In re Fountain
| Decision Date | 10 December 2013 |
| Docket Number | Cause No.01-12-00704-CV |
| Parties | In re Tammy Fountain |
| Court | Court of Appeals of Texas |
Original Proceeding on Petition for Writ of Habeas Corpus
Pursuant to a request by real party in interest Kathy Katcher, relator Tammy Fountain was found in contempt by the trial court. Relator was ordered to serve 60 days in jail. Relator challenged the validity of that order by filing this original habeas corpus proceeding. This court ordered relator discharged upon filing of a bond, pending the outcome of this original proceeding.
A majority of this panel denied habeas corpus relief. The contempt order is still in place. However, because the parties informed this court that the real party in interest no longer seeks enforcement of the trial court's orders finding relator in contempt and committing her to a 60-day jail sentence (originally entered at her request), this court has refrained from the ultimate order implied by our denial of habeas corpus relief (or from an agreed dismissal of the habeas corpus proceeding): remanding relator to the custody of the sheriff pursuant to the trial court's commitment order that is still in place, and consequently ordering release of the bond.
On November 21, 2013, relator filed a motion for en banc reconsideration. As described by relator: "The primary issue is whether this Court should issue an order that fully effects th[e] parties' Rule 6.6 agreement by releasing the bond." The bond is the condition upon which relator has delayed serving the jail sentence imposed for being found in contempt. Yet, despite our court's disposition of the merits of the habeas corpus petition, finding no legal justification to invalidate the contempt finding or the commitment order, relator asks us to release the bond without also returning her to the custody of the sheriff, based solely on the acquiescence of the real party in interest. While this is a compelling reason why the trial court should consider vacating the challenged orders, it is no basis for this court to substitute its judgment for the trial court's.
Nearly a year has passed in which the parties could have asked the trial court to vacate the orders at issue, and despite our requests, no evidence has been presented to this court that any such request has ever been made. Consequently there is no record whatsoever in this court of any activity in the trial court relevant to the issues now raised in relator's motion. Accordingly, to facilitate the court's consideration of the motion for en banc reconsideration, relator is ordered to supplement its motion with the following:
Relator is ordered to file the supplemental materials no later than January 6, 2014, including any responsive documents which may be filed after the entry of this order. After the time that the supplemental materials are filed, relator is further ordered to continuously supplement its motion with any future filings in the trial court within the scope described above, to be filed in this court within three business days of such documents being filed in the trial court. Relator also may supplement her motion for en banc reconsideration to include reference to any materials filed in this court as a result of this order. Any such supplemental briefing must be filed no later than January 6, 2014.
Real party in interest Kathy Katcher is ordered to file a response to the motion for en banc reconsideration. The response is due no later than February 3, 2014. Katcher's response must include a full description of what steps, if any, have been taken in the trial court to effectuate the Rule 6.6 agreement the parties filed in this court. In particular, Katcher must inform this court whether she has requested that the trial court withdraw the contempt and commitment orders in light of her agreement not to seek enforcement of the orders and acquiescence to the relief sought by relator.
The clerk of this court is ordered to immediately deliver to the trial court:
Finally, in the interests of judicial efficiency, the parties are ordered to immediately inform this court of any action taken by the trial court relevant to the remaining controversy in this court, including but not limited to any action taken to vacate or otherwise suspend the effect of the commitment order, or anyindication the trial court may give that it is disinclined to do so despite the real party in interest's abandonment of her enforcement efforts and acquiescence to relator's requests for relief from the order.
It is so ORDERED.
Judge's signature: Michael Massengale
Acting for the court
Panel consists of Justices Keyes, Massengale, and Brown
Justice Keyes, dissenting, except with respect to the request for a response to the motion for en banc reconsideration.
In this habeas corpus proceeding, relator Tammy Fountain challenges the legality of her confinement for violating an agreed order in a suit affecting the parent-child relationship.* Fountain stipulated that she violated the order, which resulted in findings of contempt and an order committing her to a 60-day jailsentence. The commitment order was suspended, conditioned upon Fountain's continuing compliance with court orders. Acting on a motion to revoke the suspension of commitment, the trial court subsequently found that Fountain had committed further violations of the court's orders, and it ordered that she be taken into custody in accordance with the prior contempt order.
Finding no abuse of discretion in the trial court's revocation of its prior suspension of commitment, we deny the petition.
This is the second time Fountain has sought relief in this court from the proceedings in a suit affecting her parental relationship with her adopted son. See In re Fountain, No. 01-11-00198-CV, 2011 WL 1755550 (Tex. App.—Houston [1st Dist.] May 2, 2011, orig. proceeding) (opinion on rehearing). After we denied mandamus relief from the denial of a motion to dismiss the underlying suit, Fountain agreed to the entry of an order which appointed her as sole managing conservator and Kathy Katcher as a nonparent possessory conservator. Among other things, the October 18, 2011 agreed order provided that within 30 days each party was to "permit the other conservator to obtain health-care information regarding the child" and authorize the disclosure of "protected health information to the other conservator." This order also required each party to notify the "other party, the court, and the state case registry" of any change in the party's contactinformation, including current residence, phone number, and employer contact information. Fountain and Katcher were also required to provide notification of any intended change in this residency and contact information "on or before the 60th day before the intended change." If a party did not know of the change in time to provide the 60-day notice, then notice was required "on or before the fifth day after the date that the party knows of the change."
Several months after the entry of the October 18 agreed order, Katcher moved to enforce that order for Fountain's failure to comply. The trial court held two hearings on May 3 and May 11, 2012. The parties stipulated, and the court found, that Fountain violated the October 18 order by failing to execute releases and thereby failing to permit Katcher to obtain health-care information regarding the child, as required by the agreed order. In an order dated May 24, 2012, Fountain was found to be in contempt and ordered to be committed to the Harris County Jail for a period of 60 days as punishment. In...
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