in Re Martha Koomar ( 2020 )


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  •                                      In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    __________________
    NO. 09-20-00114-CV
    __________________
    IN RE MARTHA KOOMAR
    __________________________________________________________________
    Original Proceeding
    County Court at Law No. 3 of Montgomery County, Texas
    Trial Cause No. 10-02-01239-CV
    __________________________________________________________________
    MEMORANDUM OPINION
    In a mandamus petition, Martha Koomar (Mother) challenges a judgment for
    contempt in a suit affecting the parent-child relationship (SAPCR). An assigned
    judge sitting in the trial court found Mother committed three separate willful
    violations of the SAPCR order, assessed her punishment at 100 days of concurrent
    jail confinement for each violation, suspended the commitment and placed Mother
    on community supervision for eighteen months on condition that she comply with
    the SAPCR order, and ordered Mother to pay attorney’s fees of $3,667.00 to be paid
    in monthly installments of $300.00. Mother argues the contempt order is void as to
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    each of the violations found by the trial court. Additionally, she argues the trial court
    could not award attorney’s fees as child support and no evidence supports the award.
    We stayed the trial court’s contempt order and obtained a response from the real
    party in interest, Kristopher Yerger (Father).
    Mother and Father agree that mandamus provides the correct vehicle for this
    challenge because the contempt order, which only requires Mother to comply with
    the SAPCR, does not involve confinement. See In re Long, 
    984 S.W.2d 623
    , 625
    (Tex. 1999) (orig. proceeding).
    Any provision of a final SAPCR order may be enforced by contempt. See Tex.
    Fam. Code Ann. § 157.001(b). A motion for enforcement must, in ordinary and
    concise language, identify the provision of the order allegedly violated and sought
    to be enforced and state the manner of the alleged contemnor’s noncompliance. See
    id. § 157.002(a)(1)-(2). A
    motion for enforcement of the terms and conditions of
    conservatorship or possession must include the date, place, and, if applicable, the
    time of each occasion of the respondent’s failure to comply with the order. See
    id. § 157.002(c). Similarly,
    the acts or omissions that are the subject of the order, as
    well as the manner of noncompliance must be included in the enforcement order.
    Id. § 157.166(a)(2)-(3). “A
    criminal contempt conviction for disobedience to a court
    order requires proof beyond a reasonable doubt of: (1) a reasonably specific order;
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    (2) a violation of the order; and (3) the willful intent to violate the order.” Ex parte
    Chambers, 
    898 S.W.2d 257
    , 259 (Tex. 1995) (orig. proceeding).
    “A contempt order is void if it is beyond the power of the court or violates due
    process.” In re Office of the Att’y Gen., 
    422 S.W.3d 623
    , 628 (Tex. 2013) (orig.
    proceeding). “If the trial court’s contempt order in this case is not void, there was no
    abuse of discretion.”
    Id. As the party
    who filed this proceeding, Mother has the
    burden to establish that her noncompliance with the trial court’s orders was not
    willful or that she was unable to comply. See 
    Chambers, 898 S.W.2d at 261
    . We do
    not weigh the evidence in reviewing the trial court’s ruling; instead, we determine
    only if there is no evidence to legitimize the trial court’s finding of contempt.
    Id. at 261-62.
    Failure to Surrender
    In her first issue, Mother argues the contempt order is void for lack of due
    process because the SAPCR order and Father’s motion for contempt failed to
    provide the required notice under established Texas law. Mother argues the phrase
    in the SAPCR order which requires her to “surrender” the child is too vague for her
    to know exactly what duties and obligations were imposed on her. In the alternative,
    she argues, the contempt order is void because there is no evidence that Mother failed
    to “timely surrender” the Child at the airport. We need not consider whether the
    Mother received adequate notice because we conclude the evidence in the record
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    does not support the trial court’s finding that Mother failed to timely surrender the
    Child as alleged in Father’s motion for contempt and found by the trial court in the
    contempt order.
    The 2018 SAPCR order required that Mother “surrender the Child at an airport
    near [Mother’s] residence at the beginning of each period of [Father’s] possession.”
    Additionally, it ordered that Mother “deliver the Child to the airport from which the
    Child is scheduled to leave at the beginning of each period of possession at least two
    hours before the scheduled departure time.” It further stated that “[Mother] shall
    surrender the Child to a . . . parent . . . who will be flying on the same flight on which
    the Child is scheduled.” According to the record, on the date in question, Father and
    the Child had tickets for a flight with a 5:15 p.m. departure time. Because school
    was dismissed at about 3:00 p.m., the parents agreed that Mother would travel
    directly from school to Hobby Airport so that they would arrive at the airport at 4:00
    p.m. According to Father, Mother arrived at the airport departure curb seven or eight
    minutes after 4:00 p.m. Although Father agreed that Mother’s arrival at the airport
    satisfied their agreement, Father claimed Mother failed to timely surrender the Child
    because the Child refused to get out of Mother’s vehicle for another 50 minutes.
    Father testified that Mother told him that the Child would not get out of the
    vehicle. He claimed Mother opened the door but physically blocked his access to the
    Child. Father stated that he attempted to approach the vehicle and tried to remove
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    the Child from the vehicle at least three times, but Mother was at the passenger door.
    Father testified that Mother reached out and touched him from behind at least three
    times while he was reaching in the car to undo the Child’s seat belt and remove him
    from the vehicle. He claimed that he withdrew when he felt her hands on his back
    trying to pull him away. According to Father, Mother eventually opened the door,
    and the Child left the vehicle. Father and the Child sprinted to the gate and departed
    on their scheduled flight.
    Father testified that he recorded portions of the encounter with his cellular
    telephone. According to Father, the recordings stopped when it required an upload
    to the cloud. The recordings were admitted into evidence and viewed by the judge
    during the hearing.
    The first recording, which is marked 4:09 p.m., shows the vehicle’s door is
    open and Mother is in the door talking to the Child, then she steps away while Father
    tells the Child it is time to go and complains that Mother has failed to execute her
    responsibilities. Mother tells Father that the Child is telling Father he does not want
    to go because he wants to go to school the next day. The second recording, marked
    4:12 p.m., shows Mother opening the vehicle’s front passenger door. The Child is in
    the passenger seat, unbuckled. Father can be heard stating that Mother has coached
    the Child and Mother also asks Father if he is going to use violence against the Child.
    The recording shows that Mother moves to a position at the rear passenger door
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    while Father complains that the Child is not doing what he is told, and that Mother
    is allowing the behavior. Mother gestures to the open door. The third recording,
    marked 4:15 p.m., shows Mother at the rear passenger door of the vehicle with the
    front passenger door open and the Child unbuckled in the front passenger seat. The
    fourth recording, marked 4:27 p.m., includes the Father telling Child not to interrupt
    while Father is talking to Mother. Another recording, marked 4:29 p.m., shows
    Mother standing at the open door while Father states he is going to file an
    enforcement action and Father accuses Mother of pulling a stunt. Mother tells Father
    that Child is “right there” and she did not drive an hour in the rain to the airport to
    “not to hand [the Child] over.” In the recording beginning at 4:34 p.m., Mother can
    be seen standing near the car door while the Child whines and Father describes ways
    in which Mother is a poor parent. Mother can be heard stating that Father behaved
    similarly with another child. The next recording marked two minutes later, contains
    a recording of Mother explaining to Father that the Child is telling Father why he
    does not want to go. Father can be heard saying that the Child could have called him,
    but Father says the Child does not return his calls. In a recording marked two minutes
    later, Mother tells Father she brought the Child to the airport and Mother tells Father
    that the Child does not want to miss school. At 4:40 p.m., Father states that he is
    going to get his son. At 4:41 p.m. Father turns the camera away from the vehicle
    towards Mother, who is standing behind Father and talking about Father’s daughter.
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    At 4:45 p.m., the Child has moved from the front passenger seat to the driver’s seat.
    At 4:47 p. m., Father tells Mother she needs to get the Child out of the car. Mother
    asks if he wants her to “beat” the Child. Father says he is going to change the custody
    situation.
    In his brief, Father argues that the recordings show that Mother engaged in
    alienating behavior disguised as encouragement. He argues that when Mother tells
    the Child to “do[] something fun” with Father, she is leading the Child to believe he
    has a choice in the time he spends with Father. Father compares this case to Ex parte
    Rosser, where the trial court rejected the alleged contemnor’s defense that he was
    unable to comply with the visitation order. See 
    899 S.W.2d 382
    , 386 (Tex. App.—
    Houston [14th Dist.] 1995, orig. proceeding). In Rosser, the reviewing court
    reasoned that the trial court could reject the interested witnesses’ testimony that the
    child refused to go with her mother and her father could not make her go.
    Id. Unlike Rosser, where
    the issue was whether the alleged contemnor established
    his defense of inability to comply with the order, in this case there is no evidence
    that Mother violated the SAPCR order. The SAPCR order required Mother to deliver
    the Child to the airport two hours before the scheduled flight and surrender him to
    Father. The motion to enforce alleged that Mother failed to timely surrender the
    Child. According to the evidence presented at the hearing, Mother delivered the
    Child to the airport as required by the SAPCR order. Mother could not possibly pick
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    up the Child at the end of the school day and arrive at the airport two hours before
    the flight Father had booked, and Father did not suggest that she could have done so.
    Rather, Father alleged Mother failed to timely surrender the Child because she did
    not physically remove the Child from the vehicle until approximately 50 minutes
    after they arrived at the airport. Father was present the entire time and for almost all
    that time Father had unimpeded access to the Child. The recordings demonstrate that
    there were moments when Mother positioned herself between the Father and the
    Child, but the recordings reveal no observable interference with the transfer of
    possession. Father testified that Mother pulled at his back when he attempted to
    unbuckle the Child, but Mother delivered the Child to the designated location at the
    arranged time and for most of the recorded encounter the Child was unrestrained,
    the door to the vehicle was open, Mother was not blocking the door to the vehicle
    and Father had a clear path to the Child. Father remained at the drop-off curb
    verbally criticizing Mother and Mother verbally responding to Father. While the
    recordings clearly depict both parents mutually engage in a discussion about each
    other and show the parents argue with one another, there is no evidence that Mother
    failed to surrender the Child as required by the SAPCR order and as alleged in the
    motion to enforce. Therefore, we conclude that the contempt order cannot be
    sustained based upon Mother’s alleged failure to surrender the child at the airport.
    We sustain issue one.
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    Monitored Communications
    In her second issue, Mother argues the contempt judgment is void for lack of
    due process because the SAPCR order and the motion for enforcement failed to
    provide the required notice under Texas law, the motion failed to comply with
    Section 157.002(c) of the Texas Family Code, and the contempt judgment fails to
    state the date of each occasion when Mother failed to comply with the SAPCR
    order’s prohibition against monitored communications between Father and the
    Child.
    Mother received notice of the contempt charge through Father’s motion for
    enforcement. Father alleged in the motion for enforcement that Mother “monitors
    the electronic communications (FaceTime) sessions between [Father] and the child
    [] without having a good faith belie[f] that the child is having a problem, if so, she
    failed to advise [Father] that the communication is being monitored.” Mother
    received no notice of the dates of the alleged violations. An alleged contemnor is
    entitled to notice of the date of each alleged violation. See Tex. Fam. Code Ann. §
    157.002 (c); see also Ex parte Arnold, 
    926 S.W.2d 622
    , 624 (Tex. App.—Beaumont
    1996, orig. proceeding). Furthermore, the trial court failed to find the date of each
    occasion when Mother failed to comply with the order. See Tex. Fam. Code Ann. §
    157.166(b). We conclude that the trial court deprived Mother of due process by
    failing to provide sufficient notice before adjudicating her guilty of contempt and by
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    failing to make a finding on the date of the alleged violation. Accordingly, the
    contempt order is void as to this alleged violation. We sustain issue two.
    Health Information
    In her third issue, Mother argues the contempt judgment is void for lack of
    due process because Father’s motion for enforcement and the contempt judgment
    failed to state the date of each alleged violation. The allegations in Father’s motion
    for enforcement provided to Mother her only notice of the manner of her alleged
    noncompliance with the SAPCR order. See Tex. Fam. Code Ann. § 157.002(a)(2).
    Father’s motion for enforcement alleged that
    [f]rom August 2018 until May 29, 2019, [Mother] failed to inform
    [Father] in a timely manner of significant information concerning the
    health, education, and welfare of the Child by failing [to] provide
    [Father] with information about the psychological health and treatment
    of the [Child] to wit, the [Child] had been to at least fourteen (14)
    therapy appointments, dating back to August 2018. Only after
    discovering that the child had secretly been seeing a therapist, [Father]
    on June 4, 2019 specifically requested information on the psychological
    health and treatment of the child and the only information provided was
    approximate dates of sessions.
    In its contempt order, the trial court found that “[f]rom August 2018 until May
    29, 2019, [Mother] failed in her affirmative duty to inform [Father] in a timely
    manner of significant information concerning the health, education, and welfare of
    the Child by failing [to] provide [Father] with information about the psychological
    health and treatment of [Child].” The trial court found Mother’s actions were willful
    and intentional and that she had an ability to comply.
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    A respondent may be found in contempt only for violations that are
    specifically pleaded in the motion for enforcement under Section 157.002. See In re
    Office of the Att’y Gen., 422 S.W3d at 630. A judgment of contempt without support
    in the evidence is void. Ex parte Davila, 
    718 S.W.2d 281
    , 282 (Tex. 1986). Where
    one term of contempt is assessed for more than one act of contempt and at least one
    of those acts is not punishable by contempt, the entire judgment of punitive contempt
    is void. Ex parte Jordan, 
    787 S.W.2d 367
    , 368 (Tex. 1990).
    Mother’s failure to inform Father that Child had been to therapy appointments
    was pleaded and found as a single violation of the SAPCR order. In the contempt
    hearing, Father testified that on May 28, 2019, in an e-mail Mother informed Father
    for the first time that the Child had “been working with a therapist to communicate
    his feelings to you so the resentment doesn’t keep building.” At Father’s request, the
    following week Mother provided the name and contact information for the therapist.
    Father asked for the dates on which the Child may have had a session with a
    therapist, and on June 12, 2019, Mother replied “Best I can go back and gather dates,
    here are the dates [Child] saw the therapist: 8/27/18, 9/20/18, 10/1/18, 10/13/18,
    11/27/18, 12/4/18, 12/10/18, 1/3/19, 1/29/19, 2/19/19, 3/5/19, 4/2/19, 5/9/19,
    5/31/19.” This e-mail identified fourteen dates, only thirteen of which fell within the
    date range alleged in the motion for enforcement and found in the contempt
    judgment. The most recent listed date occurred after the date on which Mother told
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    Father that the Child had been working with a therapist. There is no evidence in the
    record that from August 2018 until May 29, 2019, Mother failed to inform Father in
    a timely manner that the Child had been to at least fourteen therapy appointments.
    Because no evidence supports the contempt judgment as to this violation, the
    judgment of contempt is void. See
    id. We sustain issue
    three.
    Attorney’s Fees
    In her fourth issue, Mother argues the trial court clearly abused its discretion
    by awarding attorney’s fees of $3,667 as child support to be paid in monthly
    installments of $300. Section 157.167(b) of the Texas Family Code authorizes a trial
    court to award fees, as follows:
    If the court finds that the respondent has failed to comply with the terms
    of an order providing for the possession of or access to a child, the court
    shall order the respondent to pay the movant’s reasonable attorney’s
    fees and all court costs in addition to any other remedy. If the court
    finds that the enforcement of the order with which the respondent failed
    to comply was necessary to ensure the child’s physical or emotional
    health or welfare, the fees and costs ordered under this subsection may
    be enforced by any means available for the enforcement of child
    support, including contempt, but not including income withholding.
    Tex. Fam. Code Ann. § 157.167(b).
    The trial court awarded attorney’s fees without finding that the order Mother
    failed to comply with was necessary to ensure the child’s physical health or
    emotional welfare. Because such a finding is necessary for an award of attorney’s
    fees as child support, the trial court clearly abused its discretion by awarding the fees
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    as child support. See
    id. 1
    Because we conclude the evidence in the record is
    insufficient to justify the amount of attorney’s fees awarded in the contempt
    judgment, we find that the trial court abused its discretion by awarding attorney’s
    fees in the amount of $3,667. We sustain issue four.
    We are confident that the trial court will vacate the contempt judgment. A writ
    of mandamus shall issue only in the event the trial court fails to comply.
    PETITION CONDITIONALLY GRANTED.
    PER CURIAM
    Submitted on April 13, 2020
    Opinion Delivered September 30, 2020
    Before McKeithen, C.J., Kreger and Johnson, JJ.
    1 We further note that when a statute authorizes fee-shifting, the party seeking
    a fee award must prove the reasonableness and necessity of the requested attorney’s
    fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 
    578 S.W.3d 469
    , 496
    (Tex. 2019); Arthur Andersen & Co. v. Perry Equip. Corp., 
    945 S.W.2d 812
    , 818-
    19 (Tex. 1997). Father’s attorney testified that his fees were reasonable and
    necessary, but the billing records he submitted to the trial court do not identify the
    person or persons performing the particular services and he provided no explanation
    for the different hourly rates reflected in the records.
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