In re B.G.B

• Decision Date: 31 May 2019
• Docket Number: NO. 12-18-00213-CV,12-18-00213-CV
• Citation: 580 S.W.3d 310
• Parties: IN RE: B.G.B, Jr., Relator
• Court: Texas Court of Appeals

580 S.W.3d 310

IN RE: B.G.B, Jr., Relator

NO. 12-18-00213-CV

Court of Appeals of Texas, Tyler.

Opinion delivered May 31, 2019

Cynthia S. Kent, Tyler, Civil–Amicus Curiae for B.T.B.

Robin Scott, for Relator Bobby G. Bennett, Junior.

Sheriff Larry Smith, pro se.

Howard W. Britain, Tyler, for Real party in interest Laura Merryman Bennett.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

Brian Hoyle, Justice

Relator B.G.B., Jr. filed this petition for writ of habeas corpus, contending in five issues that Respondent's order for contempt is void. We deny the petition.¹

BACKGROUND

The underlying suit is a divorce proceeding between B.G.B., Jr. and L.M.B. The parties are the parents of two children, B.T.B. and B.T.B.2.² The case proceeded to a seven day jury trial, followed by a four day bench trial. At the conclusion of the jury trial, the jury found that the mother, L.M.B., should be appointed sole managing conservator of the children. On February 16, 2017, the Respondent entered a final decree of divorce ("Final Decree"), granting the parties a divorce, appointing L.M.B. as sole managing conservator, and appointing B.G.B., Jr. as possessory conservator of the children. L.M.B. was granted the exclusive right to designate the primary residence of the children. B.G.B., Jr. was granted "completely supervised" possession of the children one weekend per month, and was ordered to remain in the immediate presence of a supervisor at all times while he was with the children. Further, the Respondent ordered that B.G.B., Jr. be permanently enjoined from

(1) Passing any notes or written communication to either child or the children unless it is through the children's visitation supervisor, [ ], his agents or any other agreed-upon supervisor, first, with a copy for [L.M.B.], to be provided to her by [B.G.B., Jr.] in advance by way of Our Family Wizard.³

(2) Engaging in any manner whatsoever in any electronic, video or audio communication with the children, [B.T.B. and B.T.B.2], other than during his periods of possession and under the supervision of [the visitation supervisor], his agents or any other agreed-upon supervisor.

(3) In the event either [B.T.B. or B.T.B.2] attempts to or does initiate any kind of verbal or other form of communication with [B.G.B., Jr.] at any time other than during his periods of supervised possession, [B.G.B., Jr.] is enjoined from responding to such communication and is hereby ORDERED to notify [L.M.B.] via Our Family Wizard within 24 hours of receiving such communication from a child of the fact that he received such communication, and the manner of same.

Respondent held six days' worth of hearings from November 16, 2017 to April 10, 2018,⁴ on B.G.B., Jr.'s and L.M.B.'s applications for temporary orders. On April 9, 2018, L.M.G. filed a first amended motion for enforcement of possession or access against B.G.B., Jr., arguing that he violated the divorce decree's permanent injunction. The motion listed the violations committed by B.G.B., Jr. as follows:

(1) 155 telephone calls placed by B.T.B.2 to B.G.B., Jr. and/or from B.G.B., Jr. to B.T.B.2;

(2) 144 telephone calls placed by B.T.B.2 to B.G.B., Jr. who failed to advise L.M.B. by Our Family Wizard within twenty-four hours of receiving the communication initiated by B.T.B.2;

(3) Nineteen emails that B.G.B., Jr. sent, received, and responded to with B.T.B.2; and

(4) Five emails that B.T.B.2 sent to B.G.B., Jr. who failed to advise L.M.B. by Our Family Wizard within twenty-four hours of receiving the communication initiated by B.T.B.2.

On July 9, 2018, Respondent held a hearing on L.M.B.'s first amended motion for enforcement. At the conclusion of the hearing, Respondent found that B.G.B., Jr. violated the divorce decree's injunction on "every single allegation" and held him in contempt of court. Respondent entered an order holding B.G.B., Jr. in contempt, found that he violated the divorce decree's permanent injunction, found that he committed 325 violations of the permanent injunction, assessed his punishment at confinement for a period of 140 days for each violation, and found that each period of confinement assessed be run, and satisfied, concurrently. This proceeding followed, and on August 2, 2018, this court granted B.G.B., Jr.'s request for release on bond pending final resolution of this proceeding.

AVAILABILITY OF HABEAS CORPUS

Habeas corpus is available to review a contempt order entered by a lower court confining a contemnor.

Ex parte Gordon , 584 S.W.2d 686, 687–88 (Tex. 1979) (orig. proceeding). An original habeas proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder , 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding); In re Ragland , 973 S.W.2d 769, 771 (Tex. App.—Tyler 1998, orig. proceeding). Its purpose is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon , 584 S.W.2d at 688.

A court will issue a writ of habeas corpus if the order underlying the contempt is void or if the contempt order itself is void. See Ex parte Shaffer , 649 S.W.2d 300, 301–02 (Tex. 1983) (orig. proceeding); Ex parte Gordon , 584 S.W.2d at 688. The relator bears the burden of showing that the contempt order is void and not merely voidable. In re Munks , 263 S.W.3d 270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). Until the relator discharges his burden, the contempt order is presumed valid. In re Parr , 199 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). A contempt order is void if it deprives the relator of liberty without due process of law or if it exceeded the power of the court to issue. See In re Coppock , 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding).

APPLICABLE LAW

There are two forms of contempt: civil and criminal. A criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a party for "some completed act which affronted the dignity and authority of the court." Ex parte Johns , 807 S.W.2d 768, 771 (Tex. App.—Dallas 1991, orig. proceeding) (quoting Ex parte Werblud , 536 S.W.2d 542, 545 (Tex. 1976) ) (orig. proc.). Criminal contempt orders generally require the individual to be incarcerated for a finite period and that period is unaffected by the individual's performance of any future act. In re Scariati , 988 S.W.2d 270, 272 n.1 (Tex. App.—Amarillo 1998, orig. proceeding) ; Ex parte Hosken , 480 S.W.2d 18, 23 (Tex. Civ. App.—Beaumont 1972, orig. proceeding). In criminal contempt proceedings, the contemnor is being punished for his improper actions "and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts." Ex parte Johns , 807 S.W.2d at 771 (quoting Ex parte Hosken , 480 S.W.2d at 23 ). A judge can impose a fine or imprisonment or both in a criminal contempt order. Id. The distinguishing feature of criminal contempt is that the penalty is unconditional. Id. Respondent's 140-day sentence is a criminal contempt order because it punishes relator for violating the divorce decree's permanent injunction. See, e.g. , In re Scariati , 988 S.W.2d at 272 n.1 (order was one for criminal contempt because relator was sentenced "to jail for six months for not maintaining health insurance for his children and the sentence was not subject to being reduced upon his obtaining such insurance"). If the confinements separately assessed as punishment for each violation found are to be served concurrently, one valid adjudication of contempt will sustain the period of confinement imposed for the contempt. Accord , Ex parte Grothe , 581 S.W.2d 296 (Tex. Civ. App.—Austin 1979, orig. proceeding).

DUE PROCESS REQUIREMENTS

A criminal contempt conviction for violation of a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Ex parte Chambers , 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). "Noncompliance with an unambiguous order of which one has notice will ordinarily raise an inference that the noncompliance was willful." Id. at 261. "The involuntary inability to comply with an order is a valid defense to criminal contempt, for one's noncompliance cannot have been willful if the failure to comply was involuntary." Id. The relator bears the burden of proving his inability to comply. Ex parte Hayes , No. 05-17-00473-CV, 2017 WL 2889047, at *3 (Tex. App.—Dallas July 7, 2017, orig. proceeding) (mem. op.) (citing Ex parte Chambers , 898 S.W.2d at 261 ). "In reviewing the record, we are without jurisdiction to weigh the proof and determine whether it preponderates for or against the relator; rather, we determine only if the judgment is void because, for example, the relator has been confined without a hearing or with no evidence of contempt to support his confinement." Ex parte Chambers , 898 S.W.2d at 259–60.

SERVICE

In his second issue, B.G.B., Jr. argues that the order for contempt is void because he was never served with a show cause order giving him full and complete notification and a reasonable opportunity to meet the charges by way of defense or explanation.

Applicable Law

Section 157.061(a) provides that "[o]n filing a motion for enforcement requesting contempt, the court shall set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion." TEX. FAM. CODE ANN. § 157.061(a) (West 2014). However, as a predicate to presenting a complaint on appeal, the complaining party must have preserved the error at trial by a proper request, objection, or motion stating the grounds for the ruling that the party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, and then securing a ruling on the request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1...