IN RE DAVIS
| Decision Date | 06 January 2010 |
| Docket Number | No. 14-09-00943-CV.,14-09-00943-CV. |
| Citation | 305 SW 3d 326 |
| Parties | In re Stephanie DAVIS, Relator. |
| Court | Texas Court of Appeals |
Penny Wymyczak-White, Houston, for relator.
William Leslie Shireman, Houston, for real party in interest.
Panel consists of Justices YATES, FROST, and BROWN.
On November 9, 2009, relator, Stephanie Davis, filed a petition for writ of habeas corpus seeking release from jail. See Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004); Tex.R.App. P. 52.
On September 17, 2009, the trial court issued an order in a suit to modify parent-child relationship. Relator, Stephanie L Davis, is the children's mother. The real party in interest, Robert M. Carlson, is the children's father. In the order, among other things, relator was ordered to:
On October 8, 2009, real party in interest filed a motion for contempt alleging 12 violations of the September 17, 2009 order. On October 29, 2009, the trial court signed an order holding relator in criminal contempt for failure to comply with the order signed September 17, 2009. Specifically, the court found relator in contempt for the following violations:
The court assessed punishment at 150 days for each count, with the sentences to be served concurrently beginning immediately and ending on March 28, 2010. Relator contends that she is entitled to release because (1) she did not receive notice of four of the violations, (2) the underlying order is vague and ambiguous, (3) the enforcement order was not properly incorporated into the contempt order, and (4) the order does not allow for good-time credit.
This court will issue a writ of habeas corpus if the contempt order is void because it deprives the relator of liberty without due process of law or because it was beyond the power of the court to issue. Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996). The contempt order must clearly state in what respect the court's earlier order has been violated and must clearly specify the punishment imposed by the court. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.1997).
In her first three issues, relator contends she has been deprived of her liberty without due process because she did not receive notice of violations 3, 4, 5, and 6 because these violations were found to have occurred after the motion for contempt was filed. Contempt proceedings are quasi-criminal in nature, and the contemnor is entitled to procedural due process throughout the proceedings. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983). Among those procedural due process rights is the right to reasonable notice of each act alleged to constitute contempt. The due process requirement is one of "full and complete notification" of the conduct with which the contemnor is charged and the contemnor must be given a reasonable opportunity to meet the charges by defense or explanation. Ex parte Adell, 769 S.W.2d 521, 522 (Tex.1989). A contempt order rendered without such adequate notification is void. Id.
The real party agrees that the motion for contempt failed to provide relator with notice of every contemptuous act found by the trial court. Real party asks this court to reform or modify portions of the trial court's order that relate to contempt and commitment, and to strike the portions of the order in which the court found relator in contempt for violations 3 through 6. We sustain relator's contention that she was given inadequate notice of the acts listed in violations 3, 4, 5, and 6 for which she was found in contempt. We hold that the portions of the contempt order listing violations that occurred after October 8, 2009 are void.
The void portions of the order relating to contempt (violations 3, 4, 5, and 6) do not make the entire order void because the trial court listed the contempt sentences separately. The void portions are capable of being severed from the valid portions of the order. See In re Ross, 125 S.W.3d 549, 553 (Tex.App.-Austin 2003, orig. proceeding). Accordingly, we sustain relator's first three issues and modify the trial court's order by striking violations 3, 4, 5, and 6 as void.
In her fourth issue, relator contends that the underlying order is vague, ambiguous, and nonspecific as to be unenforceable by contempt. First, she argues that the paragraph requiring her to phone the physician and the father within one hour of the child awakening with symptoms of illness is vague in that the phrase, "appears to be ill upon awakening" does not define "appears to be ill," nor does it set a time parameter other than "upon awakening." Second, she argues that the paragraph requiring her to "furnish" insurance cards is vague in that "furnish" does not necessarily mean "deliver." The phrase could be read to require relator to only "make available" the health insurance cards. She also argues that the phrase "and any other forms necessary" is too vague to be enforceable by contempt.
The order underlying a contempt judgment must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations are imposed upon her. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). The question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the judgment itself. Ex parte Reese, 701 S.W.2d 840, 841 (Tex.1986). If the court's order requires inferences or conclusions about which reasonable persons might differ, it is insufficient to support a judgment of contempt. Chambers, 898 S.W.2d at 260. Only reasonable alternative constructions, however, prevent enforcement of the order. Id. "The order need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague." Id.
In violations 1 and 2 of the contempt order, relator was found to have violated the underlying order by failing to notify the children's father within one hour of receiving healthcare information from the child's physician regarding the child, and for failing to contact the child's physician for instruction relating to the child's healthcare upon the child awakening ill. The specific provision reads as follows:
In the event that a child appears to be ill upon awakening on a regularly scheduled school day, STEPHANIE L. DAVIS is ORDERED to contact that child's primary care physician to obtain directions as to the child's care. STEPHANIE L. DAVIS is ORDERED to provide proper notice to ROBERT M. CARLSON within one hour of her contact with the child's physician, to include the physician's name, telephone number, and any instructions given by the physician related to the child's care. If a child's physician directs that the child remain home from school, this shall create a rebuttable presumption that the absence from school shall be excused.
Relator argues that the underlying order is insufficient to support an order of contempt because the above paragraph requires inferences or conclusions about which reasonable persons might differ. Specifically, relator argues that the phrase, "a child appears to be ill upon awakening" is subject to differing interpretations. We agree. The order does not set specific parameters for symptoms of illness, nor does it provide a time parameter other than "upon awakening." A reasonable person may not immediately know when a child awakens, or may differ in her interpretation of whether the child appears to be ill. Because this portion of the underlying order does not contain the requisite specificity, it is not enforceable by contempt.
In violations 7 and 8, relator was found to have violated the underlying order by failing to provide the children's father...
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