In re Taylor

• Decision Date: 21 February 2001
• Docket Number: No. 10-01-003-CV,10-01-003-CV
• Citation: 39 S.W.3d 406
• Parties: (Tex.App.-Waco 2001) IN RE RICHARD OWEN TAYLOR
• Court: Texas Court of Appeals

Page 406

39 S.W.3d 406 (Tex.App.-Waco 2001)

IN RE RICHARD OWEN TAYLOR

No. 10-01-003-CV

IN THE TENTH COURT OF APPEALS

February 21, 2001

Original Proceeding

[Copyrighted Material Omitted] Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

VANCE, Justice

Richard Owen Taylor, Relator, filed a Petition for Writ of Mandamus seeking to compel Respondent, the Honorable Joe N. Johnson, Judge of the 170th District Court of McLennan County, to conduct an evidentiary hearing on Relator's motion for enforcement and for contempt against his former wife, Valerie Annette Taylor, the Real Party in Interest herein. Relator, who is incarcerated in the Coffield Unit of the Texas prison system, also requests that Valerie be ordered to appear at the hearing and that Relator either be brought from prison to appear in person, or be allowed to attend by videoconferencing.

BACKGROUND

Relator and Valerie were divorced in February of 2000. Relator was then, and still is, serving a forty-year sentence for murder. Relator appealed his divorce, which is currently pending in this Court in cause number 10-00-00126-CV. On April 10, 2000, Relator filed a motion for enforcement and for contempt in the trial court, claiming that Valerie had failed to comply with certain terms of the divorce decree, specifically that she had failed and refused to supply him with information, including health records, about the health, education, and welfare of their three children, and to confer with him before making decisions about the children's health, education, and welfare. Because he was appointed possessory conservator of the children, his rights regarding these matters were conferred on him in the divorce decree under Tex. Fam. Code Ann. § 153.073(a)(1 and 2) (Vernon 1996), and § 153.076(a) (Vernon Supp. 2001). He claims to have sent one hundred and twenty letters to Valerie on these matters, but to no avail. Relator also filed an application for a writ of habeas corpus ad testificandum in the trial court, seeking to attend the hearing in person or via videoconferencing.

When the trial court refused to rule on either his motion or his application, Relator filed a petition for a writ of mandamus with this court on July 17, 2000, in cause number 10-00-253-CV. On October 18, 2000, we issued an opinion conditionally granting the petition, giving the trial court fourteen days to set a hearing on the motion, and to rule on the habeas corpus application.

The trial court set a hearing on the motion for December 1, 2000, and denied the habeas corpus application, instead granting permission for Relator to file an affidavit to proffer his evidence. The court gave no reason for denying the application. Relator did not make personal service on Valerie of the fact and date of the hearing as required by Tex. Fam. Code Ann. § 157.062 (Vernon 1996), but rather served notice by certified mail. Valerie and her lawyer appeared at the hearing, made a "special appearance" complaining of the absence of personal service, and complained that the trial court had no jurisdiction to hear a contempt motion when there was an appeal pending regarding the underlying divorce decree. The trial court found it had jurisdiction over the parties and subject matter, although Valerie had not been properly served, i.e., she was not personally served. The court held that "[a] judgment must be final before it can be enforced by contempt," and denied the motion. Relator now seeks a second writ of mandamus ordering the trial court to conduct a hearing on the contempt motion, to order Valerie to appear at the hearing, and to order Relator either brought to the hearing or allowed to attend by videoconferencing.

JURISDICTION TO HEAR THE MOTION

The threshold question is whether the trial court has jurisdiction to enforce the provisions of the divorce decree by contempt. The Supreme Court addressed this issue in Schultz v. Fifth Judicial Court of Appeals at Dallas, 810 S.W.2d 738 (Tex. 1991). In that case, the trial court issued a turnover order regarding income checks of Schultz, and Schultz appealed, also filing a supersedeas bond. When he missed his first payment under the turnover order, his creditor filed a motion in the appeals court for leave to file a motion for contempt. The appeals court denied leave, holding that the trial court had jurisdiction over the matter. The creditor then filed a contempt motion in the trial court. Schultz filed a mandamus proceeding in the appellate court arguing that the trial court was without jurisdiction because the case was on appeal. When that was denied, Schultz filed a mandamus proceeding with the Supreme Court. The Supreme Court held that a turnover order is in the nature of an injunction, and is therefore appealable. Id. at 740. The court further held that for "appealable orders in the nature of an injunction, in which the validity of the order alleged to have been violated is itself in issue in the appeal, the appellate court alone is vested with jurisdiction to enforce the injunctive provisions by contempt." Id. (emphasis added) (citing inter alia Ex parte Boniface, 650 S.W.2d 776, 777-78 (Tex. 1983)). If an evidentiary hearing is needed, the appeals court can refer the case to the trial court for that hearing. In so holding, Schultz acknowledged that "[s]ome courts have held in . . . 'injunctive' type orders under the Family Code, the legislature has provided that contempt jurisdiction remains in the trial court." Id. at 741 n.9 (citing Bivins v. Bivins, 709 S.W.2d 374, 375 (Tex. App.--Amarillo 1986, no writ), and Martin v. O'Donnell, 690 S.W.2d 75, 77 (Tex. App.--Dallas 1985, orig. proceeding)).

In this case, the order alleged to have been violated, i.e., the part of the divorce decree granting Relator's statutory rights to information about the health, education, and welfare of his children, including health records, and for Valerie to confer with him before making decisions about the children's health, education, and welfare, was not mentioned in the direct appeal. On appeal, Relator does not complain about having been given these rights, obviously because they are to his benefit.¹ Therefore, the rule in Schultz does not apply. Rather, we agree with our sister courts in Amarillo and Dallas that the trial court does have jurisdiction of Relator's contempt motion.

In Bivins v. Bivins, 709 S.W.2d 374 (Tex. App.--Amarillo 1986, no writ), movant filed a motion for contempt regarding child support as an original proceeding in the appeals court. The appeals court found that although the Family Code is not clear on whether the trial court can enforce a child support order when the divorce is on appeal, the Family Code does indicate that the trial court is the "preferred forum." Id. at 375-76. The court referred to Sections 109.001 and 6.709 as examples of the legislature's intention that the trial court retain jurisdiction to enforce its orders when a case is on appeal. Tex. Fam. Code Ann. § 109.001, and § 6.709 (Vernon 1996 and 1998).² Section 109.001 provides that within thirty days of an appeal being perfected, the trial court may hear motions on temporary orders to preserve and protect the safety and welfare of the children, and a "court retains jurisdiction to enforce its orders rendered under this section unless the appellate court, on a proper showing, supersedes the court's order." Id. § 109.001(b). Section 6.709 is a similar provision regarding the property of the parties. Id. § 6.709. In addition, the court stated it is impractical for an appeals court to hear contempt motions because of the difficulties of the court conducting evidentiary proceedings without the proper personnel or facilities. Bivins, 709 S.W.2d at 376. Although the court could order the trial court to make these findings at a hearing, that is "awkward, expensive and time consuming." Id. at 375. Therefore, the trial court is a "proper forum." Id. at 376. Noticeably, Bivins does not say the appeals court is without jurisdiction; only that the trial court is the preferred court.

In Sullivan v. Sullivan, 719 S.W.2d 239 (Tex. App.--Dallas 1986, writ denied), a motion for contempt over child support was filed as an original proceeding in the appeals court while the divorce was pending on appeal. At movant's request, the motion was referred to the trial court for an evidentiary hearing. After the record of that hearing was prepared, the parties filed objections disputing the accurateness of the record. The court noted that if the appeals court continued to hear the motion, the objections that were made to the record would require that the matter again be referred back to the trial court under Tex. R. App. P. 55(a) (now Rule 34.6(e)) for correction of the record. After citing Bivins, the court concluded that the resolution of the motion would be "far more efficiently, inexpensively, and expeditiously handled" by the trial court, and therefore "the trial court has jurisdiction to enforce, by contempt, its child support order, pending an appeal of that order." Id. at 240. The court also noted, similarly to Bivens, that the enactment of Section 109.002(c) evidences an intention by the legislature that the trial court retain jurisdiction to enforce its orders even though a divorce is pending on appeal.³ Id.; Tex. Fam. Code Ann. § 109.002(c) (Vernon 1996). The section provides that orders being appealed from are not suspended unless the trial court, with permission of the appeals court,suspends the order. Finally, just as in Bivens, the court did not state it did not have jurisdiction. Sullivan, 719 S.W.2d at 240; see also In re Gonzalez, 981 S.W.2d 313, 314 (Tex. App.--San Antonio 1998, pet. denied) (the trial court has jurisdiction when the direct appeal is pending to hear a motion for confirmation of arrearages and to reduce arrearages to money judgment; citing Bivins and Sullivan).

We held in the previous mandamus action concerning these same parties,...