in Re Brian Durant ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-079-CV
IN RE BRIAN DURANT RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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On March 10, 2009, the trial court signed an order finding Brian Durant
in contempt of the trial court’s June 10, 2005 Agreed Final Decree of Divorce
for failing to return his daughter K.E.D. to her mother, Real Party in Interest
Jennifer Durant, at the conclusion of Brian’s court-ordered 2008 Christmas
visitation on December 26, 2008 at 12:00 p.m. Brian was ordered confined in
the Parker County Jail beginning on March 13, 2009 for ninety-six consecutive
hours of his sixty-day sentence, the remainder of which would be probated for
1
… See Tex. R. App. P. 47.4.
a period of five years. Also on March 10, 2009, the trial court signed an order
committing Brian to jail for a term of “four (4) days, 96 straight, continuous
hours in jail,” beginning on or before 6:00 p.m. on Friday, March 13, 2009.
On March 12, 2009, Brian filed a petition for writ of habeas corpus
seeking release from the Parker County Jail and asking that the trial court’s
March 10, 2009 Order of Contempt and Commitment (“the contempt order”)
be declared void. After the petition was filed, this court ordered Brian released
on a $100.00 bond pending the outcome of this original proceeding.2 We grant
habeas corpus relief in part and deny it in part.
An original habeas corpus proceeding is a collateral attack on the
contempt judgment.3 A writ of habeas corpus will issue when the relator has
not been afforded due process or when the order requiring confinement is void.4
Guilt or innocence of the relator is not an issue; the only issue concerns the
lawfulness of the relator’s imprisonment.5 If this court concludes that Brian
2
… See Tex. R. App. P. 52.8(b)(3).
3
… See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig.
proceeding); In re Bielefeld, 143 S.W.3d 924, 927 (Tex. App.—Fort Worth
2004, orig. proceeding) (op. on reh’g).
4
… In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding); In
re Mann, 162 S.W.3d 429, 432 (Tex. App.—Fort Worth 2005, orig.
proceeding).
5
… See Henry, 154 S.W.3d at 596; Mann, 162 S.W.3d at 432.
2
was deprived of his liberty without due process of law, or that the contempt
and commitment orders are void, we must order his release.6
Brian argues that the contempt order is void and unenforceable because
it violates section 157.166 of the Texas Family Code. 7 Specifically, Brian
contends that the order fails to comply with section 157.166(b) because it does
not set forth or copy the provisions of the order for which enforcement was
sought, attach a copy of the order, or give the volume and page number of the
minutes of the order to be enforced. 8 Section 157.166(b) of the family code
provides,
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. 9
The contempt order states that Brian violated the June 10, 2005 Agreed
Final Decree of Divorce by willfully and intentionally failing to return K.E.D. to
6
… See Henry, 154 S.W .3d at 596; Ex parte Swate, 922 S.W.2d 122,
124 (Tex. 1996) (orig. proceeding); In re Alexander, 243 S.W.3d 822, 824
(Tex. App.—San Antonio 2007, orig. proceeding).
7
… See Tex. Fam. Code Ann. § 157.166 (Vernon 2009).
8
… See id. § 157.166(b).
9
… Id.
3
Jennifer at 12:00 p.m. on December 26, 2008, at the conclusion of his
court-ordered 2008 Christmas visitation. The contempt order also states that
he did not return K.E.D. until 7:00 p.m. on December 26, 2008. Accordingly,
the contempt order indicates that Brian violated the divorce decree provision
requiring him to return K.E.D. to Jennifer at 12:00 p.m. on December 26, 2008,
when he did not return her until approximately 7:00 p.m. on December 26,
2008. Because the contempt order identifies the provision of the divorce
decree for which enforcement was requested and the date on which Brian’s
failure to comply with the divorce decree occurred, the contempt order
comports with the requisites of section 157.166(b).10
Brian next argues that the contempt order is void and unenforceable
because the divorce decree which he was found to have violated is not
sufficiently specific. Specifically, Brian argues that there is a conflict between
the specific Christmas holiday possession provisions and the general Thursday
possession provisions. Brian notes that December 25, 2008 was a Thursday
and that he is entitled to Thursday night visitation ending at the time K.E.D.’s
school resumes on Friday at the school. He argues that the decree does not
specify whether the Christmas possession supersedes the Thursday overnight
10
… See id.
4
possession and that the conflicting visitation provisions render the divorce
decree not sufficiently specific because he cannot read the decree and readily
know what he is ordered “to do or not to do.” Therefore, Brian argues, the
order is void and unenforceable.
However, the divorce decree specifically states that conflicts between
general and specific periods of possession are resolved in favor of the specific
periods of visitation. In any event, we note that Brian failed to comply with
either provision—the specific provision requiring him to return K.E.D. at 12:00
p.m. on December 26, 2008, or the general provision requiring him to return
K.E.D. at the time her school resumed on Friday—by failing to return her until
7:00 p.m. on Friday. We therefore reject Brian’s argument.
Brian next argues that the order is void and unenforceable because the
trial court orally rendered its decision on February 23, 2009, but did not sign
the contempt order until March 10, 2009. Brian contends that a contempt
order must be signed by a judge within a “short and reasonable time” after the
finding of contempt, and because the contempt order was not signed shortly
after the oral rendition, the order is void and unenforceable. 11 Brian’s argument
is misplaced.
11
… See Ex parte Cavillo Amaya, 748 S.W.2d 224, 225 (Tex. 1988) (orig.
proceeding).
5
The Amaya court held that a trial court has no authority to verbally order
a person confined for contemptuous acts committed outside the presence of
the court and, thereafter, unduly delay signing a contempt judgment and
commitment order. 12 A trial court may cause a contemnor to be detained by
the sheriff or other officer for a short and reasonable time while the judgment
of contempt and the order of commitment are being prepared for the judge’s
signature.13 Here, though, Brian was not confined on a verbal order by the trial
court; he was confined only after the trial court signed the contempt and
commitment orders. Moreover, it was Brian’s counsel who sought the delay of
incarceration during the February 23, 2009 hearing so that he could prepare
this original proceeding. Accordingly, we reject this argument.
Brian also contends that the contempt order is void and unenforceable
because it contains civil contempt language. Specifically, the contempt order
states that Brian shall be incarcerated “until he has served the full term of this
commitment order and continuing for so long thereafter until such time as [he]
has purged himself of his contemptuous conduct by full and complete
compliance with the terms of this Order.” [Emphasis added.]
12
… Id. at 224.
13
… Id. at 225; see also Ex parte Barnett, 600 S.W.2d 252, 257 (Tex.
1980) (orig. proceeding).
6
Based on the hearing transcript, it is clear that the trial court held Brian
in criminal contempt—there is no way that Brian could purge himself of his
conduct of returning K.E.D. too late. Therefore, the civil contempt language,
italicized above, is erroneous and void. 14 If a severable portion of a contempt
or commitment order is void, an appellate court may strike the offending portion
and deny relief as to the valid portion of the order. 15 Accordingly, we strike the
challenged language. 16 That is, we delete “and continuing for so long thereafter
until such time as [he] has purged himself of his contemptuous conduct by full
and complete compliance with the terms of this Order.” The challenged
statement shall now read,
IT IS FURTHER ORDERED that the Clerk of this Court shall
immediately issue this commitment order . . . , ordering said Sheriff
. . . to arrest the Respondent and physically place Respondent in
the Parker County Jail located in Weatherford, Parker County,
Texas, until he has served the full term of this commitment order.
14
… See Henry, 154 S.W.3d at 596; Swate, 922 S.W.2d at 124.
15
… See Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994) (orig.
proceeding) (severing provision barring good behavior credit and denying relief
as to remainder of order); In re Zapata, 129 S.W.3d 775, 780 (Tex. App.—Fort
Worth 2004, orig. proceeding) (deleting findings not supported by motion); In
re Patillo, 32 S.W.3d 907, 909 (Tex. App.—Corpus Christi 2000, orig.
proceeding); In re Aarons, 10 S.W.3d 833, 834 (Tex. App.—Beaumont 2000,
orig. proceeding).
16
… See Roosth, 881 S.W.2d at 301.
7
Because of this disposition, we do not reach Brian’s remaining arguments
regarding this challenged statement.
Brian also argues that the order is vague and ambiguous because it could
be read to require his incarceration until K.E.D. is eighteen years old, which
would be when he had fully complied with the divorce decree. Specifically, he
challenges the following provisions:
IT IS ORDERED that after Respondent has served 96 consecutive
hours of the said 60 day sentence in the Parker County Jail,
Respondent shall then be released from jail and placed on probation
for a period of 5 years pending Respondent’s full compliance . . .
with EACH of the terms and conditions of this order as set out
hereinbelow, to wit:
1. Respondent shall fully comply with each and every term
of the parties’ Agreed Final Decree of Divorce signed on June 10,
2005 together with any and all modifications of the said Agreed
Final Decree of Divorce . . . . [Emphasis added.]
Judgments are construed and interpreted under the same rules as other
written instruments.17 Written instruments are to be read and interpreted
reasonably.18 The “pending” phrase immediately follows and therefore modifies
“placed on probation.” “Released from jail” has no modifiers. Accordingly, we
17
… See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex.
1971) (orig. proceeding).
18
… See Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696
S.W.2d 378, 382 (Tex. 1985).
8
reject Brian’s argument that his release from jail could be conditioned on him
complying with the decree until K.E.D. reaches the age of majority.
Brian’s complaints about the first enumerated condition of probation,
however, are another matter. To satisfy due process, a contempt order must
clearly specify the punishment imposed by the court.19 The first condition could
be read to require full satisfaction of Brian’s responsibilities under the decree
within five years, even though the child is only seven years old. Also troubling,
the condition requires obedience to all modifications to the decree without
requiring that such modifications be valid. Accordingly, we delete the condition
that “Respondent shall fully comply with each and every term of the parties’
Agreed Final Decree of Divorce signed on June 10, 2005 together with any and
all modifications of the said Agreed Final Decree of Divorce” as void.20
Brian does not challenge the remaining conditions of probation; therefore,
we do not address them.
19
… Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (orig.
proceeding).
20
… See Henry, 154 S.W.3d at 596; Swate, 922 S.W.2d at 124; Roosth,
881 S.W.2d at 301.
9
We grant Brian’s requested habeas corpus relief to the extent that we
sever the void provisions as detailed above. We deny all other relief, lift our
order of March 13, 2009, and remand Brian Durant to the custody of the Parker
County Sheriff.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: September 10, 2009
10