In re E.W.M.
| Docket Number | 05-19-01589-CV |
| Decision Date | 07 January 2022 |
| Parties | IN THE INTEREST OF E.W.M., A CHILD |
| Court | Texas Court of Appeals |
Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-53699-2018
Before Justices Myers, Partida-Kipness, and Carlyle
In this consolidated appeal and original proceeding, Marc Masefield challenges the trial court's order holding him in contempt and awarding attorney fees to Sarah Rose Masefield. We reverse and remand for proceedings consistent with this memorandum opinion. See Tex. R. App. P. 47.4.
Marc and Sarah divorced in May 2019. In October of that year, they filed dueling enforcement petitions accusing each other of violating the terms of their agreed divorce decree.[1] Relevant to the issues here, Sarah's petition alleged that Marc violated the decree by: (1) failing to provide documents necessary to complete the couple's 2017 federal income taxes; (2) failing to execute documents necessary to transfer property awarded to Sarah in the decree; and (3) interfering with Sarah's possession of the couple's child on numerous occasions.
Sarah lost two days of possession on one of those occasions, after Marc and the child were stranded out-of-state following a flight delay. The other occasions all involved a dispute about exactly where, and to whom, Marc must surrender the child at the end of his possessory periods. As relevant to that issue, the decree states:
In a July 2019 message, Sarah instructed Marc to drop the child off at the daycare on all Fridays following his possession periods, stating she was "designating them a competent adult" under the decree (emphasis added). Sarah did not identify any specific adult at the daycare to whom Marc should surrender the child. Regardless, Marc refused to even enter the daycare, insisting instead that Sarah retrieve the child from the daycare parking lot. Accordingly, Sarah alleged Marc violated the decree both by failing to surrender the child inside the daycare and by failing to surrender the child to her designated competent adult. She asked the trial court to hold Marc in contempt jail him for up to 180 days, place him on ten years' community supervision, fine him $500 per violation, and order him to pay her attorney's fees.
Marc appeared pro se at the hearing on Sarah's enforcement petition. Before proceeding with the hearing, the trial court informed Marc that, because Sarah did not seek more than six months of jail time, he was not entitled to counsel. As to the allegations against him, Marc explained during the hearing that he did not sign the couple's 2017 tax return both because he did not know Sarah had already signed it and because he thought she had underreported her income, thus rendering the tax return fraudulent. He said he could not complete the forms needed to transfer the property awarded to Sarah in the decree because he did not have her account number and she would not respond to his requests for that information. And with respect to the interference allegations, Marc asserted he was not responsible for the flight delay that caused Sarah to lose two days of possession. Further, Sarah never designated an individual at the daycare to act as a competent adult, so he turned the child over to Sarah directly, as required by the decree. Upon further questioning from the court, however, Marc admitted he did not read many of the messages Sarah sent him, including the one in which she purported to designate "them" as a competent adult.
After hearing the evidence, the trial court found Marc in contempt as to all of the alleged violations. The court explained that it did not think the decree was confusing or ambiguous, [2] and it believed Sarah complied with the decree by designating a competent adult to take possession of the child at the daycare. If Marc did not read Sarah's messages, "that's on [him]." The court further commented that, although its "goal is not to encourage jail time," it would require Marc to finalize all documents necessary to facilitate the tax filings and property transfers before leaving the hearing. In addition, the trial court awarded Sarah $15, 000 in attorney's fees.
Marc appealed and filed an alternative petition for writ of mandamus, [3] arguing that the contempt order and fee award are both void because the trial court failed to properly admonish him concerning his right to an attorney and his right against self-incrimination. He further contends: (1) certain aspects of the decree are too ambiguous to enforce by contempt; (2) his failure to timely surrender the child on one occasion is excused by a flight delay beyond his control; (3) he did not violate the decree by requiring Sarah to take possession of the child in the daycare parking lot; (4) the decree's deadline for providing tax documentation is unenforceable by contempt because it expired before the trial court entered the decree; (5) the decree does not establish a deadline for facilitating the property transfer; and (6) the fee award is not supported by sufficient evidence.
The order is reviewable on appeal
Before reaching the merits of Marc's arguments, we must determine the extent of our appellate jurisdiction. See Stevenson v. Ford Motor Co., 608 S.W.3d 109, 115 () (appellate courts are obligated to review sua sponte issues affecting jurisdiction because appellate jurisdiction is never presumed). Generally, we cannot review a contempt order on direct appeal. See Herzfeld v. Herzfeld, 285 S.W.3d 122, 132 (Tex. App.-Dallas 2009, no pet.). Thus, a party wishing to challenge a contempt order must seek either a writ of habeas corpus or a writ of mandamus, depending on the extent to which the trial court's order restrains the party's liberty. See id. If, however, "the trial court's judgment does not come within the confines of a true contempt order, then it should be recharacterized," because "[i]t is not the form of the court's order, but the character and function of the order that determines its classification" for purposes of appellate jurisdiction. See Khan v. Valliani, 113 S.W.3d 922, 927 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992)); Galtex Prop. Investors, Inc. v. City of Galveston, 113 S.W.3d 922, 927 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
There are two types of contempt orders-civil and criminal-that serve distinct purposes. Khan, 113 S.W.3d at 927 (citing Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.-El Paso 1994, orig. proceeding)). A criminal contempt order punishes a party for disobeying a court order, with a maximum penalty of six months' confinement, a $500 fine, or both. Id. (citing Tex. Gov't Code § 21.002(b)). A civil contempt order, in contrast, coerces a party's compliance with a court order, usually through conditional penalties. Id.
The order here functions as neither a civil nor a criminal contempt order. Although the trial court found Marc was in contempt for violating the divorce decree, its order does not punish Marc with jail time or a fine, nor does it coerce Marc's compliance through conditional penalties. Instead, the order merely explains the manner in which Marc violated the decree, clarifies certain provisions of the decree disputed by the parties, orders Marc to pay any penalties ultimately assessed as a result of the delayed tax filing, and awards Sarah $15, 000 in attorney's fees. Because the order does not function as a true contempt order, we can review it on appeal, and mandamus is unavailable. See id.; see also In re Long, 984 S.W.2d 623, 625 (Tex. 1999) ().
The trial court erred by failing to properly admonish Marc
The fact that the trial court did not enter a true contempt order does not change the nature of the hearing on Sarah's enforcement petition. Under the Family Code, a trial court must determine whether incarceration is a possible result of any enforcement proceeding. See Tex. Fam. Code § 157.163(a). If incarceration is possible, the trial court must inform a pro se respondent "of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney." Id. § 157.163(b).
Here the record shows the enforcement...
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