Ex parte Sealy

• Decision Date: 01 February 1994
• Docket Number: No. 01-93-01110-CV,01-93-01110-CV
• Citation: 870 S.W.2d 663
• Parties: Ex Parte Virginia SEALY, Relator. (1st Dist.)
• Court: Texas Court of Appeals

Page 663

870 S.W.2d 663

Ex Parte Virginia SEALY, Relator.

No. 01-93-01110-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 1, 1994.

Gina Fantasia, Iris Hefter Robinson, Hirsch, Robinson, Sheiness & Glover, P.C., Houston, for appellant.

Bruce S. Kessler, Zimmerman, Flaum & Axelrad, P.C., Houston, for appellees.

Before COHEN, HEDGES and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

Relator, Virginia Sealy (formerly Virginia Sealy Caplan), asks this Court to find a judgment and probation order signed by Judge Daggett, ¹ void. The order holds her in contempt for violating two provisions of the final decree of divorce: denying Terrill Mark Caplan (Caplan), her former husband, telephone access to their children, and refusing to permit him to exercise his child visitation rights on October 21, 1993. Sealy also asks this Court to refund attorney's fees and court costs she paid in accordance with the judgment and probation order. ²

In the judgment and probation order, Judge Daggett found relator in contempt and assessed punishment at 24-days confinement in the Harris County jail and a fine of $800. The trial court probated the jail time and fine for six months, provided relator complied with the following terms: (1) paid her former husband's attorney's fees of $980 by December 1, 1993; (2) paid court costs of $63 by December 1, 1993; and (3) complied with the access and visitation provisions of the final decree of divorce.

The divorce decree

Sealy and Caplan divorced on August 30, 1993. They are the parents of two children: Hannah, aged four years and two and one-half months, and Richard, aged two years and seven months at the time of the November 29, 1993, hearing. Sealy and the children live in Lafayette, Louisiana, while Caplan resides in Houston, Texas.

Pages five through 13 of the divorce decree deal with the possession of the children. The first part of the possession order (pages five to the last five lines on page eight) provides for possession from the signing of the decree until September 1, 1995. Language in this section identifies this section as "this Possession Order." It sets out the weekends, holidays, birthdays, and spring and summer periods when Caplan and Sealy, respectively, will each have the children. The possession order does not contain any provisions regarding telephone access or other general terms and conditions.

At the bottom of page eight begins a section entitled "Standard Possession Order." This section deals with the provisions for possession and access that take effect on September 1, 1995. Like the earlier possession section, the standard possession order provides for the weekends, holidays, birthdays, and spring and summer periods when Caplan and Sealy, respectively, will each have the children.

The standard possession order section also contains general terms and conditions that provide Sealy must surrender the children at their home (or other mutually agreed location) to Caplan; that Caplan must return the children to their home (or other mutually agreed location); that each parent must pack the appropriate clothing, personal effects, and medication at the start and end of a period of possession; and that a parent must notify the other if unable to exercise a period of possession. Finally, the following paragraph appears:

6. It is ORDERED AND DECREED that when the children are with either conservator, the other conservator shall be permitted the right to telephone the children two times per week and speak with the children for a reasonable period of time during each call, provided that the length of each call shall not be unreasonable or abusive....

By the clear terms of the divorce decree, these telephone access provisions of the standard possession order do not take effect until September 1, 1995.

On October 19, 1993, Caplan filed a motion for enforcement and order to appear against Sealy, alleging that she had violated the telephone access provisions of the divorce decree eight times in September and October 1993 and, in an amended motion, the visitation provisions of the divorce decree on October 21, 1993. In the judgment and probation order, Judge Daggett found that Sealy had violated the telephone access provisions seven times. He also found she had violated the visitation provisions of the divorce decree on October 21, 1993.

Telephone access

As a general rule, the validity of a contempt judgment can only be attacked collaterally by habeas corpus. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960). In such a review, the appellate court is limited to the determination of whether the commitment order is void. Doss v. Doss, 521 S.W.2d 709, 711 (Tex.App.--Houston [14th Dist.] 1975, orig. proceeding). Although it is not necessary for an applicant for a writ of habeas corpus to be actually confined in jail, the applicant must suffer some restraint to justify the issuance of the writ. Ex parte Calhoun, 127 Tex. 54, 91 S.W.2d 1047, 1048 (Tex.1936); see Deramus, 333 S.W.2d at 832 (because the relator was not under restraint, an application for writ of habeas corpus would be premature); TEX.R.APP.P. 120(b)(6) (petition for writ of habeas corpus must be accompanied by proof of restraint of relator). A mere judgment of contempt will not justify the granting of a writ of habeas corpus. Calhoun, 91 S.W.2d at 1048; Ex parte Crawford, 506 S.W.2d 920, 921 (Tex.App.--Tyler 1974, orig. proceeding).

Sealy argues she is entitled to relief by habeas because her probation constitutes a sufficient restraint on her liberty, citing Ex parte Duncan, 796 S.W.2d 562 (Tex.App.--Houston [1st Dist.] 1990, orig. proceeding), and Ex parte Conner, 746 S.W.2d 527 (Tex.App.--Beaumont 1988, orig. proceeding). Caplan responds that Sealy has not been placed in jail and is under no restraint.

We agree with Caplan that Sealy is under no restraint; therefore, habeas corpus relief may not be granted. We have held that probation was a sufficient restraint on liberty to permit relief by writ of habeas corpus where the terms and conditions of probation required the relator to report to a probation officer at least once a month and prohibited him from traveling outside Harris County without permission from the trial court. Duncan, 796 S.W.2d at 564. Sealy is not subject to any such probation terms. The Beaumont Court of Appeals has held that a contempt order granting probation under TEX.FAM.CODE ANN. § 14.40(e) (Vernon 1986) constitutes a sufficient "restraint" on relator's liberty to warrant granting a writ of habeas corpus. Conner, 746 S.W.2d at 527. Sealy's probation is not under section 14.40(e), which authorizes a trial court to probate commitment when an obligor has been found in contempt for failing or refusing to pay child support.

Thus, we are unable to grant relief to Sealy by way of a writ of habeas corpus. Neither are we able to grant relief to Sealy under her application for writ of mandamus. Even though there is considerable logic to Sealy's challenge to the contempt order by either habeas or mandamus, the Supreme Court has held that a...