Karen Haffelfinger v. Blake Adams ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00512-CV
Karen Haffelfinger, Appellant
v.
Blake Adams, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-06-000320, HONORABLE RHONDA HURLEY, JUDGE PRESIDING
MEMORANDUM OPINION
This proceeding arises from persistent and acrimonious disputes between
Karen Haffelfinger and Blake Adams, whose relationship, it would appear from the record, has
consisted principally of conceiving a daughter born in 2006 and thereafter litigating (through a
succession of different attorneys representing each party) their respective rights and duties with
regard to child support and visitation. The immediate backdrop for this latest round of litigation was
a 2009 order that held Adams in contempt for failing to pay his monthly child-support obligations
timely and imposed sanctions that included 180 days’ jail time, but suspended the sentence and
placed Adams on community supervision conditioned on, inter alia, compliance with his child-
support obligations going forward. Thereafter, Haffelfinger, alleging continued noncompliance by
Adams, filed a succession of motions to revoke the suspension of Adams’s confinement. Although
Haffelfinger’s efforts yielded her some additional attorney’s fees, they ultimately backfired to the
extent the district court was persuaded that section 157.162(d) of the Family Code, then still in
effect, had barred it from holding Adams in contempt in the first place because he had paid the
outstanding child-support obligation made the basis for contempt by the time of the contempt
hearing.1 Consequently, the district court denied Haffelfinger’s most recent motion to revoke and
instead vacated the portions of its 2009 order holding Adams in contempt and all of the sanctions
and conditions it had imposed on that basis.
Haffelfinger has now filed a notice of appeal from the portion of the district court’s
order that denies her motion to revoke and vacates the contempt findings and sanctions. We lack
subject-matter jurisdiction to consider, on direct appeal, what is in substance an order refusing to
hold a party in contempt. See In re Office of Attorney Gen., 215 S.W.3d 913, 915 (Tex. App.—Fort
Worth 2007, orig. proceeding) (citing Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985)
(per curiam) (holding that “an order finding a party not in contempt is not a final, appealable
judgment”)). Nonetheless, we will construe Haffelfinger’s briefing as an attempt to invoke our
original jurisdiction by way of a writ of mandamus. See CMH Homes v. Perez, 340 S.W.3d 444,
452–54 (Tex. 2011); see also Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas 2007,
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Section 157.162(d), which the Texas Legislature repealed during its most recent regular
session, prohibited courts from holding a parent in contempt for failure to pay child support “if the
respondent appears at the hearing with a copy of the payment record or other evidence satisfactory
to the court showing that the respondent is current in the payment of child support as
ordered by the court.” See Act of May 23, 2007, 80th Leg., R.S., ch. 1189, § 1, 2007 Tex. Gen. Laws
4054, repealed by Act of May 22, 2013, 83d Leg., R.S., ch. 649, § 2, 2013 Tex. Gen. Laws 1735
(effective June 14, 2013). When repealing section 157.162(d), the Legislature continued the prior
law in effect as to any “hearing” that “commences” before the act’s effective date, June 14, 2013.
See Act of May 22, 2013, 83d Leg., R.S., ch. 649, § 3, 2013 Tex. Gen. Laws 1735. There is
no dispute that the underlying proceedings commenced prior to June 14, 2013. Consequently,
section 157.162(d) would apply here.
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no pet.) (noting that court lacked jurisdiction over attack on contempt order on direct appeal, but
treating appeal as a mandamus petition).
Although Hafffelfinger advances waiver, estoppel, and “collateral attack” arguments
that we conclude are without merit, she does alert us to In re Office of the Attorney General, in which
the Texas Supreme Court recently construed former section 157.162(d) of the Family Code as
purging contempt only where the respondent is current in payment of all child-support obligations
by the time of the contempt hearing, not merely those obligations that may be the basis for contempt.
___ S.W.3d ___, No. 11-0255, 56 Tex. Sup. Ct. J. 360, 2013 WL 854785, at *3–5 (Tex. Mar. 8,
2013) (orig. proceeding). The district court did not have the benefit of In re Office of the Attorney
General at the time it signed the order at issue, and it used language that is potentially inconsistent
with the supreme court’s reasoning. In particular, the district court concludes that Adams was
current in the payment of his monthly child support obligations as of the date of the contempt
hearing, which the court held sufficient to purge contempt under former section 157.162(d), yet it
also seems to hold that Adams was in arrears for other forms of compensation that it termed “child
support.” But the district court’s reasoning is not entirely clear, and, of course, neither it nor the
parties had occasion to address specifically the implications of In re Office of the Attorney General.
Nor is it clear that the district court’s ultimate decision not to impose contempt on Adams would be
an abuse of discretion in any event, given the broad discretion that trial judges possess in this regard.
See, e.g., In re Reece, 341 S.W.3d 360, 362 (Tex. 2011) (orig. proceeding).
Under the circumstances here—and despite our reluctance to encourage
further litigation between these parties—we believe that the district court and the parties
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should have the opportunity to revisit, in light of In re Office of the Attorney General,
whether Adams can be held in contempt based on his conduct preceding the 2009 order,
and, if so, whether he should be. Accordingly, we deny Haffelfinger’s petition for writ of
mandamus without prejudice. See In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741
(Tex. 1998) (orig. proceeding); In re Ford Motor Co., No. 03-08-00617-CV, slip op. at 4–5
(Tex. App.—Austin Mar. 6, 2009, orig. proceeding) (mem. op.), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c2ad5f30-9a14-4b81-8b1c-
7375b6532070&coa=coa03&DT=Opinion&MediaID=4713e0ec-d256-49ff-b657-d58c934ee53a.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Field
Filed: November 21, 2013
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