in Re Mark Randall Wallen ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00206-CV
IN RE MARK RANDALL WALLEN
From the 413th District Court
Johnson County, Texas
Trial Court No. D2010005128
MEMORANDUM OPINION
Relator, Mark Wallen, requests habeas corpus relief from the April 5, 2011 order
holding him in contempt and ordering his commitment to county jail. We deny habeas
corpus relief.
BACKGROUND FACTS
Mark Wallen and Cathryn Maybin Wallen divorced in May 2010. On August 16,
2010, the trial court entered an agreed modification order. The August 16 order
contained an injunction provision stating that the parties are permanently enjoined
from certain actions including making disparaging remarks regarding the other party or
the other party’s family in the presence or within hearing of the children, hiding or
secreting the children from the other party, and permitting an unrelated adult with
whom the other party has an intimate or dating relationship to remain in the same
residence with the children between the hours of 8:00 p.m. and 8:00 a.m.
On March 8, 2011, the trial court signed a temporary restraining order that stated
in pertinent part:
It is therefore ordered … that [Mark] is immediately restrained from:
Communicating with [Cathryn] in person, by telephone, or in
writing in vulgar, profane, obscene, or indecent language or in a coarse or
offensive manner.
Threatening [Cathryn] in person, by telephone, or in writing to take
unlawful action against any person.
Placing one or more telephone calls, anonymously, at any
unreasonable hour, in an offensive and repetitious manner, or without a
legitimate purpose of communication.
Disturbing the peace of the children or of another party.
Making disparaging remarks regarding [Cathryn] or [Cathryn’s
family] in the presence or within the hearing of the children.
Discussing the case with the children and/or showing the children
any paperwork, emails, text messages, etc concerning the case or the
children the subject of this suit.
Cathryn filed a motion for enforcement alleging, among other things, that Mark
sent her text messages calling her a “bitch” and a “skank.” Mark maintains that
“skank” can mean either “a person and especially a woman of low or sleazy character”
or a “rhythmic dance performed while swinging the arms and bending the knees…”.
Evidently, the trial court did not construe Mark’s text message as a comment on
dancing because after a hearing, the trial court found that Mark violated provisions of
the August 16 order and the March 8 temporary restraining order. The trial court found
thirteen violations and ordered Mark confined for ten days for each violation. The trial
court ordered each period of confinement to run consecutively and stated a beginning
and ending date for each period of confinement. The last period of confinement ends
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on August 14, 2011. The trial court also ordered Mark to pay attorney’s fees to
Cathryn’s attorney. The trial court further ordered that Cathryn has the exclusive right
to designate the primary residence of Mark and Cathryn’s son until August 14, 2011.
STANDARD OF REVIEW
The purpose of a habeas corpus proceeding is not to determine the ultimate guilt
or innocence of the relator, but only to ascertain whether the relator has been
unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The
presumption is that the order or judgment challenged is presumed to be valid. In re
Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). In
a habeas corpus action challenging confinement for contempt, the relator bears the
burden of showing that the contempt order is void. In re Coppock, 277 S.W.3d 417, 418-
19 (Tex. 2009) (orig. proceeding). An order is void if it is beyond the power of the court
to enter it, or if it deprives the relator of liberty without due process of law. Id.
To be enforceable by contempt, an order must set out the terms of compliance in
clear and unambiguous terms. In re Coppock, 277 S.W.3d at 418; Ex parte Brister, 801
S.W.2d 833, 834 (Tex. 1990) (orig. proceeding). Moreover, a person cannot be sentenced
to confinement unless the order unequivocally commands that person to perform a
duty or obligation. In re Coppock, 277 S.W.3d at 418; Ex parte Padron, 565 S.W.2d 921, 921
(Tex. 1978) (orig. proceeding).
RESTRAINT ON SPEECH
Mark argues in his first issue that the order preventing the parties from
communicating in a coarse or offensive manner is an unconstitutional prior restraint on
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speech. An administrative or judicial order that forbids certain future communications
constitutes a prior restraint on speech. Alexander v. United States, 509 U.S. 544, 550, 113
S. Ct. 2766, 2771, 125 L. Ed. 2d 441 (1993). None of the cases cited by Mark involve suits
affecting the parent-child relationship in which the court orders parents to refrain from
disparaging each other in the presence of the children. The cited cases do not address
the negative effect of offensive communication between parents on their children. We
do not find that the trial court’s orders preventing Mark and Cathryn from
communicating with each other in an offensive manner is an unconstitutional prior
restraint on speech. We overrule Mark’s first issue.
VAGUE ORDERS
In his second issue on appeal, Mark argues that the orders he was found to have
violated were too vague for a finding of contempt. Mark contends that the provisions
are not specific enough to be enforced citing In re Coppock as authority. However, in
Coppock the judgment did not order or mandate compliance. There was no injunctive
language commanding or ordering the parties not to engage in the described activity.
In re Coppock, 277 S.W.3d at 419.
The August 16 order “ordered” that the parties are permanently enjoined from
engaging in the described conduct. The March 8 order “ordered” that Mark is
immediately restrained from engaging in the described conduct. The orders contain
sufficient language to advise the parties that refraining from or engaging in the
described conduct is mandatory. In re Coppock, 277 S.W.3d at 419. We find that the
order sets forth the terms in clear and specific terms.
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Mark further contends that the language in the order is susceptible to different
sensibilities and interpretations. The order underlying a contempt judgment must set
forth the terms of compliance in clear, specific, and unambiguous terms so that the
person charged with obeying the order will readily know exactly what duties and
obligations are imposed upon him. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995). If
the court's order requires inferences or conclusions about which reasonable persons
might differ, it is insufficient to support a judgment of contempt. Chambers, 898 S.W.2d
at 260. Only reasonable alternative constructions, however, prevent enforcement of the
order. Id. The order need not be full of superfluous terms and specifications adequate
to counter any flight of fancy a contemnor may imagine in order to declare it vague. Id.
Mark primarily complains of the provisions in the orders that prohibit the parties
from making “disparaging” remarks and from communicating in a “coarse or offensive
manner.” We do not find that the standard language contained in the orders is
ambiguous so that reasonable persons would find it susceptible to multiple
interpretations. We find that the orders are sufficient to support a finding of contempt.
Mark argues that he did not willfully violate the orders. Mark does not cite
authority to support his argument that any violation of the order must be willful. TEX.
R. APP. P. 38.1(f). We overrule Mark’s second issue.
MODIFICATION OF CUSTODY
In his third issue, Mark argues that the contempt order modifies the custody of
Mark and Cathryn’s son, C.W. Mark was the joint managing conservator with the right
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to establish the residence of C.W. The contempt order provided that Cathryn has the
exclusive right to designate the primary residence of C.W. until August 14, 2011.
The purpose of a habeas corpus proceeding is to ascertain whether the relator
has been unlawfully confined. Ex parte Gordon, 584 S.W.2d at 688. The issue of
modification of custody is not properly before us in this proceeding. We express no
opinion on whether the temporary provision for the care of C.W. is an improper
modification of the parent-child relationship.
ATTORNEY’S FEES
Mark argues in his fourth issue that the trial court’s order incorrectly provides
that attorney’s fees may be collected as child support. The order awarded $2,500 to
Cathryn’s attorney. The order provided that Cathryn’s attorney could enforce the
judgment by any means available in his own name for the enforcement of a judgment
for debt. The order further stated that the award of attorney’s fees could be enforced by
any means available for the enforcement of child support including contempt, but not
including income withholding.
The trial court may render judgment for attorney’s fees in a suit affecting the
parent-child relationship, and the judgment may be enforced in the attorney’s name by
any means available for the enforcement of a debt. TEX. FAM. CODE. ANN. § 106.002
(Vernon 2008). It is also generally held, however, that Texas law forbids collection of
attorney's fees by contempt proceedings. In re Bielefeld, 143 S.W.3d 924, 928 (Tex.
App.—Fort Worth 2004, orig. proceeding). Unless attorney fees were incurred to
enforce orders for spousal or child support, law forbids collection of attorney fees by
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contempt proceedings. In re Bielefeld, 143 S.W.3d at 930. We delete the statement in the
order that “the attorney’s fees and costs awarded herein may be enforced by any means
available for the enforcement of child support including contempt but not including
income withholding.” We sustain Mark’s fourth issue on appeal.
ENDING DATE FOR CONTEMPT
In the fifth issue, Mark complains that the trial court erred in setting an end date
for each contempt violation. A trial court has no authority to set an ending date on a
criminal contempt sentence because it denies the contemnor the right to be considered
for “good time,” a statutory credit he may receive as a reward for good behavior in jail.
In re Davis, 305 S.W.3d 326, 333 (Tex. App.—Houston [14th Dist.] 2010, orig.
proceeding). Cathryn concedes that the trial court had no authority to set an end date
on the sentence. The portion of the order setting an ending date for each violation is
therefore void. Accordingly, we delete the ending date for each violation from the
order. Id. Mark’s fifth issue is sustained.
CONCLUSION
We deny habeas corpus relief. The sentences for each violation are ordered to
run consecutively. We delete the statement in the order that “the attorney’s fees and
costs awarded herein may be enforced by any means available for the enforcement of
child support including contempt but not including income withholding.” We also
delete the portion of the order stating an ending date for each violation.
AL SCOGGINS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Denied
Opinion delivered and filed July 12, 2011
[OT06]
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