Ex parte Karr

• Decision Date: 28 November 1983
• Docket Number: Nos. 07-83-0290-C,07-83-0301-CV,s. 07-83-0290-C
• Citation: 663 S.W.2d 534
• Parties: Ex parte Nancy Jane KARR, Relator.
• Court: Texas Court of Appeals

Page 534

663 S.W.2d 534

Ex parte Nancy Jane KARR, Relator.

Nos. 07-83-0290-CV, 07-83-0301-CV.

Court of Appeals of Texas Amarillo.

Nov. 28, 1983.

Art B. Lara, Jr., Law Offices of Art B. Lara, Jr., Amarillo, for relator.

Thomas V. Priolo, Miller, Priolo & Herring, Amarillo, for respondent.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

REYNOLDS, Chief Justice.

In an original habeas corpus proceeding, our Cause No. 07-83-0290-CV, relator Nancy Jane Karr seeks her release from an alleged illegal confinement in jail by virtue of a written order of commitment for contempt of court. The commitment issued upon the trial court's adjudication of relator's contempt for refusing to obey the court's prior order decreeing access by her former husband, Faron Ray Jordan, to their child on designated weekends. We provided for relator's release on proper bond pending our determination of the validity of the judgment ordering her confined.

Shortly before the scheduled accelerated submission of the habeas corpus matter, relator filed, as another original proceeding in our Cause No. 07-83-0301-CV, her application for the suspension of the portion of the court's contempt judgment wherein the court ordered that respondent Faron Ray Jordan shall have access to the child from 7 November to 19 December 1983 to compensate for the visitation relator denied him. The premise for the suspension application is that, although an appeal has been taken in another cause from the extended access portion of the contempt judgment, the appeal will become moot unless the suspension is granted, because the period of access will expire before the appeal can be submitted and determined.

Submission of both original proceedings was had at the same time. On the rationale hereafter expressed, we conclude that: the habeas corpus relief requested in our Cause No. 07-82-0290-CV is denied; the suspension order requested in our Cause No. 07-83-0301-CV is granted.

No. 07-82-0290-CV--Habeas Corpus

By its prior 7 December 1981 modification order, the trial court decreed, inter alia, that respondent Faron Ray Jordan shall have possession of the child

On the first and third weekends of each month, from 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday, commencing on December 18, 1981.

Respondent moved the court to hold relator Nancy Jane Karr, formerly Nancy Jane Jordan, in contempt for disobeying the court's order by failing to surrender the child to him on eight designated weekends between the period 18 June 1982 and 4 September 1983.

Following a hearing attended by relator, respondent and their respective counsel, the court found, on the evidence adduced, that relator had willfully and contemptuously disobeyed the court's order by failing to surrender the child to respondent on six separate occasions during the 18 June 1982 to 4 September 1983 period. The court, adjudging relator in contempt of court for each of the six separate violations, ordered that she be punished by confinement in the county jail of Potter County for a period of fifteen (15) days on each contemptuous act, but that each period of confinement shall run and be satisfied concurrently.

The court further found that a reasonable fee to pay relator's attorney is $750, which was assessed as court costs. The court then further ordered that relator be confined in jail until she has paid the $750 fee, together with $89 costs of the proceeding.

In her habeas corpus proceeding, relator makes a five-pronged attack on the judgment of contempt. In essence, she contends that the judgment is void because the order she was found to have violated is so vague unintelligible and ambiguous as to be void; there is no evidence and factually insufficient evidence that she willfully, intentionally, flagrantly and contemptuously failed to surrender the child to respondent; and the court had no authority to confine her until she paid the assessed attorney's fees and court costs.

An original habeas corpus proceeding is a collateral attack upon the contempt judgment; therefore, the relator, to be accorded relief, must convince the appellate court that the order is void. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976). Relator submits that the judgment is void because the underlying access order lacks the certainty required by Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967). The uncertainty obtains, she argues, because the order does not contain the specifics of delivery of possession of the child, such as the place to surrender the child, what advance notice before, or waiting time after, 6:00 p.m. is required, and the definition of a "weekend" so one can determine which are the first and third weekends of each month.

Indisputably, for one to be held in contempt for disobeying a court order, the order must be clear, specific and unambiguous enough that one will readily know what duties or obligations are imposed upon him or her. Ex parte Slavin, supra. Yet, the order is not required to be concerned with duties or obligations envisioned in the abstract, particularly in decreeing child access rights and privileges, for it may take longer to write the order, which might thereby become unintelligible and self-destructive, than it would take to try the cause. Accord, San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956). In this connection, it long has been the law that one may not place a questionable or technical construction upon an order and then act upon that construction with impunity. Edrington v. Pridham, 65 Tex. 612, 617 (1886).

When the contested order is tested by these principles, we find that it is definite in clearly specifying the rights and privileges of access to the child. The order is clear that respondent is to have access to the child at 6:00 p.m. on the first Friday and on the third Friday in each month, with each access period lasting until 6:00 p.m. on the following Sunday. Indeed, the parents observed this scheduled access without question until a difficulty, unrelated to the dates or time of access, arose more than six months after the order was signed. Relator's first two contentions that the order is void are overruled.

Relator's next two contentions challenge the evidential support for the court's findings of the six separate contemptuous violations of the access order. She says that the evidence on which the court found she committed constructive criminal contempt fails to meet the Ex parte Cragg, 133 Tex.Cr.R. 118, 109 S.W.2d 479, 481 (1937), standard of proof beyond a reasonable doubt. However, since the contempt judgment before us was rendered because of the violation of an order in a civil cause, our original habeas corpus jurisdiction is concurrent with that of the Supreme Court. Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon Supp.1982-1983); Ex parte Hosken, 480 S.W.2d 18, 23-24 (Tex.Civ.App.--Beaumont 1972, no writ). Thus, with respect to relator's legal and factual insufficiency contentions, we do not have jurisdiction to weigh the evidence adduced in the contempt proceeding; we may only determine if the court's contempt...