in Re Stacie Lynn Depeau ( 2014 )

Petition for Writ of Mandamus Conditionally Granted, in Part, and Denied,
in Part, and Memorandum Opinion filed October 2, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00693-CV
IN RE STACIE LYNN DEPEAU, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
245th District Court
Harris County, Texas
Trial Court Cause No. 2011-48772
MEMORANDUM OPINION
On August 25, 2014, relator Stacie Lynn Depeau filed a petition for writ of
habeas corpus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator seeks relief from an August 22, 2014 contempt
and commitment order issued by the Honorable Roy L. Moore, presiding judge of
the 245th District Court of Harris County. We construe relator’s petition as a
petition for writ of mandamus, and conditionally grant it, in part, and deny it, in
part.
I. BACKGROUND
Relator and real party in interest, Jon Scott Colen, were divorced pursuant to
a final divorce decree signed by the trial court on June 11, 2013. The decree
named relator and Colen joint managing conservators, with relator having the
exclusive right to designate the primary residence of their two children.
On May 2, 2014, Colen filed a motion for enforcement of possession of and
access to the children and subsequently, a first amended motion for enforcement,
alleging twenty-nine violations of the divorce decree by relator. The trial court
held an evidentiary hearing on May 29, 2014. The hearing was recessed until
August 1, 2014, at which time the trial court orally rendered judgment, finding
relator in contempt of the divorce decree on twenty of the twenty-nine alleged
violations. The trial court ordered relator to appear on August 22, 2014, for
commitment.
The trial court signed two orders on August 22, 2014. One order is entitled
“Order Holding Respondent in Contempt for Separate Violations of the Decree
Signed on June 11, 2013 and for Commitment.” The other order is entitled
“Enforcement Order.” Both orders were filed at 11:35 a.m. on the same day they
were signed. Both orders sentenced relator to 180 days in jail for each violation,
sentences to run concurrently, and further directed that relator serve fifteen days in
jail and that the remaining 165 days be probated. Relator was taken into custody
that same day.
2
Relator filed her petition for writ of habeas corpus in this court on August
25, 2014, challenging her restraint in two issues. In the first issue, relator claims
the commitment order violates her due process rights because it does not
unambiguously state the manner in which she violated the underlying order. In the
second issue, relator contends the motion for enforcement does not comply with
the notice requirements to satisfy due process.
Subsequently to the filing of her petition in this court, Colen advised this
court that relator was released from her confinement in jail and is serving her
probated sentence.
II. RESTRAINT OF LIBERTY
As an initial matter, Colen contends that, because relator is no longer
incarcerated, her request for habeas relief is moot and her petition should be
dismissed for lack of jurisdiction.
In a habeas corpus proceeding, the relator must show that she is under
restraint of liberty. In re Pierre, 50 S.W.3d 554, 558 (Tex. App.—El Paso, 2001,
orig. proceeding); In re Ragland, 973 S.W.2d 769, 771 (Tex. App.—Tyler 1998,
orig. proceeding). Actual confinement is not necessary for the relator to be under
restraint of liberty. See Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig.
proceeding) (holding that relator’s liberty was restrained when he was released
from jail on bail or personal bond because incarceration was not speculative
possibility). Courts have extended the meaning of restraint to include some
tangible restrictions imposed by community supervision.1 On the other hand,
1
See, e.g., Ex parte Brister, 801 S.W.2d 833, 834−35 (Tex. 1990) (orig. proceeding)
(holding that probation conditioned on payment of attorney’s fees, monthly supervisory fees,
3
probation without any type of tangible restraint of liberty is not sufficient for
habeas corpus relief.2
Here, the Section 8 of the “Enforcement Order” provides with respect to the
probated sentence:
The unserved 165 days of the 180 day sentence announced by this
court is probated for 5 years under the following conditions: 1. Stacie
Lynn Depeau complies with the order of this court dated June 11,
2013, or as modified by California order; and 2. Stacie Lynn Depeau
complies with and appears at all compliance hearings.3
Relator is required to comply with the divorce decree and to attend all
compliance hearings. The conditions of relator’s probation are more akin to those
participation in outpatient family counseling, and submission to sixty days’ house arrest and
electronic monitoring was sufficient to constitute restraint of liberty); Ragland, 973 S.W.2d at
771 (holding that probation conditioned upon relator’s performance of weekly community
service over the course of a year under the supervision of the county probation department was
sufficient restraint of liberty); Ex parte Duncan, 796 S.W.2d 562, 564 (Tex. App.—Houston [1st
Dist.] 1990, orig. proceeding) (holding that probated sentence conditioned upon seeing probation
officer and not traveling outside county was sufficient restraint of liberty).
2
See, e.g., In re Parker, No. 14-08-01070-CV, 2008 WL 5132558, at *1 (Tex. App.—
Houston [14th Dist.] Dec. 4, 2008, orig. proceeding) (mem. op.) (holding that there was not
sufficient restraint of liberty where only the condition of probated sentence was to comply with
the terms of the divorce decree without any tangible restraint of liberty); Ex parte Hughey, 932
S.W.2d 308, 310−11 (Tex. App.—Tyler 1996, orig. proceeding) (holding that there was not
sufficient restraint of liberty where the relator was not required to report to a community
supervision officer or submit to visits by such officer, was not subject to house arrest, and was
not confined geographically, but was merely required to pay child support and attorney’s fees
arrearages incurred as a result of his failure to comply with the court’s orders, comply with the
terms of the orders, and pay related attorney’s fees and court costs).
3
The “Order Holding Respondent in Contempt for Separate Violations of the Decree
Signed on June 11, 2013 and for Commitment” directed with respect to the probated sentence:
“The remaining 165 days is [sic] probated pursuant to the terms set forth in the Enforcement
Order in Section 8.”
4
in Hughey and Parker. Therefore relator is not under restraint and is not entitled to
habeas relief.
Our analysis, however, does not end here. We may construe relator’s habeas
petition as a mandamus petition, and address her challenges to the contempt order.4
In a habeas corpus proceeding, a writ will issue if the trial court’s contempt order
is void, either because it is beyond the trial court’s power or because the relator has
not been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)
(orig. proceedings) (per curiam). Similarly, the relator is entitled to mandamus
relief when the trial court renders a void order. In re Stearn, 436 S.W.3d 41, 46
(Tex. App.—Houston [14th Dist.] 2014, orig. proceeding). Thus, even if relator’s
liberty is not restrained by the conditions of her probation we, nonetheless, address
her challenges to the contempt order in a mandamus proceeding just as we would
in a habeas proceeding.
III. SUFFICIENCY OF NOTICE PURSUANT TO THE CONTEMPT ORDER
In her first issue, relator asserts that the commitment order violates her due
process rights because it does not unambiguously state the manner in which she
4
See In re Spates, No. 14-14-00603-CV, 2014 WL 4262197, at *2 (Tex. App.—Houston
[14th Dist.] Aug. 28, 2014, orig. proceeding) (mem. op.) (construing habeas petition as
mandamus petition where the relator filed habeas petition prior to commencement of
confinement to jail); In re Easton, 203 S.W.3d 438, 441 (Tex. App.—Houston [14th Dist.] 2006,
orig. proceeding) (perceiving no jurisdiction to entertain an application for writ of habeas corpus,
but would construe it as a mandamus petition where there was no restraint of liberty); see also In
re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam) (“Contempt orders
that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only
possible relief is a writ of mandamus.”); Snodgrass v. Snodgrass, 332 S.W.3d 653, 660 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (explaining that an appellate court may review a
contempt order in a habeas corpus proceeding if there is a current restraint on the relator’s
liberty, or in a mandamus proceeding if there is no such restraint).
5
violated the underlying order. Section 157.166 of the Texas Family Code specifies
the required contents of an enforcement order:
(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.
Tex. Fam. Code Ann. § 157.166(a), (b) (West 2014).
Relator includes in the mandamus record the “Order Holding Respondent in
Contempt for Separate Violations of the Decree Signed on June 11, 2013 and for
Commitment.” This order does not refer to the relevant provisions of the divorce
decree and it does not list any of the violations the trial court found relator to have
committed. If this were the “contempt” order, it would not satisfy section
157.166’s requirements.
Colen, however, included the “Enforcement Order” in the appendix to his
response.5 Relator does not challenge the “Enforcement Order” as being
5
Relator does not mention or refer to the “Enforcement Order” in her petition. In her
reply, relator states that the “Enforcement Order” was not on the online records of the Harris
6
insufficient to satisfy notice requirements. However, relator complains that, to the
extent the “Enforcement Order” is an order for her commitment at 9:00 a.m., on
August 22, 2014, it is improper because it was not signed until after it was filed at
11:35 a.m., on August 22, 2014. Without citing any authority, relator contends that
she cannot be served with a “corrected order” “to make good on her previously
restrained liberty.” Texas courts have held that a corrected contempt and
commitment order issued weeks after the trial court’s contempt finding is not
sufficiently close in time to the finding of contempt to satisfy due process
requirements.6
At the August 1, 2014 hearing, the trial court orally announced its findings
of relator’s violations of the divorce decree. The trial court directed Colen’s
attorney to draft the order in accordance with its oral pronouncement, and to set the
entry and commitment for 9:00 a.m., on August 22, 2014. The “Enforcement
Order,” or the “corrected order” as relator refers to it, was signed on August 22,
2014—the same day as the “Order Holding Respondent in Contempt for Separate
Violations of the Decree Signed on June 11, 2013 and for Commitment”—the
County District Clerk as of the morning of September 3, 2014, and no such order had been
served on her. The copy of the “Enforcement Order” included in Colen’s appendix was certified
on August 27, 2014, and it appears that it was obtained from the District Clerk’s online records.
6
See Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex. 1994) (orig. proceeding) (per
curiam) (holding that second commitment order issued more than two weeks after contempt
hearing was void because it was not signed sufficiently close in time to trial court’s
pronouncement of contempt to satisfy due process requirements); Spates, 2014 WL 4262197, at
*4 (holding that corrected contempt order signed within weeks after habeas relief was granted
pointing out defect in previous order was not signed sufficiently close in time to pronouncement
of contempt); In re Houston, 92 S.W.3d 870, 878 (Tex. App.—Houston [14th Dist.] 2002, orig.
proceeding) (“The trial court may not modify a contempt judgment weeks after the original
judgment has been entered and relator has sought habeas relief.”).
7
order about which relator complains in this proceeding. From reading the
reporter’s record of the August 22, 2014, it appears that the trial court signed the
“Enforcement Order” at the hearing. The trial court was clear that the contempt
order had to be signed the same day the commitment was to begin. Having been
signed the same day relator’s commitment was to begin, the “Enforcement Order”
was signed sufficiently close in time to pronouncement of relator’s contempt and
her commitment. We overrule relator’s first issue.
IV. SUFFICIENCY OF NOTICE OF ALLEGATIONS IN THE MOTION FOR
ENFORCEMENT
In her second issue, relator complains that the commitment order is void
because the neither motion for enforcement nor the underlying order complies with
the Family Code.
A. Requirements for Sufficient Order and Motion for Enforcement
Relator generally challenges each of the twenty violations on the basis that
the motion for enforcement did not direct her to any “command language” in the
order. 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 on her. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig.
proceeding). Whether an order is enforceable by contempt depends on whether the
order is definite and certain. Ex parte Reese, 701 S.W.2d 840, 841 (Tex. 1986)
(orig. proceeding). The focus is on the wording of the judgment itself. Id. 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
8
S.W.2d at 260. Only reasonable alternative constructions will 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 void.” Id.
Relator also generally challenges each violation on the ground that the
motion for enforcement did not, in ordinary and concise language, identify the
provision of the order allegedly violated and sought to be enforced, and state the
manner of relator’s alleged noncompliance, or the date of the offense. The purpose
of a motion for enforcement is to provide the contemnor with proper notice of the
allegations of contempt for which he must prepare a defense at the hearing on the
motion. Ex parte Conoly, 732 S.W.2d 695, 698 (Tex. App.—Dallas 1987, orig.
proceeding).
Section 157.002 of the Texas Family Code, which sets forth the
requirements of a motion for enforcement, provides, in relevant part:
(a) A motion for enforcement must, in ordinary and concise language:
(1) identify the provision of the order allegedly violated and
sought to be enforced;
(2) state the manner of the respondent’s alleged noncompliance;
(3) state the relief requested by the movant; and
(4) contain the signature of the movant or the movant’s
attorney.
* * *
(c) A motion for enforcement of the terms and conditions of
conservatorship or possession of or access to a child must include the
9
date, place, and, if applicable, the time of each occasion of the
respondent's failure to comply with the order.
Tex. Fam. Code Ann. § 157.002(a), (c) (West 2014).
Relator specifically relies on subsection (c), which requires that the motion
for enforcement contain the dates of the alleged violations in addition to the
requirements listed in subsection (a). Colen recognizes that relator’s complaint is
that the motion for enforcement does not comply with subsection (c) and that
subsection requires that the motion for enforcement include the date of the
violation. A review of the motion for enforcement reflects that it does not include
the dates on which several of the offenses occurred. Colen does not address the
subsection (c) requirement that the motion for enforcement contain the date of the
violation, but contends that notice requirement was satisfied through the elements
of subsection (a).
As addressed below, because of the failure to include the dates some of the
violations were committed, not all twenty contempt findings may be upheld. See
Ex parte Arnold, 926 S.W.2d 622, 624 (Tex. App.—Beaumont 1996, orig.
proceeding) (holding the motion for enforcement gave sufficient notice regarding
payment of medical expense because the allegations included the portion of the
order violated, amount owed as provided in the order, and the date of each
violation (citing Tex. Fam. Code Ann. § 157.002)). Such deficiency, however,
does not make the entire contempt order void.
If one punishment is assessed for more than one act of contempt, and one act
is not punishable by contempt, the entire judgment is void. Henry, 154 S.W.3d at
598; In re Gabbai, 968 S.W.2d 929, 931 (Tex. 1998) (orig. proceeding) (per
10
curiam). Where the trial court lists each failure separately and assesses a separate
punishment for each failure, only the invalid portion is void; the invalid portion
may be severed, and the valid portion retained. In re Hall, 433 S.W.3d 203, 207
(Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); see also In re Davis,
305 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.] orig. proceeding) (holding
that void portions of the contempt order did not render the entire order void
because the trial court listed the contempt sentences separately). Here, the trial
court found twenty separate violations of the divorce decree by relator and
assessed punishment separately for each violation, to run concurrently.
Relator has challenged all twenty contempt findings. In order for the entire
contempt order to be found void, relator must establish that each of the twenty
findings of contempt are void under this issue, otherwise we must uphold the
contempt order. See Hall, 433 S.W.3d at 207 (striking void portion of commitment
order and leaving remainder intact). We address the twenty contempt findings
below.
B. Analysis of Violations
Violation 1
Respondent has consistently failed to notify and inform Petitioner of
the children’s medical appointments through Our Family Wizard.
Specifically, Respondent failed to notice Petitioner of [T.R.C.]’s
orthodontist appointments on March 25, 2014 and April 8, 2014.
Petitioner is unaware of other medical appointments for [T.R.C.]
because of the failure of Respondent to notice him as ordered, but
believes there are multiple other occasions when she has violated the
Agreed Decree of Divorce as it pertains to this notice requirement.
11
The decree grants relator “the exclusive right to consent to medical, dental,
and surgical treatment involving invasive procedures, after informing the other
party via Our Family Wizard.” Relator has not argued any other reasonable
construction of this language, which requires relator to inform him via Our Family
Wizard prior to the dental treatment. The motion alleged and the trial court found
that relator failed to give Colen notice of T.R.C.’s orthodontist appointments on
March 25, 2014, and April 8, 2014. The motion for enforcement satisfied the
requirements of section 157.002 by advising relator of the provision she violated,
how she violated it, and the dates on which she violated it. The trial court did not
abuse its discretion by finding relator in contempt of Violation 1.
Violation 2
Respondent has consistently failed to notify and inform Petitioner as
to psychiatric and psychological treatment of the children through Our
Family Wizard. Specifically, and by her own admission in the
affidavit attached to her ex-parte Request for Domestic Violence
Restraining Order, [T.R.C.] “regularly sees Jessica St. Clair, MFT, for
therapy and anxiety.” Petitioner is aware of [T.R.C.]’s appointment
with Jessica St. Clair on December 17, 2013 only as a result of
Respondent’s affidavit attached to the ex-parte Request. He has not
received notice from Respondent as ordered.
The divorce decree gives relator the “exclusive right to consent to
psychiatric and psychological treatment of the children, after informing the other
party via Our Family Wizard.” Relator has not put forth a reasonable alternative
construction of the language of the decree, requiring her to notify Colen before
such appointments. The motion alleged and the trial court found that relator failed
to notify him of T.R.C.’s appointment with the therapist on December 17, 2013.
The motion for enforcement satisfied the requirements of section 157.002 by
12
advising relator of the provision she violated, how she violated it, and the date on
which she violated it. The trial court did not abuse its discretion by finding relator
in contempt of Violation 2.
Violation 3
Respondent has consistently failed to notify Petitioner, as ordered, of
the children’s school events, school plays, extracurricular activities
and school pictures through Our Family Wizard, including notice of
the children’s PTO/PTA/Open House dates and times and notice of
[T.R.C.]’s field trip to the Gold Rush and [A.M.C.]’s field trip to
Knott’s Berry Farm on or about the last couple of days of her school
in June 2014. Specifically, Respondent failed to notify Petitioner of
the Parent Conference Day on August 7, 2013 through Our Family
Wizard.
The divorce decree grants relator:
the exclusive right to make decisions concerning the children’s
education, after informing the other party via Our Family Wizard;
(See Special Paragraph below entitled “Additional Orders—
Education”).
The “Additional Orders—Education” paragraph provides as follows:
. . . . The Court named STACIE DEPEAU as the parent to have
exclusive decision making powers in education, and having directed
STACIE DEPEAU to notify JON COLEN via Our Family Wizard the
precise dates, days and times of the following:
 Official School Schedule;
 Official Year-Round Holiday and School Break Schedule;
 All report cards and/or other grading mechanisms;
 School plays or other school activities regardless of importance;
13
 School pictures taken and received by a parent.
Relator argues, with regard to the parent-teacher conference, there is no
reference to any order that requires relator to send notice of a parent-teacher
conference. Relator admits that it could be considered under “School plays and
other school activities regardless of importance,” but relator argues “so too would
the school’s schedule for cafeteria disinfecting.” Thus, relator argues the order is
too vague to be enforced.
The only reasonable interpretation of the order requires relator to notify
Colen of a parent-teacher conference. See Chambers, 898 S.W.2d at 260
(explaining that only the existence of a reasonable, alternative construction
prevents the enforcement of the order). An order need not be full of superfluous
terms to be enforced. Id. Relator had sufficient notice of her obligation to notify
Colen of a parent-teacher conference.
Relator further argues that, should we find that the divorce decree is specific
enough to require that relator notify Colen of the parent-teacher conference, there
is no date or time required by order to perform the task of reporting the event on
Our Family Wizard. The two above-quoted sections of the divorce decree, when
read to together, require relator to provide notice prior to the event. Relator also
asserts that she does not know when she violated the decree. The motion,
however, specified that the parent-teacher conference took place on August 7,
2013. The motion for enforcement gave relator notice of the provision she
violated, how she violated it, and the date she violated.
14
As to the children’s field trips, the motion for enforcement gave relator
notice of the provision she violated and how she violated, but it did not state the
dates of the violations.
The trial court did not abuse its discretion by finding relator in contempt of
Violation 3 to the extent the finding applies to relator’s failure to notify Colen of
the parent-teacher conference. The trial court, however, abused its discretion by
finding relator in contempt of Violation 3 to the extent the applies to the children’s
field trips.
Violation 5
Respondent has not sent Petitioner notice of the children’s gymnastics
schedule, changes in that schedule, the names of their coaches and
dates of competitions through Our Family Wizard as ordered.
Violation 6
Respondent has not sent Petitioner notice of the children’s diving
schedule, changes in that schedule, the names of their coaches and
dates of competitions through Our Family Wizard.
Violation 7
Respondent has not sent Petitioner notice of [A.M.C.]’s involvement
in Krav Maga, her activity schedule, changes in that schedule, the
names of their coaches and dates of events/competitions through Our
Family Wizard as ordered.
Violation 8
Respondent has not sent Petitioner notice of [A.M.C.]’s involvement
in horseback riding, her horseback riding schedule, locations,
competitions or other related information through Our Family Wizard,
as ordered, despite Petitioner’s request for this information.
15
Violation 9
Respondent has not sent Petitioner notice of [T.R.C.]’s involvement in
violin, her lesson schedule, locations, competitions or other related
information through Our Family Wizard, as ordered, despite
Petitioner’s request for this information.
As quoted above, the divorce decree requires relator to notify Colen, through
Our Family Wizard, of the children’s school plays and or other school activities
regardless of importance. The motion for enforcement notified relator of the
provisions she violated and how she violated those provisions, but did not allege
the dates that relator did not give Colen notice of the children’s activities.
Therefore, the trial court abused its discretion by finding relator in contempt of
Violations 5, 6, 7, 8, and 9.
Violation 10
Respondent has named Petitioner on the children’s school records as
the father of the children, but has not listed Petitioner as an emergency
contact for the children and has informed the children’s school to list
Petitioner on the schools’ websites as a “Restrained Individual,”
which interferes with Petitioner’s access to school information and
physical visitation on the campuses.
The divorce decree requires that Colen be “named on all school records and
medical records [as] the father of the father of the children, and as contact in the
case of an emergency.” The motion alleged that relator did not list Colen as an
emergency contact, but, instead, asked the school to list Colen on the schools’
websites as a “Restrained Individual,” which interfered with his access to school
information and physical visitation on the campuses. The motion for enforcement
notified relator of the provision she violated and how she violated it, but did not
16
state the dates Colen was listed as a “Restrained Individual” or the dates relator’s
violations caused interference with Colen’s access to school information and visits
with physical visits to the campus. The trial court abused its discretion by finding
relator in contempt of Violation 10.
Violation 15
Respondent has failed to notify Petitioner within ten days of the
change in e-mail address and cell phone number change for [A.M.C.].
Additionally, Respondent failed to initially notify Petitioner of the
children’s e-mail address within 10 days of the date of divorce, as
ordered.
The divorce decree requires relator to:
a. provide the other conservator with the e-mail addresses and other
electronic communication access information for the children within
10 days after the Court signs this order;
b. notify the other conservator of any change in the email addresses or
other electronic communication access information not later than
twenty-four hours after the date the change takes effect; . . . .
Relators contends that, while there is an order requiring her to notify Colen
of changes in email addresses or other electronic communication access
information within twenty-four hours of a change taking effect, there is no order
providing for the violation of not notifying Colen of such changes within ten days
after taking effect. If relator does not provide such information within twenty-four
hours of the change taking effect, she still violates the provision if she has not
provided the information within ten days of any change. Instead, the problem with
the motion for enforcement is that it does not state the date of the violation.
17
Relator further states there is an order providing that each conservator is
required to provide the other conservator of the e-mail address for the children
“within 10 days after the Court signs this order,” but the terms of this order are not
the form of the allegation asserted. The divorce decree required relator to provide
Colen with the email addresses and other electronic communication access
information for the children within ten days of the court’s signing the divorce
decree, i.e., June 21, 2013. The motion for enforcement notified relator that she
had not provided Colen with the children’s e-mail address within 10 days of the
June 11, 2013 date of divorce, i.e., June 21, 2013. This is sufficient to satisfy due
process notice requirements.
The trial court did not abuse its discretion by finding relator in contempt of
Violation 15 to the extent the finding relates to relator’s failure to provide the
children’s email address within ten days of the court’s signing the divorce decree.
The trial court, however, abused its discretion by finding relator in contempt of
Violation 15 to the extent the finding relates to relator’s failure to notify Colen of
changes of email addresses.
Violation 16
Respondent failed to communicate with Dr. Barry Ross concerning
the reunification plan between Petitioner and [A.M.C.], which has
prevented the start of father-daughter sessions between Petitioner and
his daughter. Dr. Ross has sent communications stating that Petitioner
is ready to move forward with the reunification plan ordered by this
Court, and informed Respondent of the same, yet Respondent refuses
to make the child available for the first session.
The divorce decree states:
18
IT IS ORDERED that JON SCOTT COLEN shall seek and maintain
weekly therapeutic session with DR. JEREMY SAMUELSON or
other psychologist with the focus of treatment to be on anger
management and communication style in his capacity for empathy.
JON SCOTT COLEN must demonstrate significant improvement
before any joint therapy sessions with [A.M.C.] can begin. After it
has been demonstrated to Dr. Barry Ross (or another qualified
psychologist agreed to b[y] the parties that is in the children’s
insurance network) that JON SCOTT COLEN has made significant
improvement, as stated above, the therapeutic father-daughter sessions
shall begin in California with Dr. Barry Ross or another qualified
psychologist agreed to b[y] the parties that is in the children’s
insurance network. Once Dr. Barry Ross (or another qualified
psychologist agreed to b[y] the parties that is in the children’s
insurance network) determines that JON SCOTT COLEN has made
significant improvement, he shall contact STACIE LYNN DEPEAU
to schedule a session with the child, [A.M.C.], and thereafter conduct
father-daughter sessions as he deems appropriate. Once the father-
daughter sessions have progressed to the point that the psychologist
recommends visitation outside the therapy room, the modified
possession order should take effect immediately for [A.M.C.] The
Court feels that if improvement is not made within 6 joint sessions,
the parties may wish to revisit the issue with the Court.
The divorce decree provides that Dr. Barry Ross shall contact relator to
schedule the father-daughter sessions with Colen and A.M.C. as he deems
appropriate and thereafter conduct the sessions until he recommends that a
modified possession order take effect. The motion for enforcement notified relator
that she did not comply with this provision because she failed to communicate with
Dr. Ross even though Dr. Ross had sent communications to relator that Colen was
ready to move forward with the reunification plan. The motion for enforcement,
however, does not state on what date the violation occurred. The trial court abused
its discretion by finding relator in contempt of Violation 16.
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Violation 17
Respondent has consistently failed to make [A.M.C.] and [T.R.C.]
available for phone communication with Petitioner at the dates and
times provided for in the Agreed Final Decree of Divorce. Petitioner
has called during these prescribed times to discover that his phone
number is blocked or that no one answers the phone. Respondent has
also failed to ensure that the child returns Petitioner’s calls in a timely
matter [sic], if at all. Specifically, Petitioner has been unable to speak
with the children on February 8, 2014, November 7, 2013 and October
10, 2013, and unable to speak with A.M.C. on June 29, 2014, July 1,
2014 and July 3, 2014.
The divorce decree provides:
IT IS ORDERED that the conservators shall have electronic
communication with the children to supplement their periods of
possession as follows:
a. The children may telephone the other parent at any time.
b. The children may e-mail or contact by electronic means other than
telephone the other parent at any time.
c. The parent who is with the children shall make the children
available by telephone at the prescribed time so that the other parent
may talk to the children.
d. If a message is left from the parent who is not with the children, the
other parent shall assist the children in returning the call.
e. Reasonable time to call the children at the other parent’s home is
7:00 PM each Tuesday, Thursday and Saturday.
The divorce decree specifies the instruction for telephone contact with the
children. The motion for enforcement notified relator of the provisions she
violated, how she violated those provisions, and the dates she violated them. The
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trial court did not abuse its discretion by finding relator in contempt of Violation
17.
Violation 18
Respondent has failed to facilitate reasonable access for [A.M.C.] and
[T.R.C.] to e-mail communications from Petitioner sent to her through
Our Family Wizard, which is evidenced by the fact that Petitioner’s
messages have not been opened by the children.
The divorce decree provides that the children “shall have electronic
communication with the children to supplement their periods of possession.” One
means is “[t]he children may e-mail or contact by electronic means other than
telephone the other parent at any time.” The motion for enforcement notified
relator that she has not facilitated the children’s access to e-mails from Colen, but
does not mention the dates relator violated the divorce decree. The trial court
abused its discretion by finding relator in contempt of Violation 18.
Violation 19
Respondent has failed to provide Petitioner with the children’s health
insurance policy information, as ordered, and Petitioner is unable to
access the provider’s website for this information.
The relevant provision of the divorce decree states:
STACIE LYNN DEPEAU is ORDERED to furnish JON SCOTT
COLEN and the Office of the Attorney General Child Support
Division a true and correct copy of the health insurance policy or
certification and a schedule of benefits within thirty (30) days of the
signing of this order. STACIE LYNN DEPEAU is ORDERED to
furnish JON COLEN the insurance cards and any other forms
necessary for use of the insurance within thirty (30) days of the
signing of this order. STACIE LYNN DEPEAU is ORDERED to
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provide, within three (3) days of receipt by him, to JON SCOTT
COLEN any insurance checks, other payments, or explanations of
benefits relating to any medical expenses for the children that JON
SCOTT COLEN paid or incurred.
Relator asserts that she is left to guess what the allegations are against her.
According to relator, it is not clear whether Colen is complaining of the timing of
the release of the information, the manner of communication, or the content of the
information provided.
A plain reading of the motion for enforcement establishes that relator was
notified that she failed to provide Colen with the children’s health insurance policy
information within thirty days of the court’s signing the order, i.e., by July 11,
2013. There is nothing ambiguous about the allegation. The motion gave relator
notice of the provision she violated, how she violated the provision, and the date
she violated it. The trial court did not abuse its discretion by finding relator in
contempt of Violation 19.
Violation 20
Respondent has failed to assure privacy of communications for
[T.R.C.] when Petitioner calls, as ordered, and records and monitors
all phone and Our Family Wizard e-mail communications.
The divorce decree provides that each conservator shall, “if necessary
equipment is available, accommodate electronic communication with the child
with the same privacy, respect, and dignity accorded all other forms of access, at a
reasonable time and for a reasonable duration subject to any limitation provided in
this order.” The motion for enforcement notified relator of the provision of the
divorce decree violated and how she violated it, but it does not state the dates of
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the violations. The trial court abused its discretion by finding relator in contempt
of Violation 20.
Violation 22
Respondent failed to purchase the airline tickets for Petitioner’s 2013
summer visitation with [T.R.C.] as ordered, even though Petitioner
sent timely written notice of the dates and airport locations to
Respondent through Our Family Wizard.
The divorce decree states, in relevant part:
IT IS FURTHER ORDERED that STACIE LYNN DEPEAU shall
purchase in advance round trip airline tickets (including escort fees) to
be used by the child for the child’s flight to and from the airport near
the residence of JON SCOTT COLEN and STACIE LYNN
DEPEAU, for JON SCOTT COLEN’s visitation related to the Spring
School break, the Summer School break and the Fall School break.
Relator asserts that the relevant language regarding the purchase of airline
tickets by relator is not quoted or otherwise referenced in the motion; therefore, she
is “left to guess if she is accused of not buying the ticket time[ly], not paying the
escort fee, or not providing for an airport close enough to Colen’s residence.”
The divorce decree was attached to, and incorporated into, the motion for
enforcement,7 and requires relator to purchase T.R.C.’s flight for her summer break
visitation with Colen.8 The motion for enforcement provided relator with notice
about her failure to purchase tickets for T.R.C.’s summer visitation with Colen.
7
See In re Turner, 177 S.W.3d 284, 289 (Tex. App.—Houston [1st Dist.] 2005, orig.
proceeding) (motion for enforcement satisfied notice requirements where it referenced the
volume and page number in the trial court’s minutes in which the decree sought to be enforced
could be found).
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Although the motion alleged the violation was in relation to the summer 2013
visitation, there is no date specified as to when relator did not purchase the tickets.
The trial court abused its discretion by finding relator in contempt of Violation 22.
Violation 23
Respondent has made derogatory remarks about Petitioner to the
children and has allowed other persons to make derogatory remarks
about Petitioner in the presence of the children. Specifically,
Respondent has told the children that Petitioner has “threatened to kill
family members, including the children.” Additionally, the children
have access to their schools’ websites, where Petitioner is listed as a
“Restrained Individual,” which is blatantly derogatory towards
Petitioner and also derogatory towards his relationship as the
children’s father.
Pursuant to the divorce decree, relator and Colen:
are enjoined from making disparaging remarks about the other party
or allowing the children to remain in the presence of third parties
making disparaging remarks about the other party or their family.
The motion for enforcement notified relator of the provision violated and
that she violated that provision by (1) telling the children that Colen had
“threatened to kill family members, including children”; and (2) allowing the
children to remain in the presence of third parties making disparaging remarks
because the schools’ websites list Colen as a “Restrained Individual.” However,
the motion for enforcement does not mention what dates these violations occurred.
The trial court abused its discretion by finding relator in contempt of Violation 23.
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Violation 24
Respondent failed to send Petitioner notice of [T.R.C.]’s involvement
in Simutown, a week-long project which took place in June 2014,
through Our Family Wizard, as ordered.
The divorce decree requires relator to give Colen notice of the precise dates,
days, and times of school activities via Our Family Wizard. The motion for
enforcement specifically notified relator of her failure to give Colen notice
T.R.C.’s involvement in the Simutown project in June 2014. The June 2014 date
of the specifically named project is sufficient to satisfy notice of when the violation
occurred. The trial court did not abuse its discretion by finding relator in contempt
of Violation 24.
Violation 26
Respondent failed to send Petitioner notice of [A.M.C.]’s Promotion
Ceremony, which was on June 25, 2014, through Our Family Wizard,
as ordered.
Relator asserts, assuming that this was a school promotion ceremony and not
an extracurricular event, there is arguably an order that would include the
requirement for relator to list the information on Our Family Wizard. Relator,
nonetheless, claims that she “is left to guess whether she is required to simply post
the School Schedule as it is provided by the school—for the entire school.”
Relator also poses a number of scenarios:
[I]s she to provide the school schedule for the child only expressing
her classes and school activities for which the child is eligible or will
participate? Is she to provide a listing of each event involving either
or both the school as a whole and the child? Is relator required to
provide a list of all events involving a potential new parking lot to
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avoid contempt under the provisions of “. . . other school activities
regardless of importance”?
The divorce decree unambiguously requires relator to give notice Colen of
the precise dates, days, and times of the Official School Schedule and school
activities via Our Family Wizard. The motion for enforcement alleges relator
failed to provide notice of the promotion ceremony on June 25, 2014. Relator has
concocted ambiguities that do not exist in the order. The divorce decree provides
notice of relator’s duties and the motion for enforcement notifies relator of the
provision relator violated, how she violated it, and the date of the violation. The
trial court did not abuse its discretion by finding relator in contempt of Violation
26.
Violation 29
Respondent failed to send Petitioner notice of meetings with [sic]
[A.M.C.]’s participation in water polo and cheerleading, as well as her
schedule, changes in that schedule, the names of her coaches and
dates of competitions through Our Family Wizard as ordered.
The divorce decree requires relator to notify Colen of the dates, days, and
times of school activities. The motion for enforcement notified relator of the
provision she violated and how she violated it, but does not state the date on which
any violation occurred. The trial court abused its discretion by finding relator in
contempt of Violation 29.
C. Conclusion
We conclude that the trial court did not abuse its discretion by finding relator
in contempt of Violations 1, 2, 3 (to the extent the finding applies to relator’s
failure to notify Colen of the parent-teacher conference), 15 (to the extent the
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finding applies to relator’s failure to provide the children’s email addresses with in
ten days of the court’s signing the divorce decree), 17, 19, 24, and 26. On the
other hand, we conclude that the trial court abused its discretion by finding relator
in contempt of Violations 3 (to the extent it applies to the children’s field trips), 5,
6, 7, 8, 9, 10, 15 (to the extent it applies to relator’s failure to notify Colen of
changes of email addresses), 16, 18, 20, 22, 23, and 29.
Because the trial court assessed a separate punishment for each violation, the
entire order is not void. Those contempt findings that are void may be stricken
from the record, while the valid findings remain intact in the order. See Hall, 433
S.W.3d at 207; Davis, 305 S.W.3d at 330. We sustain relator’s second issue, in
part, and overrule it, in part.
V. SUFFICIENCY OF THE LANGUAGE DIRECTING THE SHERIFF TO TAKE CUSTODY OF
RELATOR
In her reply, relator raises a third issue, complaining that the “Enforcement
Order” does not contain sufficient commitment language directing the Sheriff to
take relator into custody and execute the sentence. “A commitment order is the
warrant process or order by which a court directs a ministerial officer to take
custody of a person.” Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992)
(orig. proceeding) (per curiam). Even when there is a signed written judgment or
order of contempt, “a written order of commitment delivered to the sheriff or other
appropriate officer is necessary to legally imprison a person.” Ex parte Barnett,
600 S.W.2d 252, 256 (Tex. 1980) (orig. proceeding). There is no particular form
prescribed by law for an order of commitment. Id. It may be a separate order
issued by the court, an attachment or order issued by the clerk at the court’s
direction, or included in the contempt judgment. Hernandez, 827 S.W.2d at 858.
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The commitment section of the “Enforcement Order” states:
IT IS FURTHER ORDERED that the commitment of STACIE LYNN
DEPEAU shall begin on August 22, 2014 at 9 00 a m , [sic] and
Stacie Lynn Depeau is ORDERED to appear before the 245th Judicial
District Court at that time to be placed in the custody of the Harris
County Sheriff’s Department and placed in the Harris County Jail
for fifteen days, and there safely kept to serve 15 days of the sentence
pronounced by this Court. The remaining 165 days is [sic] probated
pursuant to the terms set forth in this order as stated in Section 8
below.9
This language is sufficient to direct the Sheriff to take custody of relator.
See In re Hall, 433 S.W.3d at 210 (holding language ordering the relator to “be
confined in the County Jail of Harris County, Texas, for a period of 180 days for
each of the . . . counts of contempt and, as civil contempt, day to day thereafter to
be detained by the Sheriff of Harris County, Texas” was sufficient to direct the
sheriff to take custody of the relator).10
9
Emphasis added.
10
In In re Walling, this court held the following language, “Let, therefore, commitment
issue to the Sheriff of Harris County, Texas accompanied by a signed copy of this order,” was
not sufficient to constitute a commitment order because it did not actually direct anyone to take
the relator into custody. No. 14-03-00558-CV, 2003 WL 21543538, at *1 (Tex. App.—Houston
[14th Dist.] July 10, 2003, orig. proceeding) (mem. op.); see also In re Zapata, 129 S.W.3d 775,
780 (Tex. App.—Fort Worth 2004, orig. proceeding) (holding that the following language, “IT
IS THEREFORE ORDERED that [Relator] is committed to the county jail of Tarrant County,
Texas, for a period of 180 days for each separate violation enumerated above,” was insufficient
to constitute a valid commitment order); Ex parte Ustick, 9 S.W.3d 922, 924–25 (Tex. App.—
Waco 2000, orig. proceeding) (holding that the following language, “The Court ORDERS
[RELATOR] committed to the county jail for 180 days for each separate act of contempt, said
commitments to run concurrently,” and “The Court FINDS that Obligor ... can pay the amount
listed below and ORDERS him committed to the county jail until he pays $1000.00 in child
support arrearages,” was insufficient to constitute a valid commitment order).
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Relator does not challenge the commitment language contained in the
“Order Holding Respondent in Contempt for Separate Violations of the Decree
Signed on June 11, 2013 and for Commitment.” The commitment language in that
order states:
It is, therefore, ORDERED that the Sheriff of Harris County, Texas,
take into custody and commit to the jail of Harris County, Texas,
Respondent, STACIE LYNN DEPEAU, who is to be confined in the
county jail of Harris County, Texas in accordance with this contempt
order for 15 days. The remaining 165 days is [sic] probated pursuant
to the terms set forth in the Enforcement Order in Section 8.
This language is sufficient to constitute a valid commitment order because it
directs the sheriff to take relator into custody. See In re Radmacher, No. 14-08-
00346-CV, 2008 WL 226 1278, at *3 (Tex. App.—Houston [14th Dist.] May 23,
2008, orig. proceeding) (mem. op.) (holding that language specifically instructing
the sheriff to “take into custody and commit to the jail of Harris County, Texas”
was sufficient to satisfy Hernandez). A commitment order may be in a separate
order from the contempt judgment. Here, this commitment order refers to the
“Enforcement Order.” We overrule relator’s third issue.
VI. CONCLUSION
We conclude that the contempt order was signed sufficiently close in time to
the trial court’s pronouncement of relator’s contempt and commitment, and the
language of the commitment order is sufficient to direct the sheriff to take relator
into custody. However, we further conclude that the trial court’s contempt
findings as to Violations 3 (to the extent it applies to the children’s field trips), 5, 6,
7, 8, 9, 10, 15 (to the extent it applies to relator’s failure to notify Colen of changes
29
of email addresses), 16, 18, 20, 22, 23, and 29 are void, and direct the trial court to
strike those findings. The remainder of the contempt findings is valid.
Accordingly, we conditionally grant the petition for mandamus, in part, and deny
it, in part. We are confident that the trial court will act in accordance with this
opinion. The writ will issue only if the trial court fails to do so.
PER CURIAM
Panel Consists of Justices McCally, Brown, and Wise.
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