In re Fountain

• Decision Date: 28 December 2012
• Docket Number: No. 01–12–00704–CV.,01–12–00704–CV.
• Citation: 433 S.W.3d 1
• Parties: In re Tammy FOUNTAIN, Relator.
• Court: Texas Court of Appeals

433 S.W.3d 1

In re Tammy FOUNTAIN, Relator.

No. 01–12–00704–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 28, 2012.

Daniel J. Lemkuil, Shannon L. Boudreaux, for Tammy Fountain.

Linda Marshall, for Kathy Katcher.

Panel consists of Justices KEYES, MASSENGALE, and BROWN.

OPINION

MICHAEL MASSENGALE, Justice.

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 jail sentence. 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.

Background

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 contact information, 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 the same order, the 60–day jail sentence was suspended on the condition that she comply with the October 18 agreed order and with additional provisions contained in a new modification order which, like the contempt order, was also dated May 24, 2012.

The May 24 modification order required, among other provisions, that Fountain notify the child's schools in writing that Katcher could have lunch with the child at school, attend school activities, and “receive all school notices, including all email notices normally sent to parents.” Fountain was required to provide this notice to the child's current school by May 15, a date which was four days after the May 11 hearing but nine days before the May 24 order giving rise to this new obligation was actually entered. Additionally, the modification order obligated both parties to exchange a variety of information through an internet application called “Our Family Wizard.” The parties were also required to promptly update this data, within 36 hours of any change to any of the initially exchanged data or to other specified scheduling matters, including but not limited to the inability to exercise a period of possession or knowledge that the child would not be attending a previously scheduled extracurricular activity.

Approximately one month later, Katcher moved to revoke the suspension of Fountain's commitment. Katcher alleged multiple violations of the prior orders, three of which are relevant in this proceeding. First, she alleged that Fountain had failed to give her sufficient notice of changes to the child's residence when Fountain notified her of a change of residence to Galveston County effective three days later. Second, she alleged that Fountain had not timely notified the child's school that Katcher could visit the child for lunch, pick him up from class, and attend school activities. Third, she argued that Fountain had violated the provision of the modification order requiring communication within 36 hours through Our Family Wizard about changes to the scheduled possessory period with the child.

After a hearing, the trial court revoked the suspension of Fountain's commitment in an order dated July 31, 2012. The court found that Fountain had violated the prior orders three times. First, she had failed to “provide the required notice” that she was moving on June 22 when she mailed notice of the move to Katcher on “June 18, 2012.” Second, Fountain had failed to inform the school by May 15 that Katcher had permission to access the child there. Third, Fountain had failed to post information to Our Family Wizard as required. The district court ordered that Fountain be committed in accordance with “the orders attached hereto as Exhibits A, B, and C.” A copy of the May 24 commitment order was attached as Exhibit A. On its second page, that order provided that “punishment for the violation set out above is assessed at confinement in the Harris County Jail for a period of sixty (60) days.” Fountain was taken into the custody of the jail on the same day.

Fountain filed an original petition for writ of habeas corpus seeking relief in this court, raising five issues. We ordered her released on bond pending our determination of her petition. SeeTex.R.App. P. 52.10.

Analysis

A final order for possession of or access to a child may be enforced by means of a motion for enforcement as provided by chapter 157 of the Family Code. Tex. Fam.Code § 157.001(a) (West 2008). Such an order may be enforced by contempt, as also provided by chapter 157. Id. § 157.001(b). Chapter 157 specifies particular information that a motion for enforcement must provide “in ordinary and concise language,” including identification of “the provision of the order allegedly violated and sought to be enforced,” “the manner of the respondent's alleged noncompliance,” and “the relief requested by the movant.” Id.§ 157.002(a). A motion to enforce the terms and conditions of access to a child must also include “the date, place, and, if applicable, the time of each occasion of the respondent's failure to comply with the order.” Id.§ 157.002(c). Chapter 157 sets forth detailed procedures for hearings on enforcement motions.¹

One potential outcome of a hearing on an enforcement motion requesting contempt findings and sanctions is that the trial court “may place the respondent on community supervision and suspend commitment if the court finds that the respondent is in contempt of court for failure or refusal to obey an order rendered as provided in this title.” Id. § 157.165. Community supervision under chapter 157 is subject to different procedures from those applicable to enforcement motions. The procedures governing community supervision are detailed in a distinct subchapter. Under that subchapter, a “party affected by the order may file a verified motion alleging specifically that certain conduct of the respondent constitutes a violation of the terms and conditions of community supervision.” Id. § 157.214. Unlike the procedures generally applicable to a motion to enforce, a prima facie showing of a violation of a condition of community supervision can result in the immediate arrest of the respondent, id. § 157.215, followed by a hearing on the motion to revoke community supervision within three days.² “After the hearing, the court may continue, modify, or revoke the community supervision.” Id. § 157.216(c).

In her petition, Fountain alleges numerous deficiencies and errors in the motion and order that revoked the suspension of her commitment to jail. A commitment order is subject to collateral attack in a habeas corpus proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex.2005); seeTex. Gov't Code Ann. § 22.221(d) (West 2004) (granting the appellate courts the power to issue writs of habeas corpus). The purpose of the habeas corpus proceeding is not to determine the guilt or innocence of the relator, but only to determine whether she has been unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). We initially presume that the contempt order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding). But the writ will issue if the trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Id. (citing Henry, 154 S.W.3d at 596).

The relator bears the burden of showing that she is entitled to relief. Id. In reviewing the record, we do not weigh the proof; rather, we determine only if the judgment is void because, for example, the relator has been confined without a proper hearing or with no evidence of contempt to support her confinement. Ex parte Chambers, 898 S.W.2d 257, 260 (Tex.1995); seeTex. Gov't Code Ann. § 22.221(d) (providing that courts of appeals exercise jurisdiction over habeas corpus...