in Re Tammy Fountain ( 2012 )


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  • Opinion issued December 28, 2012
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-12-00704-CV
    ———————————
    IN RE TAMMY FOUNTAIN, Relator
    Original Proceeding on Petition for Writ of Habeas Corpus
    DISSENTING OPINION
    I respectfully dissent. I deeply disagree with the majority’s characterization
    of the issues in this case, its legal conclusions, and its disposition of this habeas
    corpus proceeding.
    The trial court found Tammy Fountain in contempt for violating a court
    order in a suit affecting the parent-child relationship, sentenced her to jail, and, in
    the same order, suspended her commitment.1 The court subsequently revoked its
    earlier suspension order and committed Fountain to jail.        In five issues, she
    contends that the commitment order is void and violates her constitutional due
    process rights. The majority first addresses the trial court’s order committing
    Fountain to jail and reaches its conclusion that she be returned to jail. It fails to
    identify or address any of the five issues raised by Fountain until page eight of its
    opinion, swiftly disposes of the first issue, and then lumps her other four issues
    together and disposes of those by holding that the statutory and constitutional
    procedural safeguards that apply to contempt proceedings do not apply to orders
    revoking the suspension of commitment.
    I agree with Fountain that the commitment order is void under established
    Texas law and that, therefore, her commitment to jail violates her constitutional
    right to due process of law. In its contempt order committing Fountain to jail, the
    trial court failed to specify the manner in which Fountain had committed two of the
    three violations for which it found her in contempt. For the remaining violation,
    the trial court found Fountain in contempt for acts that occurred before the court
    signed the order giving rise to Fountain’s obligation. The commitment order is,
    therefore, void. I would hold that the trial court abused its discretion in revoking
    1
    The underlying case is In the interest of S.F., a child, No. 2010-31997, in the
    309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
    presiding.
    2
    its order suspending Fountain’s commitment. I would grant the petition for writ of
    habeas corpus, and I would order Fountain discharged.
    Background
    On October 18, 2011, the trial court signed an order in which Tammy
    Fountain and Katherine Katcher agreed to their various rights and duties as
    conservators of a child. Among its numerous provisions, this order provided that,
    within thirty days after the signing of the order, each party was to “permit the other
    conservator to obtain health-care information regarding the child” and to authorize
    the disclosure of “protected health information to the other conservator” pursuant
    to federal health care law. The order also required each party to notify the “other
    party, the court, and the state case registry of any change in the party’s current
    residence,” phone number, employer contact information, and other similar
    information.   The party was required to provide notification of any intended
    change in this residency and contact information “on or before the 60th day before
    the intended change.” If the party did not know of the intended change in enough
    time to provide the sixty-day notice, then the party was required to give notice “on
    or before the fifth day after the date that the party knows of the change.”
    Several months later, on May 24, 2012, the trial court entered an order of
    contempt against Fountain because the court found that she had violated the earlier
    October 18, 2011 order by failing to execute the required releases to allow Katcher
    3
    to obtain the child’s health-care information. Accordingly, the trial court ordered
    Fountain committed to Harris County Jail for sixty days. But in the same order,
    the court suspended Fountain’s commitment so long as she complied “with each
    and every provision of the Agreed Order of October 18, 2011, and of the
    Modification Order of May 25, 2012.” To accompany this order, the trial court
    prepared a modification order, which imposed new duties and obligations on
    Fountain. The hearing on these orders was held on May 11, 2012, but the orders
    were not signed and filed until May 24, 2012, thirteen days later.
    The May 24, 2012 modification order, among other provisions, required that
    Fountain notify the child’s school, in writing with notice to the court, that Katcher
    could have lunch with the child at school, pick the child up from school, attend
    school activities, and receive all school notices. Fountain was required to notify
    the child’s current school by May 15, 2012, four days after the hearing on the new
    order, but nine days before the trial court signed the new order giving rise to this
    obligation. Additionally, the May 24, 2012 modification order obligated both
    parties to exchange contact information and schooling information and, within
    thirty-six hours of a change, to post any changes to periods for possession of the
    child through an Internet program called “Our Family Wizard.”
    A month later, Katcher moved to revoke the suspension of Fountain’s
    commitment. She accused Fountain of four violations of the prior orders. First,
    4
    she alleged that Fountain had failed to provide the required notice of changes to the
    child’s residence when Fountain had notified her only on June 19, 2012, that
    Fountain and the child would be moving to Galveston County three days later.
    Second, she alleged that Fountain had not notified the child’s school by May 15,
    2012, that Katcher could visit the child for lunch, pick him up from class, attend
    school activities, and receive school notices. Third, Katcher alleged that Fountain
    had violated the provision of the May 24, 2012 modification order requiring
    communication within thirty-six hours through the Our Family Wizard website
    about changes to the scheduled possessory period with the child. Fountain had
    allegedly told Katcher that the child would not be available for Katcher’s
    scheduled lunch visit on June 6, 2012, because the child would be absent from
    school all week, but she then told Katcher on June 8, 2012, that the child had only
    been absent on the day scheduled for Katcher’s visit. Fourth, Katcher accused
    Fountain of not paying a $77 court cost.
    On July 31, 2012, after a hearing, the trial court revoked the suspension of
    Fountain’s commitment (“the commitment order”). Using substantially the same
    wording as found in Katcher’s motion to revoke, the court found that Fountain had
    violated its prior orders three times. First, she failed to “provide the required
    notice” that she was moving on June 22, 2012, when she mailed notice of the move
    to Katcher on June 18, 2012. Second, Fountain failed to inform the child’s current
    5
    school by May 15, 2012, that Katcher had permission to access the child there.
    Third, Fountain failed to post information to Our Family Wizard as required when
    she had told Katcher that the child was unavailable for lunch with Katcher on June
    6, 2012. The district court ordered that Fountain be committed in accordance with
    “the orders attached hereto as Exhibits A, B, and C.” A copy of the original May
    24, 2012 contempt order hand-labeled with an “A” followed the revocation order.
    On its second page, the attached contempt order provided that “punishment for the
    violation set out above is assessed at confinement in the Harris County Jail for a
    period of sixty (60) days.”
    Fountain filed an original petition for writ of habeas corpus seeking relief in
    this Court, raising five issues. We ordered her released on bond pending our
    determination of her request for relief.
    Contempt and Commitment Orders
    “Criminal contempt is punishment for past disobedience to a court order that
    constitutes an affront to the dignity and authority of the court.” In re Houston, 
    92 S.W.3d 870
    , 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).
    Civil contempt is remedial and coercive; release may be procured by compliance
    with the provisions of the court’s order. 
    Id. “Civil contempt
    proceedings are
    quasi-criminal in nature, and the contemnor is entitled to procedural due process
    throughout the proceedings.” 
    Id. at 876.
    Among the due process rights accorded is
    6
    the right to reasonable notice of each allegedly contumacious act. 
    Id. Due process
    requires “full and complete notification” of the charges with a reasonable
    opportunity to meet them by defense or explanation. 
    Id. In addition,
    criminal
    contempt requires proof beyond a reasonable doubt. Id.; see Ex parte Chambers,
    
    898 S.W.2d 257
    , 259 (Tex. 1995). In order to support a judgment of contempt, the
    underlying decree must set forth the terms of compliance in “clear, specific and
    unambiguous terms” so that the person charged with obeying the order will know
    exactly what duties and obligations are imposed on her. 
    Chambers, 898 S.W.2d at 260
    ; 
    Houston, 92 S.W.3d at 877
    . The order of contempt may not be susceptible to
    more than one interpretation. 
    Houston, 92 S.W.3d at 877
    .
    “Due process requires a court, before imprisoning a person for violating an
    earlier order, to sign a written judgment or order of contempt and a written
    commitment order.” Ex parte Shaklee, 
    939 S.W.2d 144
    , 145 (Tex. 1997) (per
    curiam) (citing Ex parte Barnett, 
    600 S.W.2d 252
    , 256 (Tex. 1980)).             The
    contempt order must clearly state in what respect the court’s earlier order has been
    violated. Id.; see also Ex parte Edgerly, 
    441 S.W.2d 514
    , 516 (Tex. 1969) (order
    or other means of notification “must state when, how, and by what means the
    defendant has been guilty of the alleged contempt”). Complementing this due
    process requirement, the Texas Family Code mandates that motions for
    enforcement and orders confining someone for violating a court’s enforcement
    7
    order must state “the manner of the respondent’s noncompliance.” TEX. FAM.
    CODE ANN. §§ 157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an order
    imposing incarceration for criminal contempt must contain findings identifying
    “the date of each occasion when the respondent’s failure to comply with the order
    was found to constitute criminal contempt.”2 
    Id. § 157.166(b).
    Standard of Review of Commitment Order
    A commitment order is subject to collateral attack in a habeas corpus
    proceeding. In re Henry, 
    154 S.W.3d 594
    , 596 (Tex. 2005) (per curiam); see TEX.
    2
    Family Code section 157.166 provides:
    (a)    An enforcement order must include:
    (1)   in ordinary and concise language the provisions
    of the order for which enforcement was
    requested;
    (2)      the acts or omissions that are the subject of the
    order;
    (3)      the manner of the respondent’s noncompliance;
    and
    (4)      the relief granted by the court.
    (b)    If the order imposes incarceration or a fine for criminal
    contempt, an enforcement order must contain findings
    identifying, setting out, or incorporating by reference the
    provisions of the order for which enforcement was requested
    and the date of each occasion when the respondent’s failure to
    comply with the order was found to constitute criminal
    contempt.
    (c)    If the enforcement order imposes incarceration for civil
    contempt, the order must state the specific conditions on
    which the respondent may be released from confinement.
    TEX. FAM. CODE ANN. § 157.166 (Vernon 2008).
    8
    GOV’T CODE ANN. § 22.221(d) (granting appellate courts power to issue writs of
    habeas corpus). The purpose of the habeas corpus proceeding is not to determine
    the guilt or innocence of the relator; rather, the purpose is only to determine
    whether she has been unlawfully restrained. Ex parte Gordon, 
    584 S.W.2d 686
    ,
    688 (Tex. 1979). We presume that the contempt order is valid. In re Turner, 
    177 S.W.3d 284
    , 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). But we
    will issue the writ if the trial court’s contempt order is void because it is beyond
    the court’s power or the court did not afford the relator due process of law. 
    Id. (citing Henry,
    154 S.W.3d at 596).
    The relator bears the burden of showing that she is entitled to relief. 
    Id. In reviewing
    the record, we do not weigh the proof; rather, we determine only if the
    contempt order is void because, for example, the relator has been confined without
    a proper hearing or with no evidence of contempt to support her confinement.
    
    Chambers, 898 S.W.2d at 259
    –60.
    Validity of Commitment Order
    Here, the trial court’s order committed Fountain to jail as punishment for
    past violations of the court’s May 24, 2012 contempt order.         Therefore, the
    commitment order is an order of criminal contempt. See 
    Houston, 92 S.W.3d at 876
    n.2.
    9
    In her petition, Fountain points out numerous deficiencies and errors in the
    revocation motion and order that committed her to jail for contempt. She argues
    that two of the contempt violations are improper because the commitment order
    does not state the manner in which she failed to comply with the prior court orders,
    as required by due process and the Texas Family Code. See TEX. FAM. CODE ANN.
    § 157.166(a)(3); 
    Shaklee, 939 S.W.2d at 145
    (“The contempt order must clearly
    state in what respect the court’s earlier order has been violated.”) (citation
    omitted).   Fountain argues that the remaining contempt violation is improper
    because the trial court found that she violated a provision in the court’s order that
    required compliance before the court even signed the order imposing that particular
    obligation. See 
    Chambers, 898 S.W.2d at 262
    (contemnor cannot be held in
    contempt of court for actions that predate when court’s order is reduced to
    writing).
    Because I find these arguments dispositive in determining that the
    commitment order is void, I would not reach Fountain’s other issues.
    I.     Deficiencies in the Revocation Motion and Order
    While the commitment order states that Fountain failed to comply with
    several provisions of prior court orders, the order does not state the manner of her
    noncompliance. The order states:
    Violation 1. On June 18, 2012, respondent mailed to movant a notice
    that as of June 22, 2012, her residence and that of the child was
    10
    changed to an address in Galveston County. This does not provide the
    required notice.
    This violation was accompanied by a copy of the text of the October 18, 2011
    agreed order that required the parties to inform each other of changes to the child’s
    current address within sixty days or within five days of learning of a change of
    address if the party did not know of the change in enough time to meet the sixty-
    day requirement. For the other violation, the order states:
    Violation 4. Respondent has interfered with movant’s lunches with
    the child at school by violation of the order concerning posting
    information on Our Family Wizard. Movant had scheduled lunch
    with the child at school for June 6, 2012; respondent notified movant
    that the child would not be at school all that week. Respondent
    changed this schedule, and notified movant — at lunch time on June
    8, 2012 — that in fact he had been at school all that week, except for
    the Wednesday movant had scheduled. Respondent failed to post this
    change timely, presumably to prevent movant’s being able to
    reschedule and have lunch with the child a different day of the week.
    This language is quoted verbatim from Katcher’s motion to revoke. Preceding the
    violation, the court’s May 24, 2012 modification order is quoted, which required
    that each party promptly post:
    b. knowledge that a child will not be attending a previously scheduled
    extracurricular activity — immediately, or as soon as practicable
    under the circumstances; but no less than eight hours; . . .
    f. any other changes — within thirty-six hours of the change.
    These findings do not state the manner of Fountain’s noncompliance. In the
    first violation, stating that Fountain had failed to report that she was moving with
    11
    the child to Galveston County, the findings do not mention how Fountain failed to
    notify Katcher. Did the court find that Fountain had known when she was moving
    earlier, and so it found that she had failed to notify Katcher within the five-day
    time limit imposed by the October 18, 2011 order? Or did the court find that
    Fountain had known she was planning to move much earlier, and thus she failed to
    notify Katcher sixty days before the move as the October 18, 2011 order required?
    In the other violation, noting that Fountain had failed to update the Our
    Family Wizard program on the week Katcher attempted to visit the child at lunch,
    the findings again fail to state how Fountain had violated the May 24, 2012
    modification order. Did she violate the modification order when she reported to
    Katcher that the child would be gone from school all week but then two days later
    reported he had been in school some days that week? The earlier order did not
    require her never to change the child’s itinerary, only to report changes to the
    Family Wizard program. So, did Fountain fail to update the program at all? Or
    did she fail to update the program within the thirty-six hour time limit? For both
    violations, on what date did Fountain fail to comply with the previous orders? See
    
    id. (requiring order
    to identify date of each violation found to constitute contempt).
    The face of the commitment order does not answer these questions.
    The commitment order is insufficient because these findings of violations of
    prior orders are unclear. See 
    Houston, 92 S.W.3d at 877
    . The contempt order
    12
    must spell out exactly what duties and obligations are imposed and what the
    contemnor can do to purge the contempt. 
    Id. (citing Ex
    parte Proctor, 
    398 S.W.2d 917
    , 918 (Tex. 1966)). Generally, in the contempt context, the order or motion
    must be clear and unambiguous, which means the order or motion must be capable
    of only one reasonable interpretation. 
    Chambers, 898 S.W.2d at 260
    . Although the
    revocation motion and the subsequent commitment order listed dates and described
    Fountain’s actions, these documents are amenable to multiple reasonable
    interpretations as to how or even whether Fountain had violated the earlier orders.
    See 
    id. (“A court
    order is insufficient to support a judgment of contempt only if its
    interpretation requires inferences or conclusions about which reasonable persons
    might differ.”) (emphasis in original) (citing Ex parte MacCallum, 
    807 S.W.2d 729
    , 730 (Tex. 1991)). This is fatal to the commitment order because Fountain
    lacked the requisite notification of how to purge her contempt and how she might
    avoid violating court orders in the future.      See 
    Shaklee, 939 S.W.2d at 145
    (invalidating contempt order for failing to specify when contemnor violated earlier
    orders); Ex parte Blasingame, 
    748 S.W.2d 444
    , 446–47 (Tex. 1988) (invalidating
    contempt order punishing couple for taking action that they reasonably interpreted
    as not violating prior orders).
    The majority states that Fountain “wrongly assumes that Katcher’s motion to
    revoke and the trial court’s revocation order must satisfy all of the procedural
    13
    safeguards for an enforcement motion under [Family Code] chapter 157, as if a
    separate allegation, finding, and sentence for contempt of court were at issue.”
    Slip Op. at 12. The majority then cites several cases for the proposition that a
    motion to revoke the suspension of commitment actually “functions as a separate
    enforcement motion,” and is therefore subject to chapter 157’s procedural
    requirements, including section 157.166’s requirement that the contempt order
    specifically state the manner of the contemnor’s noncompliance with a previous
    court order, when the trial court, in a revocation proceeding, makes additional
    contempt findings and imposes a different punishment. Slip Op. at 12–13. The
    majority concludes that these cases are distinguishable and that chapter 157’s
    procedural requirements are inapplicable, because, here, when the trial court
    revoked the suspension of Fountain’s commitment it “did not enter additional
    findings of contempt,” but instead it imposed the “original sentence” for the
    “original, admitted episodes of contempt.” Slip Op. at 13.
    The majority justifies its holding by stating,
    In other cases, these [procedural] safeguards in fact have been applied
    under circumstances when a party has been found in contempt and
    sentenced, the commitment has been suspended subject to compliance
    with specified conditions, and then in further proceedings to revoke
    the suspension of commitment a trial court made additional findings
    of contempt and imposed a different punishment.               In such
    circumstances, with new allegations of contempt and enhanced
    sanctions, the motion to revoke does not merely invoke a previously
    rendered judgment of contempt, but the new motion instead functions
    as a separate enforcement motion for purposes of chapter 157.
    14
    Slip Op. at 12. The majority reasons that because Katcher “did not request and the
    trial court did not enter additional findings of contempt,” but “merely enforced the
    provisions of its own suspended commitment order,” “subchapter D of chapter 157
    and its detailed procedures applicable to an original enforcement hearing” do not
    apply. Slip op. at 13. The majority cites no authority for its holding. Rather, it
    refuses to follow established authority on allegedly distinguishable factual
    grounds. I, therefore, take the majority to be making its own law without authority
    and in conflict with established law.
    I disagree that the procedural safeguards applicable to enforcement motions
    and orders are not applicable here. And I disagree that there are material factual
    distinctions between this case and the prior cases in which the law has been
    established.
    The original May 24, 2012 contempt order found Fountain in contempt for
    violating the provision of the October 18, 2011 agreed order requiring her to
    execute all necessary releases to permit Katcher to obtain health-care information
    concerning the child. The court ordered Fountain confined for sixty days in the
    Harris County Jail and ordered her to pay $5,000 to Katcher in attorney’s fees, but
    the court then suspended the commitment pursuant to Fountain’s compliance with
    the October 18, 2011 agreed order and the May 24, 2012 modification order. In
    the commitment order, which revoked the suspension of Fountain’s commitment,
    15
    the court ordered that Fountain be confined for sixty days in the Harris County Jail,
    that Fountain pay $5,000 to Katcher, as ordered in the May 24, 2012 contempt
    order, and that Fountain pay, “in addition to the attorney’s fees and costs assessed
    in the order suspending commitment signed on May 24, 2012,” an additional
    $4,379 in attorney’s fees and costs to Katcher’s attorney.
    The court also found that Fountain violated the October 18, 2011 agreed
    order by not “provid[ing] the required notice” that she and the child were moving
    to Galveston County and the May 24, 2012 modification order by failing to notify
    the child’s school of Katcher’s access and by failing to timely update Our Family
    Wizard. The commitment order thus identified additional violations of ongoing
    obligations without specifying how Fountain failed to comply with these
    obligations and imposed a greater punishment than the original contempt order.
    See 
    Houston, 92 S.W.3d at 877
    (contempt order must spell out duties and
    obligations imposed and what contemnor can do to purge contempt). Thus, the
    commitment order was not clear and unambiguous, as required for a holding of
    contempt. See 
    Chambers, 898 S.W.2d at 260
    .
    I would conclude that the commitment order is functionally equivalent to an
    original enforcement order, and, therefore, Family Code chapter 157’s procedural
    safeguards, including section 157.166(a)’s requirement that the enforcement order
    state the manner of the contemnor’s noncompliance, apply equally to this
    16
    proceeding. See Ex parte Durham, 
    708 S.W.2d 536
    , 537–38 (Tex. App.—Dallas
    1986, orig. proceeding) (“The purpose of this commitment order is to enforce the
    punishment provisions imposed by the original order holding relator in contempt.
    Consequently, we hold that this commitment order is an ‘enforcement order’ under
    [the predecessor to section 157.166].”); see also 
    Houston, 92 S.W.3d at 876
    (holding that civil contempt proceedings are quasi-criminal, entitling contemnor to
    procedural due process “throughout the proceedings”).          I would hold that
    procedural statutory and constitutional due process safeguards were violated in this
    case. See TEX. FAM. CODE ANN. § 157.166(a)(3); 
    Shaklee, 939 S.W.2d at 145
    ;
    
    Houston, 92 S.W.3d at 875
    –77. Therefore, the commitment order is void. See
    
    Houston, 92 S.W.3d at 875
    –77.
    II.   Confinement for Violating Court’s Command Before Court Issued
    Order Imposing Obligation
    Even if the trial court had clearly stated the manner of Fountain’s
    noncompliance in the commitment order, the order would still be void for finding
    Fountain in contempt of court for violating the court’s May 24, 2012 order on a
    date predating the date on which the court actually signed that order.          See
    
    Chambers, 898 S.W.2d at 262
    (“A contemnor cannot be held in constructive
    contempt of court for actions taken prior to the time that the court’s order is
    reduced to writing.”). It is the written order, signed by the court, that evinces a
    party’s rights and duties, not oral admonitions at the hearing. In re Sellers, 982
    
    17 S.W.2d 85
    , 87 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding) (citing Ex
    parte Price, 
    741 S.W.2d 366
    , 367 (Tex. 1987)).
    The second violation in the contempt order was for Fountain’s failure to
    inform the child’s school about Katcher’s rights of access to the child by May 15,
    2012. The underlying order giving rise to this obligation, however, was signed on
    May 24, 2012, nine days after the date on which Fountain allegedly violated the
    order. Under Texas law, this invalidates the commitment order. See 
    Chambers, 898 S.W.2d at 262
    ; 
    Sellers, 982 S.W.2d at 87
    ; see also Dunn v. Street, 
    938 S.W.2d 33
    , 35 n.3 (Tex. 1997) (per curiam) (voiding contempt judgment because
    contemnor “did not violate a written order of the trial court”).
    The trial court assessed a punishment of sixty days’ confinement and
    required the payment of attorney’s fees for all of the contumacious acts it found.
    This means that even if only one of the violation findings was invalid, the entire
    order would be void.3 Ex parte Davila, 
    718 S.W.2d 281
    , 282 (Tex. 1986) (per
    curiam) (“If one punishment is assessed for multiple acts of contempt, and one of
    those acts is not punishable by contempt, the entire judgment is void”); Ex parte
    Sealy, 
    870 S.W.2d 663
    , 667 (Tex. App.—Houston [1st Dist.] 1994, orig.
    proceeding) (holding same). The commitment of a person to jail on a void order
    violates constitutional due process. See 
    Gordon, 584 S.W.2d at 688
    (“Where the
    3
    Because none of the three acts in the commitment order will support a finding of
    contempt, I would not reach Fountain’s other issues.
    18
    judgment ordering confinement is ‘void,’ the confinement is illegal and the relator
    is entitled to discharge.”); In re Alexander, 
    243 S.W.3d 822
    , 827 (Tex. App.—San
    Antonio 2007, orig. proceeding) (“A writ of habeas corpus will issue when the
    relator has not been afforded due process, or when the order requiring confinement
    is void.”).
    Conclusion
    I would hold that the trial court abused its discretion in revoking its order
    suspending Fountain’s commitment to jail and that the commitment order is void.
    Accordingly, I would grant the petition for writ of habeas corpus, and I would
    order Fountain released from her bond and discharged.
    Evelyn V. Keyes
    Justice
    Panel consists of Justices Keyes, Massengale, and Brown.
    Justice Keyes, dissenting.
    19