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In re Silva

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

IN RE Deborah SILVA

          Original Mandamus Proceeding [1]

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice.

         PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

         Relator asserts the trial court abused its discretion by rendering an Order of Enforcement By Contempt and Suspension of Commitment. After reviewing relator's arguments, we conclude her argument that the underlying judgment is not specific enough to be enforced by contempt is dispositive. Therefore, in this opinion, we do not address her remaining arguments. See Tex. R. App. P. 47.1. We agree and conditionally grant the petition for writ of mandamus.

         BACKGROUND

         On December 11, 2014, the trial court signed an order granting relator's petition to adopt three minor children. The adoption order incorporated by reference the terms of an attached Exhibit A, which set forth the terms of possession and access to the children by their grandmother, Kimberlee.

         In 2017, Kimberlee filed a Motion for Enforcement of Possession or Access, in which she alleged relator "failed to comply with the [adoption] order" by denying access on thirty-one different dates. The trial court granted the motion, finding relator "failed to comply with and has violated the provisions of the [adoption] order" on six of the alleged dates. The trial court assessed a $100 fine for three of the alleged violations, assessed confinement in jail for three of the violations for a period of 180 days for each violation, and ordered payment of attorney's fees to Kimberlee's attorney. The trial court suspended commitment and placed relator on unsupervised community supervision for ten years.

         Relator filed a petition for writ of mandamus, alleging several complaints. One of relator's complaints is that the adoption order and the incorporated-by-reference Exhibit A are not specific enough to be enforced by contempt. It is true the adoption order does not order relator to do or not do anything. In fact, that order does nothing more than grant the adoption, and does not mention Kimberlee. Exhibit A contains the "Parenting Plan, " which names Kimberlee a non-possessory grandparent with standing and sets forth the terms of Kimberlee's possession of and access to her grandchildren. The decretal paragraphs in Exhibit A order only Kimberlee to do certain things if she wants access to the children. The order does not contain any decretal paragraphs ordering relator to do or not do anything.

         AVAILABILITY OF MANDAMUS RELIEF

         Ordinarily to obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). Contempt orders that do not involve confinement are not appealable by habeas corpus; therefore, no adequate remedy by appeal exists. In re Braden, 483 S.W.3d 659, 662 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding) (per curiam). When, as here, the contempt order does not involve confinement, the only possible relief is a writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam on rehearing). Because relator does not have an adequate remedy by appeal, the only remaining question is whether she has shown the contempt order is unenforceable.

         ANALYSIS

         "To be enforceable by contempt, a judgment must set out the terms for compliance in clear and unambiguous terms." Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding); see also Tex. Fam. Code Ann. § 157.421(a), (b) (West 2014) ("A court may clarify an order rendered by the court in a proceeding under this title if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt. . . . The court shall clarify the order by rendering an order that is specific enough to be enforced by contempt."). "The judgment must also clearly order the party to perform the required acts." Brister, 801 S.W.2d at 834. The judgment must be sufficiently specific such that the person charged with obeying the judgment will readily know exactly what duties and obligations are imposed. See Ex parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995) (orig. proceeding). If the court's judgment requires inferences or conclusions about whether particular conduct is encompassed by the judgment and concerning which reasonable persons might differ, the judgment is insufficient to support a contempt order. Id. And, if the judgment enforces the instructions of a party, rather than the specific requirements of the court, a contempt order enforcing the judgment must be set aside. See Brister, 801 S.W.2d at 834-35.

         The facts of this case are similar to those in Brister and In re Martin, 523 S.W.3d 165 (Tex. App.-Dallas 2017, orig. proceeding). In Brister, the trial court found that the mother violated the divorce decree by failing to deliver possession of the child to the father on two occasions. The decree allowed the father possession "at all times as the parties may mutually agree, and failing mutual agreement, " on certain weekends. The decree also allowed the father to modify the visitation schedule to accommodate his work schedule. However, the only portion of the decree ordering the mother to perform any action regarding visitation stated she "shall surrender the child to [father] at the beginning of each period of possession at [a specific address]." The Supreme Court held the contempt order should be set aside because it "enforce[ed], not ...


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