in the Interest of A.C.P., a Minor Child ( 2018 )

Reversed and Remanded and Memorandum Opinion filed November 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00896-CV
IN THE INTEREST OF A.C.P., A MINOR CHILD
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2014-06479
MEMORANDUM OPINION
Appellant Father filed a Fourth Amended Motion for Enforcement of
Possession or Access to his minor child A.C.P. He asked that Mother be held in
contempt for violating the provisions of the divorce decree relating to his visitation
rights and alternatively requested that “if the Court finds that any part of the order
sought to be enforced is not specific enough to be enforced by contempt, the Court
enter a clarifying order more clearly specifying the duties imposed on Respondent
and giving Respondent a reasonable time within which to comply.”
At the hearing on the motion, Mother orally moved for dismissal. The trial
court granted Mother’s motion and dismissed Father’s Fourth Amended Motion for
Enforcement of Possession or Access. Father appeals the ruling.
Although the trial court’s refusal to hold Mother in contempt is not appealable,
we hold that, as a matter of law, the trial court erred in dismissing Father’s alternative
request for clarification of his visitation rights.
I.
When Father’s motion was called for trial, Mother argued, through counsel,
that the portions of the divorce decree dealing with Father’s rights of possession and
access cannot be enforced by contempt, stating,
Now, according to Ex Parte Slavin, the order will not be enforceable
because if you do not have the conditions precedent, they’re supposed
to be met before you move on to the next phase. It’s not clear on its
face, and they have four times, four amendments to get it right, and it’s
still not correct.
The statement, “it’s not clear on its face” is ambiguous, because “it” might refer to
the motion or to the divorce decree; however, Mother’s reference to Ex parte Slavin
indicates that she was referring to the divorce decree. That case stands for the
proposition that “for a person to be held in contempt for disobeying a court decree,
the decree must spell out the details of compliance in clear, specific and
unambiguous terms so that such person will readily know exactly what duties or
obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967)
(orig. proceeding) (emphasis added). Slavin does not impose the same requirements
on a motion for enforcement. We therefore construe Mother’s argument as a
contention that the part of the divorce decree dealing with Father’s rights of
possession and access lack the specificity required to be enforceable by contempt;
2
thus, her argument deals with both of Father’s alternative requests that the trial court
either hold Mother in contempt or clarify this part of the divorce decree.
We lack jurisdiction to review the dismissal of Father’s request that the trial
court use its contempt powers to punish Mother’s alleged noncompliance with the
divorce decree. Cf. In re C.M., No. 14-03-01098-CV, 2006 WL 461378, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.) (appellate court must
determine, de novo and sua sponte, its jurisdiction to consider an appeal). Although
a person who has been held in contempt can challenge the ruling through an original
proceeding, the dismissal of a motion for contempt is not reviewable by direct
appeal. See, e.g., Norman v. Norman, 692 S.W.2d 655 (Tex. 1985); Khan v. Valliani,
439 S.W.3d 528, 536 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re
Guardianship of Bays, 355 S.W.3d 715, 721–22 (Tex. App.—Fort Worth 2011, no
pet.). We accordingly dismiss this portion of the appeal for want of jurisdiction.1
II.
The dismissal of Father’s request for an order clarifying the divorce decree is
another matter. A request for a clarification order is distinct from a request to hold
a party in contempt. See TEX. FAM. CODE ANN. § 157.424 (West 2014) (“The court
may render a clarification order before a motion for contempt is made or heard, in
conjunction with a motion for contempt, or after the denial of a motion for
contempt.”). The trial court’s dismissal of that request for affirmative relief was a
final order, and as such, it is reviewable by direct appeal. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 200 (Tex. 2001).
1
Because we construe Mother’s “condition precedent” arguments to be directed to the
question of whether the relevant portions of the divorce decree are enforceable by contempt, our
dismissal of the attempted appeal of this issue includes dismissal of the arguments Father briefed
concerning the validity of Mother’s “condition precedent” contentions.
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A clarification order is appropriate “if the court finds, on the motion of a party
or on the court’s own motion, that the order is not specific enough to be enforced by
contempt.” Id. § 157.421(a) (West 2014). The procedures applicable to filing a
motion for clarification are the same as those for filing a motion for enforcement,
see id. § 157.422, and Father complied with those procedures. See id. §§ 157.001(d);
157.002(a), (c) (West 2014 & Supp. 2018). He accordingly was entitled to a hearing
and a ruling on the merits of that request.
The trial court, however, ruled that the entirety of Father’s “Fourth Amended
Motion for Enforcement of Possession or Access is dismissed and no hearing shall
be had at this time.”2 Mother presented no grounds for dismissing Father’s motion
for clarification; to the contrary, Mother represented to the trial court that the
visitation portion of the divorce decree was “not clear on its face.”
Because no valid basis was asserted for the dismissal of Father’s motion for
clarification, we reverse this part of the trial court’s order and remand the cause for
further proceedings consistent with this opinion.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and Brown.
2
Emphasis added. Father also represents that he subsequently filed an amended motion
for enforcement which the trial court has refused to set for a hearing. See TEX. FAM. CODE ANN.
§ 157.061 (West 2014) (trial court “shall set” an enforcement motion for hearing if contempt is
requested, and if contempt is not requested, the trial court “shall set” the motion for hearing at a
party’s request). It is not clear from Father’s brief whether he asks this Court to review that matter,
but in any event, we lack jurisdiction to do so. Unlike the trial court’s dismissal of Father’s request
for a clarification order, a trial court’s mere refusal to set a hearing does not itself dispose of a
matter. Being neither a final nor even an interlocutory order, the refusal to set a hearing is not
reviewable by direct appeal but instead must be addressed through a mandamus proceeding. See,
e.g., In re G.P., 495 S.W.3d 927, 931 (Tex. App.—Fort Worth 2016, orig. proceeding).
4