in Re Stacey Allison ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-142 CV ____________________

IN RE STACEY ALLISON

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Original Proceeding

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MEMORANDUM OPINION

In this proceeding, ⁽¹⁾ relator Stacey Allison seeks relief from the trial court's order finding her in contempt. The trial court's order sentenced Allison to confinement in the county jail of Hardin County, Texas, for a period of six months, but suspended her confinement subject to certain conditions. We grant the writ of habeas corpus.

Factual Background

Allison and Pomonis, the parents of three minor children, divorced in 1992. The trial court's order regarding possession of the children provided as follows:

IT IS ORDERED that the conservators shall have possession of the children at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, as follows:

. . . .

. . . NICK SPERO POMONIS shall have the right to possession of the child as follows:

. . . .

4. Christmas Holidays in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at 3:00 p.m. on December 25.

Pomonis filed a motion for enforcement, in which he asserted Allison failed to allow him possession of the children during Christmas school vacation in 2004 and sought to have Allison held in contempt. Pomonis also sought to recover $1,510.84 for the children's airline tickets.

At the hearing on his motion for enforcement, Pomonis testified that he was supposed to pick up the children at 6:00 p.m. on Friday, but he had called Allison to ask if he could pick them up earlier. According to Pomonis, his son was graduating from chiropractor school in Houston the following morning, so Pomonis needed enough time to pick up the children and attend his son's graduation dinner party in Houston. Pomonis planned to spend the night with the children in LaPorte, attend his son's graduation the next morning, and then fly to Key West for vacation with the children Sunday morning. However, Pomonis, a physician, became busy with patients in the hospital, and the physician covering for Pomonis was not scheduled to begin work until 6:00 p.m. Pomonis realized he could not finish seeing his patients and still arrive at Allison's home by six o'clock, so he decided to pick up his child (N.P.) with another ex-wife (Rene) in Beaumont before picking up his children with Allison in Sour Lake.

Pomonis called Allison and explained the situation to her, and Allison offered to drive to Beaumont to pick up N.P. According to Pomonis, Allison said she would have all of Pomonis's children waiting for him at her home in Sour Lake. Pomonis testified he told Allison that Rene had been threatening not to allow him to have N.P. for Christmas vacation, and Allison assured him she would pick up N.P. Pomonis then called Rene and told her that Allison would be picking up N.P., and Rene refused to allow anyone but Pomonis pick up N.P. Pomonis testified he told Rene, "I'm not going to argue with this. Stacey will be there in a few minutes to pick her up[,]" and then he hung up the phone and went to finish his work at the hospital. Pomonis admitted he was at the hospital at 6:00 p.m. According to Pomonis, Allison had agreed to allow him to pick the children up early, and she also agreed to let him pick them up when he finished working. Pomonis testified that he finished caring for his patients at approximately 7:30 or 7:35 p.m., and he called Stacey to tell her he would arrive to pick up the children in thirty-five to forty minutes. Pomonis testified that Stacey told him she did not have N.P. because Rene would not allow her to take N.P. Pomonis then called Rene, who refused to allow Pomonis to pick up N.P. because it was after 6:00 p.m. According to Pomonis, he told Rene, "You cannot do this to me . . . . I pulled six extra calls during the fall to pay for this trip[.]" Pomonis later arrived at Rene's house, and he called the police upon finding that she was not there.

According to Pomonis, when he left Rene's home, he called Allison, who told him she was not going to allow him to have the children. Pomonis testified that

[Allison's] exact words were, "I'm afraid that you are so angry at Rene right now for what she just did to you that you are going to take it out on the kids and scream at them the entire way, all the way to Houston. And I don't want them . . . you to do that to them. So, I'm not going to let the kids go with you."

Pomonis told Allison he was not upset because he had expected Rene not to allow N.P. to go on vacation. Pomonis estimated that he arrived at Allison's house at approximately 9:00 p.m., and he knocked and rang the doorbell for eight to ten minutes. Pomonis called Allison while his car was parked in her driveway, but he testified that she continued to refuse to let him have the children. Pomonis testified that Allison offered to drive the children to Houston the next morning.

Pomonis told Allison he believed the real issue was that his children wanted to attend a party on Friday night instead of going with him. Pomonis testified that the children had called him two or three times the previous night and begged him to allow them to attend the party. Pomonis refused because he wanted the children to attend their brother's graduation party, and he did not trust Allison to get them there on time. According to Pomonis, he told his children on the night in question, "if I get there in your driveway and you and your mom is [sic] not there, this is a whole scam in order to go to your high school party[.]" Pomonis also testified that he told the children, "I don't care whether you show up at my son's graduation or not. If you show up at my son's graduation the next morning, you're not going to go on this trip." However, Pomonis later testified that he would have allowed the children to go on vacation if they had come to the graduation Saturday morning. When asked why he decided to punish the children by not allowing them to go on the trip, Pomonis stated, "they are old enough to look at their mother and tell their mother, 'Mom, this is not right, you doing this to Dad. You get us to the house. . . . They are also big enough to know that they can't go to some high school party and not go with their dad."

According to Pomonis, fifty minutes before the graduation was scheduled to begin in Houston, Allison called from Sour Lake to get directions for the graduation. Pomonis also testified that after the graduation ceremony, he and his son were leaving to attend the post-graduation party when Allison called from Houston and said she was lost. The next day, Pomonis and his son flew to Key West. Pomonis did not have possession of his children with Allison at all during the Christmas holidays.

Pomonis stated he had rented a large condo, purchased nonrefundable airline tickets, and rented a car for the planned trip to Key West. Pomonis testified, "Every vacation I try to take these kids on, my ex-wives get together and they either try to destroy it before I get there or once I get back from vacation." Pomonis testified he blamed both Allison and Rene for what happened, stating, "they have always gone into cahoots against me[.]" However, Pomonis admitted he has no evidence of any plot by his former wives against him.

C.Z., the boyfriend of Allison's oldest daughter, W.P., testified he was with W.P. just before she and her sisters were to leave for Florida with their father. According to C.Z., the girls were shopping for clothes for the trip, and they all went home between 2:30 and 3:00 p.m. to get ready for the trip. C.Z. did not leave the house until about 9:45 p.m. that evening, and he never heard anyone ring the doorbell, honk the horn, or knock on the door. C.Z. testified that the children were at home until around nine o'clock, when they went to eat. On cross-examination, C.Z. admitted that he works for a company owned by Allison's current husband. C.Z. testified he knew nothing of a school party that weekend.

Allison testified that she agreed Pomonis could pick up the children early, and she volunteered to pick up N.P. Allison stated she also agreed to allow Pomonis to pick up the children later than six o'clock. According to Allison, when she informed Pomonis that she had been unable to pick up N.P., he became irate.

Allison testified she took the children to eat at approximately nine o'clock on Friday night, and they arrived home at about ten o'clock. Allison stated Pomonis never came to her house after they returned from eating. Allison testified, "the children were always, in my opinion, eligible and able to go to Florida. I took them shopping for the trip. I packed them. I had them ready. I in no way denied them to go. Nick told me himself that the children were ineligible to go. They were uninvited." Allison also stated, "I was willing to let the children go. I never ever kept the children from him, from going. And my testimony is he never showed up while I was at the house." Allison stated she did not surrender the children because "[Pomonis] was not there to get them." She denied telling Pomonis that she would not be there with the girls when he arrived.

Allison testified that she offered to bring the children to Houston that night herself or she would take them to Houston the next morning, but Pomonis refused to agree, saying "they were going to do it his way or there would be punishment." Allison stated she drove the children to Houston the next morning, but she was unable to deliver the children to Pomonis because she got lost in Houston. Allison stated she made numerous attempts to call Rene, Pomonis, and Pomonis's family for directions, but she could not reach them.

Allison denied having a plan with Rene to prevent Pomonis from spending Christmas vacation with the children. She also stated, "Today, in this courtroom, is the first time I have ever heard of a party." According to Allison, she has never prevented or attempted to prevent the children from seeing Pomonis. Allison also denied interfering with Pomonis's previous vacations. According to Allison, after the children did not go with Pomonis on Friday night, they were not invited to attend the post-graduation party. The trial court found that Allison violated the possession order by failing "to allow Nick Spero Pomonis possession of the children the subject of this suit from 6:00 p.m. the day that the children were dismissed from school for the Christmas school vacation and ending at 3:00 p.m. on December 24, 2004." The trial court then found Allison guilty of criminal contempt and assessed punishment at confinement in the county jail of Hardin County, Texas, for six months. However, the trial court suspended the commitment for thirty-six months on the conditions that Allison would "comply with the terms of the visitation order in the future" and reimburse Pomonis the sum of $1,510.80 for the airline tickets.

Allison's Issues Two and Four

In her second and fourth issues, Allison contends the evidence is legally insufficient to support finding Allison in contempt and ordering her to pay "a portion of the cost of [Pomonis's] missed vacation." We consider issues two and four together.

A petition for a writ of habeas corpus is a collateral attack on the trial court's order, and the relator must demonstrate that the order is void. Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.--San Antonio 1991, orig. proceeding). The trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. In re Pruitt, 6 S.W.3d 363, 364 (Tex. App.--Beaumont 1999, orig. proceeding). We do not review the sufficiency of the evidence to support the trial court's action. Id. "As a reviewing court, we may only determine if the trial court's contempt findings are so completely without evidentiary support that the trial court's judgment is void because it deprives a relator of liberty without due process of law." Id. (citing Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 186 (1953) (orig. proceeding)). Therefore, we interpret Allison's second and fourth issues as alleging that the trial court's judgment is void because the trial court's findings completely lack evidentiary support.

Although the testimony of Pomonis and Allison disagreed on certain issues, both parties testified that Pomonis did not arrive at 6:00 p.m. to pick up the children. The parties also agree that Allison had agreed to allow Pomonis to pick up the children both earlier and later than 6:00 p.m. Nothing in the possession order requires Allison to wait at home for over three hours past the scheduled time for Pomonis to collect the children. The uncontroverted evidence demonstrated that Pomonis did not arrive to pick up the children at 6:00 p.m. as provided by the possession order. Both parties also testified that Allison attempted to deliver the children to Pomonis in Houston by driving them there herself the next day (Saturday). Pomonis testified that the flight to Key West was not scheduled to depart until Sunday. Furthermore, both Pomonis and Allison testified that Pomonis declined to take the children on vacation to punish them for not being there when he arrived at Allison's house to pick them up. Therefore, we find the trial court's order finding Allison in contempt for not relinquishing the children at 6:00 p.m. and requiring her to pay $1,510.84 for the children's unused airline tickets completely lacks evidentiary support, and is therefore void. See Helms, 152 Tex. at 482, 259 S.W.2d at 186. We grant the petition for writ of habeas corpus.

WRIT GRANTED.

PER CURIAM

Submitted on May 1, 2006

Opinion Delivered June 15, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.

1.

Habeas corpus is the proper vehicle for challenging contempt when the relator is confined. See Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.--Fort Worth 2001, pet. denied). The concepts of "confinement" and "restraint" encompass incarceration, release on bail or bond, release on probation or parole, or any other restraint on personal liberty. Rodriguez v. Court of Appeals, 769 S.W.2d 554, 558 (Tex. Crim. App. 1989); Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). The trial court placed relator on probation. Therefore, although relator filed this case as a petition for writ of mandamus, we construe it as a habeas corpus proceeding. See Ex parte Casillas, 25 S.W.3d 296, 297 n.1 (Tex. App.--San Antonio 2000, orig. proceeding) (Court of Appeals construed relator's "petition for writ of habeas corpus and/or writ of mandamus" as a petition for writ of habeas corpus because relator was confined.).