In re D.L.
| Decision Date | 17 February 2022 |
| Docket Number | 02-22-00011-CV |
| Parties | IN RE D.L., Relator |
| Court | Texas Court of Appeals |
Margaret Barnes, Pro Se.
Robert McEwan, Richardson, Frederick S. Adams, Jr., Dallas, Paul M. Leopold, Southlake, for Real party in interest.
Jeffrey O. Anderson, Dallas, David H. Findley, Brad M. Lamorgese, Dallas, for Relator.
Before Kerr, Birdwell, and Walker, JJ.
Opinion by Justice Walker
The trial court found Mother1 in contempt for violating its possession-and-access order and assessed her punishment at commitment to jail for sixty days for each of six violations, probated the first twenty days of each punishment, and then ordered her to report to the sheriff to serve the remaining forty days in jail with each punishment to run concurrently. Before reporting to the sheriff, Mother filed this petition for writ of mandamus and a motion to stay the trial court's contempt-and-commitment order. We granted the stay pending review of Mother's petition.
In Mother's first issue, regarding the first five violations, Mother contends that she complied with the possession-and-access order when she surrendered the children to Father. In her second issue, she argues that to the extent that she did not comply, her noncompliance was involuntary because the children refused to go with Father.
In her third issue, regarding the sixth violation—Mother's failure to comply with the possession-and-access order's right of first refusal—Mother contends that this provision is too vague to enforce by contempt.
In issue four, Mother argues that to the extent any contempt finding is void, the punishments for all the contempt findings are void because the trial court assessed but one punishment for all six violations.
Finally, in issue five, Mother maintains that because the contempt order is void, the award of attorney's fees in Father's favor is also void.
We hold that the trial court assessed separate punishments for each violation, so each contempt finding and punishment stands or falls independently of the others. We hold that the record supports the trial court's contempt finding on the first violation, so we need not address the remaining violations, all of which carry the same punishment as the first violation and run concurrently with it. Because the contempt order is not void, Mother's attack on the award of attorney's fees fails.
We overrule Mother's issues and deny her petition for writ of mandamus.
Where a relator is not currently restrained of her liberty, a contempt order may be challenged in the context of a mandamus proceeding. See In re Long , 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) ; Rosser v. Squier , 902 S.W.2d 962, 962 (Tex. 1995) (orig. proceeding) ; In re Spates , No. 14-14-00603-CV, 2014 WL 4262197, at *2–3 (Tex. App.—Houston [14th Dist.] Aug. 28, 2014, orig, proceeding) (per curiam) (citing Snodgrass v. Snodgrass , 332 S.W.3d 653, 660, 663 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding)2 ).
We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate remedy at law, such as an appeal. See In re State , 355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding) ; In re Team Rocket, L.P. , 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding) ; Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it is a clear and prejudicial error of law or if it fails to correctly analyze or apply the law to the facts. In re H.E.B. Grocery Co. , 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) ; Walker , 827 S.W.2d at 839–40 ; see also State v. Naylor , 466 S.W.3d 783, 793 (Tex. 2015) (orig. proceeding)3 . We defer to a trial court's factual determinations that have evidentiary support, but we review the trial court's legal determinations de novo. In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
We address Mother's fourth issue first. She contends that the trial court assessed one punishment for all six violations.
If the trial court finds more than one act of contempt but assesses only one punishment, and if one act is not punishable by contempt, then the entire judgment is void. In re Hall , 433 S.W.3d 203, 207 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (citing In re Henry , 154 S.W.3d 594, 598 (Tex. 2005) (orig. proceeding), and In re Gabbai , 968 S.W.2d 929, 931 (Tex. 1998) (orig. proceeding) ). In contrast, if the trial court assesses a separate punishment for each act of contempt, only the invalid portions are void. Id. (). Void portions are severable: "It is possible to sever the invalid portion of a contempt judgment, leaving the remainder intact, if the trial court assesses a separate punishment for each instance of non-compliance with the underlying order." Russell , 875 S.W.2d at 470 n.7.
We construe the order in its entirety. See Coleman v. Hallum , 232 S.W. 296, 297 (Tex. Comm'n App. 1921, judgm't adopted) ; Palomin v. Zarsky Lumber Co. , 26 S.W.3d 690, 695 (Tex. App.—Corpus Christi–Edinburg 2000, pet. denied). The first paragraph under "Criminal Contempt" is admittedly ambiguous, but the second paragraph removes all ambiguity by stating that the punishment is "on each count" and that "jail time for each violation shall run concurrently." If the trial court assessed only one global punishment, the need to specify that the punishment is "on each count" and that the punishments are running concurrently would be unnecessary.
This construction is consistent with the trial court's email ruling. After the hearing on Father's motion for enforcement, the trial court sent to the parties an email memorandum finding Mother in contempt for allegations one, two, three, four, six, and seven, and "for each violation," it assessed Mother's punishment at sixty days in the county jail, with all six punishments to run concurrently. The trial court suspended the first twenty days subject to Mother's compliance with all existing orders.
We overrule Mother's fourth issue.
Having rejected Mother's argument, if any one violation is valid, we need not address the remaining five because even if they are void, Mother would still have to serve jail time for the one valid violation. Cf. 1717 Bissonnet, LLC v. Loughhead , 500 S.W.3d 488, 496 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("A question is immaterial when it should not have been submitted or was properly submitted but has been rendered immaterial by other findings."); McDaniel v. Cont'l Apartments Joint Venture , 887 S.W.2d 167, 170–71 (Tex. App.—Dallas 1994, writ denied) (op. on reh'g) ("A trial court may ... disregard a jury finding when other jury findings render it immaterial.").
Because we hold that the first violation is valid, we focus our discussion largely there. In the first alleged violation, Father asserted that on July 30, 2021, Mother failed and refused to surrender the children to him at 6:00 p.m. at her residence, as required by the possession-and-access order.
On December 7, 2018, Mother and Father entered into an agreed order regarding possession and access to their two children, Andy and Bruce. Father's possession started at 6:00 p.m. on the first, third, and fifth Friday of each month and ended at 6:00 p.m. on the following Sunday, and during the regular school year, he also had possession on Thursdays beginning at 6:00 p.m. and ending at 8:00 p.m. Mother was ordered to surrender the children to Father at the beginning of each period of Father's possession at Mother's residence.4
About a year and a half later, in June 2020, Mother filed a motion to modify the parent–child relationship. This motion and the hearing on it are the prelude—or perhaps the springboard—to Father's later motion for enforcement.
In her motion, Mother alleged that the circumstances of the children had materially and substantially changed but did not specify how they had changed. Mother stated that she believed that she and Father would reach an agreement, but if she and Father did not reach an agreement, she requested that (1) she have the exclusive right to consent to the children's psychiatric and psychological treatment, (2) Mother and Father's current co-parenting...
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