Ex parte Brister

• Decision Date: 19 December 1990
• Docket Number: No. C-9567,C-9567
• Citation: 801 S.W.2d 833
• Parties: Ex parte Deborah BRISTER, Relator.
• Court: Texas Supreme Court

Page 833

801 S.W.2d 833

Ex parte Deborah BRISTER, Relator.

No. C-9567.

Supreme Court of Texas.

Dec. 19, 1990.

James M. Whitten, Sinton, for relator.

Mark H. Giles, Corpus Christi, for respondent.

OPINION

RAY, Justice.

In this original habeas corpus proceeding, the trial court held relator, the mother and managing conservator of a minor child, in contempt for her failure to deliver possession of the child to the father for a "period of possession" unilaterally designated by the father under the parties' divorce decree. We hold the provisions of the divorce decree relator was found to have violated are not sufficiently clear and unambiguous to be enforced by contempt. We therefore hold the judgment of contempt is unenforceable and order relator discharged.

Deborah Brister and David Eugene Brister were divorced by a decree which appointed Deborah managing conservator and David possessory conservator of their minor child, Ryan. In relevant part the decree provides:

IT IS ORDERED AND DECREED that [father] shall have possession of the child at all times as the parties may mutually agree, and failing mutual agreement, as follows:

Weekends. During periods each month, with the period of possession to begin at 6:00 p.m. on the first and third Fridays of each month and to end at 6:00 p.m. on the Sunday immediately following. (subject to modification as set out herein) (Emphasis added.) The decree allows David to modify this visitation schedule to accommodate his working changing shifts, as follows:

IT IS ORDERED that the standard visitation schedule set out hereinabove shall be modified according to [father's] work schedule by [father's] giving to [mother] notice of not less than one week prior to the end of the preceding month the following month's work schedule indicating work days and days off, notifying [mother] of visitations on days off beginning at 6:00 p.m. of one day through 6:00 p.m. of the second day following, said days off not to exceed two times per month. The altered standard visitation shall continue until [father] no longer works shift work or the minor child begins attending school, at which time standard visitation shall be in operation. In the event [father] is still working shift work at that time, IT IS FURTHER ORDERED that visitation will be scheduled on his days off that occur on weekends so as not to interfere with the child's school arrangements."

The only portion of the decree ordering Deborah to perform any action regarding visitation provides:

IT IS ORDERED AND DECREED that DEBORAH BRISTER, Managing Conservator, shall surrender the child to DAVID EUGENE BRISTER, Possessory Conservator, at the beginning of each period of possession at 109 Presidio, Portland, Texas.

David's very first requests for visitation resulted in this dispute. In his motion to enforce the decree, David alleged that he modified the prescribed visitation schedule by giving Deborah his work schedule for the ensuing three months just three days after the decree was signed. That "work schedule" consisted of three months of a calendar with various dates marked "ON CALL", "NIGHTS" or "DAYS". At the beginning of the July month is the hand-written notation, "X indicates visitation rights to Ryan beginning at 6:00 p.m. ending 6:00 p.m. second day following". Some "on-call" and otherwise unmarked dates were also marked with a handwritten "X." David alleged that on the first date marked with an "X" he called and went by Deborah's home, but no one was there. He further alleged that on the next two dates marked with an "X" he either called or went by Deborah's home, but she refused to allow him to see Ryan. The trial court found that on each of the latter two occasions Deborah could have delivered possession to David but refused to do so, in violation of the decree. The trial court held Deborah in contempt and assessed punishment at a $500.00 fine for each of the two offenses and confinement in the county jail "for a total period of 30 days." ¹ The trial court subsequently probated Deborah's punishment conditioned upon her payment of attorney fees and monthly statutory supervisory fees, participation in an outpatient family counseling program, and submission to 60 days' house arrest and electronic monitoring. ²

To be enforceable by contempt a judgment must set out the terms for compliance in clear and unambiguous terms. See, e.g., Ex parte Reese, 701 S.W.2d 840 (Tex.1986); Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). The judgment must also clearly order the party to perform the required acts. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex.1979). The provisions of the divorce decree enforced here fail to meet these standards. The contempt order in this case enforces, not the specific requirements of the court, but the cryptic instructions of a party given with the court's permission but without the certainty of detailed provisions of a decree. Consequently, the contempt order must be set aside. See Ex parte Gordon, 584 S.W.2d 686 (Tex.1979).

We are not unmindful of the difficulties trial judges face in setting visitation to accommodate parties' fluctuating work schedules. We do not criticize the trial judge for ordering visitation as he did. To allow such a vague and cryptic extrajudicial "modification" of visitation to be enforced by contempt for failure to deliver possession, however, with the very serious consequences of punitive fine and confinement for contempt, is to give one former spouse a power over the other that due process will not permit. In the context of divorce, one former spouse cannot be empowered to impose upon the other unilaterally by ambiguous calendar notations the conditions of delivering possession for visitation, enforceable by fine and imprisonment. Personal liberty is too precious for a court to delegate to a party the giving of the instructions, however ambiguous, to avoid its loss.

Although Deborah has not been jailed, the restraint on Deborah's liberty is sufficient to entitle her to habeas corpus review. See Ex parte Williams, 690 S.W.2d 243 (Tex.1985); see also Basaldua v. State, 558 S.W.2d 2 (Tex.Crim.App.1977). Because the trial court's judgment of contempt conflicts with this Court's opinion in Slavin, we grant the writ of habeas corpus and order relator discharged.

COOK, J., concurs with an opinion joined by HIGHTOWER, J.

GONZALEZ, J., dissents with an opinion joined by PHILLIPS, C.J., and SPEARS, J.

COOK, Justice, concurring.

I concur in the opinion of this court, but would also hold that the motion for contempt filed by David Brister failed to give specific notice of which provision of the divorce decree Deborah Brister allegedly violated. The motion quoted and specifically pointed out the "periods of possession" portions of the decree (including the "modification" provision), but failed to quote or otherwise specifically identify the portion of the decree directing Deborah to surrender the child.

Civil contempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings. Ex parte Johnson, 654 S.W.2d 415, 420 (Tex.1983). Among these procedural due process rights is the right to reasonable notice of each alleged contumacious act. The due process requirement is one of "full and complete notification" of the charges alleged with a reasonable opportunity to meet the charges by defense or explanation. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979); see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969). A contempt judgment rendered without such adequate notification is void. Ex parte Gordon, 584 S.W.2d at 688.

The legislature, with due regard to the due process rights of parents, enacted a section in the Texas Family Code setting forth the requirements of a motion for contempt of certain family law orders, judgments and decrees. The version of the Family Code provision in effect when David filed his motion ¹ stated as follows:

The motion shall set out specifically and with particularity the provisions of the final order, decree, or judgment sought to be enforced and, in separate counts, the date, place, and, if applicable, the time of each occasion upon which the respondent has not complied with the order, the manner of the noncompliance, and the relief sought by the movant.

Act of July 20, 1987, ch. 73, § 5, 1987 Tex.Laws, 1st Spec.Sess. 225, 227, repealed by Act of July 16, 1989, ch. 25, § 17, 1989 Tex.Laws, 1st Spec.Sess. 74, 80-82.

This version of the statute and its predecessors has been held to require a very specific identification in the motion for contempt of the particular provisions of the order alleged to have been violated, as a statutorily set requirement for reasonable notice and procedural due process. See e.g., Ex parte Conoly, 732 S.W.2d 695, 698 (Tex.App.--Dallas 1987, orig. proceeding); Ex parte Durham, 708 S.W.2d 536, 537 (Tex.App.--Dallas 1986, orig. proceeding); Ex parte Deckert, 559 S.W.2d 847, 849 (Tex.Civ.App.--Houston [1st Dist.] 1977, orig. proceeding).

The contempt judgment in the instant case expressly recites it was based on two instances of "failing to surrender the minor child" by Deborah. David argues that his motion sufficiently identified the provision of the order to surrender the child in its paragraph 6, which states:

6. On two or more occasions, Respondent has failed to comply with the order of this Court by failing to surrender the minor child to Movant as ordered. Movant requests that the Court order a bond or security for compliance with the Court's order granting possession or access to the child.

This paragraph, taken with the allegations in other paragraphs about Deborah's conduct, may be sufficient to allege the manner of noncompliance, but it is not sufficient to point out the portion of the decree directing Deborah to surrender the child. I would hold that the contempt motion was insufficient because it failed to identify the precise provision of the order...