ACCEPTED
03-16-00855-CV
14440815
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/23/2016 1:14:53 PM
JEFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
No. 03-16-00855-CV AUSTIN, TEXAS
12/23/2016 1:14:53 PM
[N THE COURT OF APPEALS JEFFREY D. KYLE
Clerk
3RD JUDICIAL DISTRICT
AUSTIN, TEXAS
In re Mark Peltier and Jonna Peltier, Appellants
APPELLANTS' MOTION FOR EMERGENCY STAY
JAMIE GRAHAM & ASSOCIATES, PLLC
Jamie L. Graham
State Bar No. 24027335
Audrey E. Manriquez
State Bar No. 24029704
Tower Life Building
310 S. St. Mary's St., Suite 2500
San Antonio, Texas 78205
Tel: (2 IO) 3 08-6448
Fax: (210) 308-5669
E-mail: jamie@jamiegrahamlaw.com
Attorneys for Appellants
Pelitionfhr Emergency Stay: Peltier Page 1
TO THE HONORABLE COURT OF APPEALS:
1. Appellants are Mark Peltier and Jonna Peltier. Real Party in interest is
Jacek R. Bogle. Appellees are Patrick Smith and Debbie Smith.
2. An Order of Enforcement by Contempt and Suspension of
Commitment (Possession or Access) against Appellants was entered on December
9, 2016. (See Exhibit "A"). It is from this order, which holds Appellants in criminal
contempt, that Appellants are now appealing.
3. Appellants filed a Notice of Appeal of the Order of Enforcement by
Contempt and Suspension of Commitment (Possession or Access) on December 14,
2016. (See attached Exhibit "B").
3. Appellees filed a Motion to Revoke Suspension of Commitment and
Order to Appear on December 15, 2016. (See Exhibit "C"). A hearing is set on said
motion on December 30, 2016 at 9:00 a.m. in the 433 rd Judicial District Court of
Comal County, Texas. Appellees seek to have Appellants pay criminal fines and
placed in jail for alleged violations of the Order of Enforcement by Contempt
and Suspension of Commitment regarding the possession and access of the
child.
4. The underlying order is "insufficient to support a contempt conviction"
because the record is void of any evidence to support same. In re R.E.D., 278 S.W.3d
Petition.for Emergency Stay: Peltier Page2
850 (Tex. App.-Houston [1st Dist.] 2009). (See Exhibit "D"). The transcript of
the trial court proceeding has been requested, and will show the following
deficiencies:
a. At no time during the proceedings was the trial court presented with the
order that Appellants allegedly violated. Because the order was not before the court,
there was insufficient evidence presented of Appellants' obligations under that
order, or whether such order was sufficiently clear and specific to support a criminal
contempt finding.
b. Appellee Patrick Smith's testimony was the only evidence presented to
support the contempt finding. Appellee's testimony does not support the trial court's
finding that Appellant's violated the underlying order. Appellee Patrick Smith
repeatedly testified he did not know or could not recall specific incidences of alleged
violations, of which the trial court ultimately found Appellants guilty.
5. An emergency stay of enforcement of the order and of further
proceedings in the trial comt is urgently necessary because Appellees are seeking to
enforce the en-oneous contempt order for payment of criminal fines and
incarceration, which will result in a wrongful denial of Appellants' libe1ty.
6. Appellants attach a certificate of compliance certifying that counsel for
Appellants notified counsel for Appellees by letter that a motion for emergency stay
Petition Ji;r Emergency Stay: Pellier Page3
of the trial court proceedings would be filed. Tex. R. App. P. 52.1 O(a). (See Exhibit
"E")
7. Appellants request this Court grant an emergency stay of all trial court
matters and of the enforcement of the void Order of Enforcement until the court
hears this motion.
8. The parties have not agreed to this Motion.
Argument and Authorities
9. The Court may grant temporary relief pending its determination of an
original proceeding. Tex. R. App. P. 52.10.
10. This emergency stay is necessary to maintain the status quo of the
pa1ties and preserve the Court's jurisdiction to consider the merits of the original
proceeding. In re Reed,
901 S.W.2d 604, 609 (Tex. App.-San Antonio 1995, orig.
proceeding).
11. Appellants attach a certification to this motion to establish the facts
stated herein are true and correct. Tex. R. App. P. 102.
C. Prayer
12. For the reasons stated in this motion, Appellants ask the Comt for an
emergency stay to maintain the status quo of the parties and preserve the Court's
jurisdiction to consider the merits of Appellants' original proceeding.
Petition for Emergency S1ay: Peltier Page4
Respectfully Submitted,
JAMIE GRAHAM & ASSOCIATES, PLLC
Tower Life Building
310 S. St. Mary's St., Suite 2500
San Antonio, Texas 78205
Tel. (210) 308-6448
Fax (210) 308-5669
By: Jamie L. Graham
State Bar No. 24027335
Audrey E. Manriquez
State Bar No. 24029704
Tracy E. Ross
State Bar No. 24037399
Sarah Anne Lishman
State Bar No. 24086267
Attorney for Respondents
jamie@jamiegrahamlaw.com
irene@jamiegrahamlaw.com
Petition for E1nergency Stay: Peltier Page 5
Certificate of Conference
I certify that a reasonable effort was made to confer with counsel for Appellee
in interest in regard to the relief requested herein.
Isl Jamie L. Graham
Certificate of Service
I certify that a true copy of this Motion for Emergency Stay was served in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or
that party's lead counsel as follows:
Via Facsimile: (830) 626-1414
James E. Bettersworth
The Bettersworth Law Firm
110 W. Faust Street
New Braunfels, Texas 78130
Isl Jamie L. Graham
Petition.for Emergency Stay: Peltier Page6
Certificate of Compliance
Under Texas Rule of Appellate Procedure 52.1 O(a), I certify that on December
22, 2016, I notified attorney for Appellee by facsimile that a motion for stay would
be filed.
Isl Jamie L. Graham
Certification
I hereby certify that I have reviewed the above Motion for Emergency Stay
and have concluded that every factual statement in the said Motion is supported by
competent evidence.
Isl Jamie L. Graham
SUBSCRlBED AND SWORN TO BEFORE ME on this the 23rd day of
December, 2016, to ce1tify which witness my hand and seal of office.
Notary Public, State of Texas
Petition.for Emergency Stay: Peltier Page 7
EXHIBIT A
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
CAUSE NO. C2013-1375D
IN THE INTEREST OF § IN THE DISTRICT COURT
§
J.R.B. § 433 JUDICIAL DISTRICT
Cl
§ c:, vi
A CHILD § COMAL COUNTY, TEXAS~
(i -··
I -1;:n
-::..
o
71
ORDER OF ENFORCEMENT BY CONTEMPT
AND SUSPENSION OF COMMITMENT
(POSSESSION OR ACCESS)
\ :,,::::
r-._.
-0
On November 17, 2016 the Court heard Movants PATRICK SMITH and DEBRA SM TH's ~elion,:_:,
..,z w
for Enforcement of Possession or Access. -<
Appearances
Movants, PATRICK SMITH and DEBRA SMITH, appeared in person and through attorney of
record, JAMES S. BETIERSWORTH and announced ready for trial.
Respondents, JONNA G. PELTIER and JAMES PELTIER, appeared in person and through
attorney of record, JAMIE GRAHAM, and announced ready for trial.
Jurisdiction
The Court, after examining the record and the evidence and argument of counsel, finds that it has
jurisdiction over the subject matter and the parties in this case. All persons entitled to citation were properly
cited.
Record
The record of testimony was duly reported by the court reporter for the County Court al Law
Number 2.
Gause No. G2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 1
A jury was waived, and all questions of fact and of law were submitted to the Court.
Findings
The Court finds that Respondents JONNA G. PELTIER and JAMES PELTIER are guilty of
separate violations of the order signed on August 20, 2015 in Cause No. C2013-1375D, styled "In the
Interest of J.R.B., a Child," in the 433 rd Judicial District of COMAL County that states in relevant part as
follows:
A. Possession Order
Movants PATRICK SMITH and DEBBIE SMITH shall have possession of the child
as follows: ....
November Forward: Starling in November and until further order of the cou,t,
PATRICK SMITH and DEBBIE SMITH shall have possession of the child on the
first and third weekends of the month beginning at 6:00 p.m. on Friday and
continuing until 6:00 p.m. on the following Sunday. These possession periods
shall take place at PATRICK SMITH and DEBBIE SMITH's residence unless
otherwise agreed.
B. Skype Communication
IT IS ORDERED that PATRICK SMITH and/or DEBBIE SMITH shall be permitted
to Skype with the child to supplement their periods of possession as follows:
a. JONNA G. PELTIER and/or JAMES PELTIER shall make the child
available for Skyping on Monday and Thursday of each week between
6:00 p.m. and 8:00 p.m.
b. Telephone calls and other communications shall not be monitored by the
other party unless either believes in good faith that a child is having a
problem, in which case the party shall advise the other party that the call
or other communication in being monitored.
C. Coparenling Web Site Program
IT IS ORDERED that the parties each shall, within ten days after this Order is
signed by the Court, obtain at his or her sole expense a subscription to the Family
Wizard program on the Internet Web Site at www.ourfamilywizard.com. IT IS
FURTHER ORDERED that the parties each shall maintain that subscription in full
Cause No. C2013-13750; In the Interest of J.R.8., a Child; Order of Enforcement Page 2
force and effect for as long as any child is under the age of eighteen years and not
otherwise emancipated.
IT IS ORDERED that the parlies shall each communicate through the Family
Wizard program with regard to all communications regarding the children, except
in the case of emergency or other urgent matter.
IT IS ORDERED that the parlies each shall timely post all significant information
concerning the health, education, and welfare of the child's schedules and
activities on the Family Wizard Internet Web site. However, IT IS ORDERED that
neither parly shall have any obligation to post on that Web site any information to
which the other parly already has access through other means, such as
information available on the Websites of the child's schools.
IT JS FURTHER ORDERED that the parlies shall each timely post on the Family
Wizard Internet Web site a copy of any e-mail received by the parly from the
child's schools or any health-care provider of the child, in the event that e-mail was
not also forwarded by the schools or health-care provider to the other parly.
For purposes of this section of this order, "timely" means on /earning of the event
or activity, or if not immediately feasible under the circumstances, not later than
twenty-four hours after learning of the event or activity.
By agreement, the parlies may communicate in any manner other than using the
Family Wizard program, but other methods of communication used by the parlies
shall be in addition to, and not in lieu of, using the Family Wizard program.
The Court further finds that Respondents JONNA PELTIER and JAMES PELTIER have failed to
comply with and have each violated the provisions of the order as follows:
Violation 1.July 7, 2016- Respondents did not allow Movants to skype or talk to J.RB.
Violation 2.July 11, 2016- Respondents did not allow Movants to skype or talk to J.R.B.
Violation 3.July 14, 2016- Respondents did not allow Movants to skype or talk to J.R.B.
Violation 4.July 18, 2016- Respondents did not allow Movants to skype or talk to J.RB.
Violation 7.July 25, 2016- Respondents did not allow Movants to skype or talk to J.RB.
Violation 8.July 28, 2016 - Respondents did not allow Movants to skype or talk to J.RB.
Violation 9.August 1, 2016- Respondents did not allow Movants to skype or talk to J.RB.
Cause No. C2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 3
Violation 10.August 4, 2016- Respondents did not allow Movants to skype or talk to J.R.B.
Violation 11.August 5, 2016 - JONNA PELTIER and JAMES PEL TIER denied possession to
Movants.
Violation 12.August 8, 2016- Respondents did not allow Movants to skype or talk to J.R.B.
Violation 13.August 11, 2016-Respondents did not allow Movants to skype or talk to J.R.B.
Violation 14.August 15, 2016 - Respondents did not allow Movants to skype or talk to J.R.B.
Violation 15.August 18, 2016 - Respondents did not allow Movants to skype or talk to J.R.B ..
Violation 16.August 19, 2016 - JONNA PELTIER and JAMES PELTIER denied possession to
Movants.
Violation 17.August 22, 2016 - Respondents did not allow Movants to skype or talk to J.R.B.
Violation 18.August 25, 2016 - Respondents did not allow Movants to skype or talk to J.R.B ..
Violation 19.August 29, 2016- Respondents did not allow Movants to skype or talk to J.R.B.
Violation 20.JONNA PELTIER and JAMES PELTIER failed to sign up for Family Wizard.
The Court specifically finds that Respondents JONNA PELTIER and JAMES PELTIER are in
contempt for each separate violation enumerated above.
The Court further finds that on the day of this hearing Respondents had the ability to comply with
the prior order of the Court.
The Court further finds that attorney's fees and costs of $6,800.00 should be assessed against
Respondents JONNA PEL TIER and JAMES PELTIER.
Relief Granted
IT IS ADJUDGED that Respondents JONNA PELTIER and JAMES PELTIER are in contempt for
each separate violation enumerated above.
Criminal Contempt
IT IS ORDERED that JONNA PEL TIER shall pay assessed a fine of two thousand dollars
Cause No. C2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 4
($2,000.00) and confinement in the county jail of Comal County, Texas for a period of ninety (90) days for
each violation enumerated above. IT IS THEREFORE ORDERED that Respondent JONNA PELTIER is
committed to the county jail of Comal County, Texas for a period of ninety (90) days for each separate
violation enumerated above. IT IS ORDERED that each period of confinement assessed in this order for
JONNA PELTIER shall run and be satisfied concurrently, not to exceed a cumulative total of ninety (90)
days.
IT IS ORDERED that JAMES PELTIER shall pay assessed a fine of two thousand dollars
($2,000.00) and confinement in the county jail of Comal County, Texas for a period of ninety (90) days for
each violation enumerated above. IT IS THEREFORE ORDERED that Respondent JAMES PELTIER is
committed to the county jail of Comal County, Texas for a period of ninety (90) days for each separate
violation enumerated above. IT IS ORDERED that each period of confinement assessed in this order for
JAMES PELTIER shall run and be satisfied concurrently, not to exceed a cumulative total of ninety (90)
days.
Additional Periods of Possession
IT IS FURTHER ORDERED that Movants PATRICK SMITH and DEBRA SMITH shall have four (4) 4
additional days of possession to compensate for the periods of possession denied to be completed as
follows: 1~/1ti}t ){~b~rv
JUDGl?PRESIDJNG
In th• Interest of J,R.B., a Ch/Id; Motion to Revoke Suspension of Commitment and Onlor lo Appear
Page$
8306064133 Mida petition ,,,Jth this Court seeking a writ nfhalieas
corpus along with a mution fortemporaryrdief. On August 28, ::wo8, this Courtgrantdi temporary relief by
staying thecommiti:nentorder.
Standard of Review ou Habeas Corpus
Here, the agreed ord<;r rdatorv-.,;is hdd in contempt for,-io!ating was issued pursuant to section 6.502ofthe
Te:,;.as FanlllyCoda. !*:ction 6.502 provides, in relevant part:
Tempornry lnjuncticm and01herTemporaryOrders
(ri) While a suit for di~solution ofu nrnrriage is pending and on the motion of a patiyor on Uie court's own
motion after not.ict> and hearing, the court may render an appropriate order, including the granting ofa
temporary injunction fDr the praserva!ion of the property and11rott1ction oftlH.' parties as deemed necessary and
equitable :tnd induding an order directed to one or both parties.
(7) prohibiting the ptCCS5ary living expenses! ,J
Tex. Fam.Code Aun. 9 6.502 (Vernon 2006).
A trial court may eninrce any tcmpnrarycourtorder in a divorce suit by punishing a violation with contempt
'l'ex. Fam.Code Ann. S 6.506 (Vernon 2006); see also fa pa rte Butler, 523 S.W.:2d 309,311 (Tex.Civ.App.-
Houston [1st Dist.J 1975, no writ) (cm1rtdenied writofhal'x'as eorpns after hit<;band ,,iolated dearly defined
Lcmporat:,v trial courtwdcr amt wifo fik>dmotion for contempt). Relator is diargL>d with construclive contempt.
Constrnetive contcmi~t, as opposed to dirc.,ctconlempt, involves conduct by the rdator that occur,,; outside the
presence of the trial eourt Ex pa rte Gordon, 584 S. IN. 2d 686. 688 (Tcx.1979). Such. conduct inclmfos the
relator's failure to comply v,ith a court order.
Id.
Ajudgmentofcnnn:mpt may be either civil or criminal. Kx pa rte Werblud, 536 S,W,2d 542, 545 (Tex.1976).
The purpose of civil ton tempt is remedial and coercive.
Id. A judgment of civil contempt exerts the judicial
authority of the comi to pcrsuack the contemnor to obey an order of tha court when obedience will bcnafit an
opposing !iligant. l(l, ··tmprisonment is conditional upon obedience and therefore the ciri! con1cmnor'c::uTies
the keys of(th\e} prism, in (his) own pocket.'" !(l (qaoting Shil!itnni v. Cnitcd States, 384 U.S. 364,368, 86
S.C!. 1531, 1534, 16 l,.Er,l2d 622 (1966)). When a re!ator has committed civil contempt, he may prncure his
release bycomplianct.: with ti)e provisions of the court's order.
Id. Criminal contempt, by contrast, is punitive
in nature in that the ~l'ntence is not conditioned upon a promise of future performance; rather, the contemnor
i~ being punished fof;, completed act that affronted the dignity and authority of the court. Werb!ud, 536
S. \.V,2dat 545 (citing ~hillitani, 384 U.S. at:368, 86 S.CI. at 1534). Here. thejudgmentofcontemptentered
against re!ator by the trial court is ajudgrnenl of both civil and criminal contempt bL'C\'as defeclivl":! because the ,illegations made in the motion to t:>nforce
neither charged him t:'::·ith violating the agn:icd order nor identified the particular stock transactions he made.
Due procC'.'!S requir,;:, that a constructivccontcmnor must have full notice of any charges against him and a
reasonanlcopportnnity to rebut those charges. Gordon, 584 S.\V.2d al 688. The trial court must iss1re
adequate legal procBarlow, 899 S.W.2d at 795.
Here, S.C. D. spe<:ifit.il!y set out, in her motion to enforce, the !angunge from the agreed order for mutual
temporary injunctimi1i that rdalor helped to prepare:
4,:3 11 is ordered th<1i 1-'etitioner, R,E.D. and Respondent S.C.D. areenjoinemmt, or in the Alternafae, Motion for Clarification";
On ,Januaiy 16, :woll, Petitioner R.E.D. testified before this Court that he had sold all is~ues of stock with tile
exception of three ls~t«:!S in thl' parties' Ameritrade accow1t and that the sale gen":'rateddose lo S6oo,ooo,
The motion to enforrn ,;pecificallyalleged that re!ator admitted under oath thal he had sold 8600.000 in stock
from the parties· Amentrade account, thus giving relator notice ufthea!leglcd non-compliance-relator's
admission that he soi~tpcrsonalty from a commm1iLy asset. The motion !o enforce also alleged a specific date,
ct?
[Rdator]: Co1Teet
Based on th!s testinwityandndditiorw! t:vidence pfl.'sentNl at the hearing, the trial court made the following.
finding:
The> {;()urt. having h~.·~d411 (l'ex.Crim.App.1971). llffause he twice testified tliat he sold stock in the patties'
Ameritrad,~ acrmml~!_1ring the period lictween December 2007 nnd,Janumy2008, rdator had sufficient
information in the n10tior1 lo identify the stock transactions iu question.
Rebtor rdies OH fa µ\iflt' t'arm:yto argue that S.C,D.'s motion to enforce is so Jacking in specificity as to deny
rclator fair notice. See 903 S. \\'.2.d 345, :141-47 (Tex.1995). Carney is inapplicable tu U.is case. In Carney,
the re)atorwas gmnilf,! rdief after ajucl~menLcrcditor's motion for contempt based on the trial court's turnover
order was found Jacid11g "the requisite sp&.:ificity'' ,mfficie11t for fair nol!ce.
Id. at :346. In that case, the
motion for con temp\ ihat charged rel a tor with guilt did not give relator notice of U1e subject matter of the mo!ion
for contempt because ij'le turnover order the relator w,is held in contempt for violating ordered the turnover of
broadcateiories ofa~sets and documents without identif::,ing any specific docrnnenl<1 or asse!s to be turned
onir. Jd1 Nor was /ll\)'Other inforn)ation provided lo the relatorat!lie show cause hearing. kl. Real party in
interest in U1is ca:;e i~ not ajttdgment creditm; 1·e!ator is not a judgment debtor; the order violated was not a
turnover order; and the amount of money derived from the stock sa!e and ordered to be placed in the registry of
the cottrt was specilk.d!y identified and traced to relator's improper sale of stock both in the motion to enfor<'e
and in the hearing,
In addition to taM! I«½, rdator relics on subsection 157.002(b)(2) the Texas Family Code to argue thatS.C.D.
faih:d to meet the sial11Jory fair notice requirements found in the Code. Relatorci\es to a section of the Texas
Family Code app!it:abk 10 motions foreafon:ement used in suits affecting the parent~child relationship. See
Tex. Fam.Code Ann. § 157.on2(b)(2.) (Vernon 2002). Relator's reliance on subsection 157.002(b)(2) is
misplaced bee.am;;; thh; subsection governs only motion for enforcement of child suppo11 orders. See id.; S(:e
also
id. at§ 157.r.)01 ("A motion fotenforcementas provided in this chapter may bt' filed to enforce a final order
for conservatorship, ~hild su11port, possession of ot' access to a child, or other provisions of a final order.'").
We hold that relat0r had fair notice of the sa~ject matter of the contempt motion.
We overrule relator's :jl!cond issue.
Clear and Unambiguuus Order
ln his third issue, r~,Jator argues that the trial court's cvmmitmentorder is mid bt.'t.·ait~c tJic underlying ar;reed
or,-.l.Jr is unclear, general, ambiguous and sttbject to more than one interpretation.
In order to suppOf! a judgment of contempt, the underlying decree must set forth thetenns of compliance in
dear, specific and m/.Jrnbiguot1s terms so that the person cbMged with obeying it will readily know exactly
what duties andohligytions am imposed on him. Chambers, 898 S.\\'.2.d 257, 261. Generally, a court order is
insufficient tu support a contempt conviction only i,vhen its interpretation ·'requires inferences or conclusior1s
about which reasonah\e persons might differ." Chambers, 898 S. \.'\'.2dat 260 (citing E.x p;:irle MacCallum, 807
S.W.2d 729, 7'.)0 {Te~.1991)). To prevent tbeenforcement of a court order, the ft'Sisting pa1iy must show that
rhenrder has a reaso11;i.ble:iltcrnative construction, Id. The order does not have to use language so specific as
tn counter everyaltematiYe interpretation.
Id.
Relntor arguts thatfh(: following two po11ions oftheagrt'etlorder, when read together, creiile such ambiguity
tha!. the trial court's c1H11mitmentorder is mid:
4.3 It is ordered i11at Petitioner, R.E.D. and Respondent, S.C.D. an: enjoined from:
k. Selling, transferring, assigning, mortgaging, or in anyothermannerafa,n,iting any of th(' pmpertyof
Petitioner or Respo!llknt, whether personalty or realty, and whether scparateorcommanity. except as
specifically authorized by order of this C.Ourt.
4.4 It is furthcronkrl.'d that Petitioner, llB.D. and Respondent. S,C',D. arc authorized only as follows:
d. To enga)!.e in .id~ reasonable and 11l'C<.'ssal)· to conduct Petitioner or Respondent's usual hw>iness and
occupation.
Rein tor agrees tliat tht' plain meaning of section 4-3(k) of the agn,..-..,dorder permits only !he reasonable
interpretation that reh,torwas prohibited from selling the stock in the Ameritrade accorntt. liowe\·er, relator
http://case!aw. fi ndlaw.corn/tx-Q(:iurt-of-appea!s/1139626,htm I 4/6
12/22/2016 In re R.E.D. j Findlaw
argu<=s th<1t when ~c,q:;m 4.J(k) is mad together with section 4.4(tl}, the order becomes ambiguous bemm;c the
trial coml failed io d~i\ne "usual business and occupation<"
The puqmse of St:Clit>iJ 4.,.1(d) is ma(!e dear when read in context. The following sections comprise the entirety
of section 4.4 of the 1i,;reed urder:
4,4 Jt is furt!wrunki~ that Petitioner, R.E.n. and Respondent S.C.D. an•autlwrizedori!yas follows:
a. To nmke f'Xj301ll)\!Ures and incur indebtedness for reasonable and !lecessary li,ini:; e;;penses fnr fuod,
clothing, shelter, trnr,nxmai-ion and medical care;
b. To make exp,:ndi!itres and incur indebtedness for reasonable attorney's foes and expenses in connection
~,;ith !his suir:
c. To make withdnn,·als from accounts in finandul institutions only forU1e pmposes authorized by the C'om·t's
Orderand
d. To engage in t1Cl>' reasoaahJe und necessary to conduct Petitioner or Respondent's usual tmsiness and
occupation.
The purpose of SL'{;tion 4,4 is merely to create narrow exceptions to the prohibitions outlillL'tl in section 4.3 of
the agreed ord€r of immml temporary injunctions. These exceptions allow the parties to use funds for basic
living expenditures, bosiness expense;;, and legal help. 11w exception in section 4.4(d) does not modify the
language in section 4.J. S.C.D. crm"t:,'Ctly statt>s that the plain meaning of section 4,:l(k) could ht' interpreted
only as a dear prohl!iifion against selling personal community property, including stock in the Ameritrade
account.
Relator's own testimunyestablish<·d that he did nots~k authori1.ation frnm the trial conrtto sell the stock and,
in so doing, vio!atml Uic comi order. i!c faill'hose characterization as community propc:iywas disputcChambers, 898 S.W.2d at 261. Here, relator had notice
of the "Agre('d Mutu.~I fempora(}' Injunction" Ikea use rl'lator participated in the formation of the agre.:d order.
Paragraph 4.3 of the 11r,;reed order unambiguously prohibited relator from sel!ing or transferring any property,
whether pcrsmrnltyor renlty, sepnrate or community, "except as specifically authorized by order of tliis (.Ou.rt."
Relator's attorney sig;,.eJ the agreed order, approving it on relator's behalf as to form and substance. Rel a tor
testified !H' "knew al! about" the language and rights set forth in the agree162 Tex. 3i9, 382-83, 34i S.W.2d938,
940 (1961); sre also Tex. Fam.Code Ann.§§ 7.001, 7.on2 {Vernon ::!008). The district court cannot order
and bring a boat a d.ivbion of the community estate unless the estate is firsl subjected to the court's control.
Pr-eston, :347 S.W.2ctn1· 940. A party who has !lie right of control and clisposition ofU1c community estate and
who reduces a partof~rnt es late lo cash is nol a debtor of the other pa11y, but rather he is conslrncll\'elya
trustee in holding thid. There is no qut'Stion about the right of the trial court to hold a lnL'i!l'{' in t:ontempl of court
for willfully refusing 19 obey an order to pay over funds heldi.n his hands into the registryoftliecourt in such a
case. See id. ai ()
hUp://case!f:Nol.find!aw.com/tx-c~,urt-of-appeals/1139626.html 5/6
12/W2016 In re R.E.D. I FindLaw
Relatnr relies on in 1,; ~unu to suppott his argmnent that a trial courtcannnt incarcen:ite ,1 contemnor fora
debt, even if the deb, ~dses from the I.rial court's con!emptjuId. at649-50,
Here, the trial crn1i:1's commitml'ntorder docs not punish relator for failure 10 pay a damages award but for
violation of an injunq\on in the agreed order, issued pursuar1t to section 6.502(a)(7) of the Texas Family Code
for''the pn.·,~erva!lon (\f the property and protection of the p:,rfies." See Tex. Fam.Code Ann.§ 6.502(a)(7)
(Vernon 2.006). A l1j,1l court in a divort.e proceeding may exercise bnth criminal and civil contempt powers lo
enforce its orders whcp a contempt proceeding is instituted after its .iurisdiction has attached. See Wcrblud,
5:16 S.W.2.d at546-4),~ The trial court's ciYil commitment nrderorders relator to place the S:167,noo from the
stock sale into the l'Q'.1d's registry, and it orders him to be confined in the Harris County.Jail for rn days as
pu.nishment for hi~ violation of the order and to be further confined 1mtil he has placed the money into the
rcgistl}' of the court t~, ~oercc his compliance with tlH.' order. 11ie trial court had the power too punish the
violation of the agree~! order, and it had the power to coerce relator's compliance with it9 nnfor to place the
S,367,000 realized frt~m the: improper stock sale into the registry of the couti. Relalnr "carries the h')'S of (the)
prison in (his) own pn(:ket" Werb!ud, 536 S.W.2d at54,5. The trial court had jurisdiction to issue the
commitment order.
\Ve overrule appel!an_t'~ fourth issue.
Conclusion
We decline to issue" 1,Titufhaheas corpus and withdraw our Allg:ust 28, 2008 tempor.iiystnyofthc trial
court's order ofcomminnerlt.
FOOTKOTES
The turnover 1mkx directed the relatM to turn Ol'er tn the judgment creditor "his share of stock or beneficial
intl'rests 'togetherwitl; all documents or record.'! related !O same,' in sevea corporations owned or controlled by
[the rcaltorJ. includia~ [his] lnw practice; any non-exempt partnershipdist1ibutions; all non-exempt fimds in
cvcryaccountorct,rtifica!eofdeposit in which [he] has an interest; al! non-exempt income distributions due to
[him] from all busine,ises fhe] operates or in which he has ail,\'invo\vement; and all cash on hand." fa parte
Camey, 90;3 S. W.2d:14s, 346 (Tex.1995).
Tases ofcrimin~l contempt. where the sentence acl'uallr imposed does not f'_XC<.,'t:dmonths imprisonment
are exempted from lhe requiremenL<; of a jury trial.~ fa parte \.Verblnd, 536 S. W.2.d 542,547 (Tex.1976).
Relator's 10-daycrim.inal pttnishmentfor contempt does not im·oke the constitutional right to a jury.
EVELYl\'. V. KEYES, ,h_l"itice.
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EXHIBIT E
JAMIE GRAHAM
&ASSOCIATES. PLLC
December 22, 2016
Via Facsimile (830) 626-1414
Mr. James S. Bettersworth
The Betterswerth Law Firm
110 W. Faust Street
New Braunfels, Texas 78130
RE: Cause No. C2013-1375D; In the Interest ofJ.R.B., A Child, In the 433 rd Judicial
District Court of Comal County, Texas
Dear Mr. Bettersworth:
In that my attempts both yesterday and today to reach you by telephone have been
unsuccessful, please consider this my written notice pursuant to T.R.A.P. 52.10, that we are filing
a Motion for Emergency Stay with the Third Court of Appeals, with respect to the Order of
Contempt you filed in reference to the above captioned matter.
Thank you for your prompt attention to this matter.
AEM/ig
cc: Jonna and Jan1es Peltier
---------------·
310 S. St. Mary's Street, Ste. 2500 J San Antonio, Texas 78205
1'11(\'\E (210) 308-6448 ° IAX (210) 308-5669
www.jamieg1·ahamlaw.com
Send Result .leport
MFP
E'l?.2!2Ul6 15:Si'
Firmware Version 2LH_2F00.007.009 2013.11.27 [2lf _1000. OD6. OO?J f_ 2!:'.:_11(1/J, 00(.. fl(Jl] [2l.C_700{!. 007. 00 1i]
Job No.: 114392 Total Time: 0"00' 11· Page: 001
Complete
Document: doc11439220161222155635
JAtv\IE GRAHAlv1
1:;,.ASSOCIATES, PLLC
December 22, 2016
Via Facsimile (830/ 626-1414
Mr. James S. Bettersworth
The Betterswerth Law Fim1
110 \1/. Faust Street
New Braunfels, Texas 78130
RE: Cause No. C.2013-1375D; In the Interest ofJ. R.B., A Child, 111 the 433rd Judicial
District Cour/ of Comal County, Texc,s
Deru.· Mr. Bettersworth:
1
esterda and toda to re.ach you by telephone have been
No. Date and Time Destination Times Type Result Reso l uti on/ECM
001 l2/22il6 15:57 18306261414 0°00' 11· FAX 200x100 Norma 1 /On