Publish