Court of Appeals of Texas, Second District, Fort Worth
In re C.F., Relator In the Interest of T.F., J.F., L.F., and W.F., Children
Original Proceeding Trial Court No. CIV-09-0919
Appeal from County Court at Law No. 1 Parker County, Texas
Trial Court No. CIV-09-0919
Sudderth, C.J.; Kerr and Pittman, JJ.
T. PITTMAN JUSTICE.
eight mandamus issues and fourteen appellate issues,
Appellant/Relator C.F. (Mother) complains of the trial
court's omnibus "Order Enforcing Child Support Order
with Commitment Suspended" (enforcement order), which
includes contempt findings, a commitment order,
community-supervision conditions, arrearage confirmations and
judgments, an award of costs and attorney's fees, and a
withholding order. In the mandamus proceeding (Cause No.
02-18-415-CV), we: (1) hold the entire commitment order void
as well as the contempt findings based on Mother's
failure to make student-loan payments and failure to take her
child to her primary care physician; (2) modify the
enforcement order by striking those provisions; (3) uphold
the child-support, medical-support, and
unreimbursed-medical-expenses contempt findings; and (4) deny
all other mandamus relief. In the appeal (Cause No.
02-18-350-CV), we modify the cumulative judgment on the
student-loan arrearage to reflect the amount of $4, 709.89
instead of $5, 529.89, and we affirm the modified enforcement
2018, Appellee/Real Party in Interest M.F. (Father) filed a
motion to enforce various liability and child-related
provisions of a 2010 agreed divorce decree, a 2015
modification order, and a 2017 temporary order against
Mother. Father requested that Mother be held in contempt,
confined, and placed on long-term community supervision. He
also sought confirmation of arrearages, attorney's fees,
costs, judgments thereon, and withholding. In its enforcement
order after a hearing, the trial court held Mother in
criminal contempt for:
• Failing to pay Father several listed child-support and
medical-support payments as ordered;
• "[E]ach individual violation of each medical
reimbursement payment not made in compliance with the Support
order" (but listing no violations);
• Not complying with the temporary order by failing to
use the children's primary care physician; and
• "[E]ach individual violation of each
[student-loan] payment not made in compliance with the"
divorce decree awarding her the student-loan debt (but
listing no violations).
trial court ordered Mother committed to jail for 180 days for
only one alleged violation-"Violation 147"-her
alleged failure to make one of many student-loan payments.
The trial court suspended Mother's jail commitment and
placed her on community supervision for 120 months.
trial court also found Mother in arrears in the amounts of
(1) $4, 709.89 for student-loan payments Father made and (2)
$86.50 for the children's unreimbursed medical expenses
as of September 11, 2018, and then granted Father a
cumulative judgment on each arrearage. Finally, the trial
court ordered Mother to pay Father's trial counsel $2,
100 in reasonable and necessary attorney's fees, taxed
Father's court costs against Mother, and ordered
"all support judgments awarded . . ., including child
support, child support arrearages, child support interest,
attorney's fees and costs and the interest on
attorney's fees and costs" to be withheld from
Mother's employment income.
filed a timely notice of appeal. Instead of an
appellant's brief, however, she filed a "Petition
for Writ of Mandamus and Alternative Appellant's Brief on
Appeal of Order Enforcing Child Support Order with Commitment
Suspended." This court notified the parties by letter
that Mother appeared to be asking for both mandamus relief
and appellate relief in her document, not one type or
another, because her issues challenged both the contempt
provisions and the arrearage provisions of the trial
court's enforcement order. See Cline v. Cline,
557 S.W.3d 810, 812 (Tex. App.-Houston [1st Dist.] 2018, no
pet.) (stating "there is no authority for treating a
case as both an original proceeding and an
appeal"). This court's letter stated that because
Mother filed an appeal and sought relief from the arrearage
judgment, her contempt issues would be dismissed for want of
jurisdiction absent a response showing this court had
jurisdiction over those issues. Mother responded to our
letter by filing a second document, entitled "Petition
for Writ of Mandamus," raising eight issues challenging
the trial court's contempt and commitment provisions in
the enforcement order.
therefore refer to the fourteen issues raised in Mother's
first-filed document as appellate issues and the eight issues
raised in her second-filed document, the mandamus petition,
as mandamus issues.
Mandamus is an Appropriate Vehicle for Relief from
argues mandamus is not the correct vehicle for Mother's
contempt issues because she is restrained (and thus confined)
by her terms of community supervision. He consequently argues
the only proper remedy for Mother's attack on the
contempt provisions of the enforcement order is through a
petition for writ of habeas corpus. Mother argues her
community-supervision terms do not restrain her because they
require her only to make payments as already ordered by the
trial court; thus, mandamus is the proper remedy. Mother is
enforcement order's community-supervision terms require
Mother to timely pay her share of uninsured medical expenses,
monthly payments on the non-support judgment, Father's
attorney's fees and costs for the enforcement proceeding;
and monthly payments on the remaining student-loan debt and
to comply with the trial court's valid orders-obligations
imposed on her by the trial court independently of community
supervision. We therefore hold Mother's
community-supervision terms do not restrain her liberty.
See In re Depeau, No. 14-14-00693-CV, 2014 WL
4952427, at *2 (Tex. App.-Houston [14th Dist.] Oct. 2, 2014,
orig. proceeding) (mem. op.) (holding relator was not under
restraint when her community-supervision conditions required
her only to comply with the divorce decree and to attend all
compliance hearings); In re W.H., No.
02-12-00370-CV, 2012 WL 4054874, at *6 n.5 (Tex. App.-Fort
Worth Sept. 17, 2012, orig. proceeding) (mem. op.) (stating
the conditions of relator's community
supervision-requiring him to make payments for current
medical- and child-support obligations and arrearages and
attorney's fees, expenses, and costs-did not subject him
to a restraint on his liberty). Mother's petition for
writ of mandamus is therefore properly before us.
Contempt Decisions Are Not Appealable.
grant the extraordinary relief of mandamus only when the
trial court has clearly abused its discretion and the relator
lacks an adequate appellate remedy. In re Team Rocket,
L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.
proceeding). As this court's presubmission correspondence
with the parties indicated, contempt decisions are not
appealable. Norman v. Norman, 692 S.W.2d 655, 655
(Tex. 1985); In re Office of Atty. Gen. of Tex., 215
S.W.3d 913, 915 (Tex. App.-Fort Worth 2007, orig.
proceeding); see Tex. Animal Health Comm'n v.
Nunley, 647 S.W.2d 951, 952 (Tex. 1983) (noting the
court of appeals dismissed the appeal of a contempt order for
want of jurisdiction "since judgments of contempt are
not appealable orders" and agreeing the court of appeals
"lacked jurisdiction to review the contempt
order"). We therefore dismiss Mother's first,
second, third, seventh, eighth, ninth, tenth, and eleventh
appellate issues, which challenge the enforcement order's
contempt provisions, and those portions of her thirteenth and
fourteenth appellate issues challenging the conditions of
We Grant Mandamus Relief Only if the Trial Court Abused Its
court abuses its discretion when it reaches a decision so
arbitrary and unreasonable that it is a clear and prejudicial
error of law or if it fails to correctly analyze or apply the
law to the facts. In re H.E.B. Grocery Co., 492
S.W.3d 300, 302- 03 (Tex. 2016) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)
(orig. proceeding); see also State v. Naylor, 466
S.W.3d 783, 793 (Tex. 2015) (orig. proceeding) ("A writ
of mandamus is an extraordinary remedy available 'to
correct an action of a trial judge who commits an abuse of
discretion or a violation of a clear duty under the
law.'" (quoting State v. Walker, 679 S.W.2d
484, 485 (Tex. 1984) (orig. proceeding))). The relator must
establish that the trial court could have reasonably reached
only one conclusion. H.E.B. Grocery, 492 S.W.3d at
303 (citing Walker, 827 S.W.2d at 840). We defer to
a trial court's factual determinations that have
evidentiary support, but we review the trial court's
legal determinations de novo. In re Labatt Food Serv.,
L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.
Mother Was Not Entitled to a Jury on the Contempt
first mandamus issue, Mother complains of the denial of her
jury demand. Her issue focuses only on the contempt portion
of the hearing. The trial court stated at the beginning of
the hearing that it would
not assess punishment to exceed six months, period,
regardless of what the pleadings say. And [Father's
enforcement motion] says not to exceed 18 months, I will say
not to exceed six months by my own ruling right now. So
I'm not going to grant the request for a jury trial.
was sentenced to 180 days in jail for Violation 147, her
alleged failure to make a specific student-loan payment.
contempt order imposes a fine of not more than $500 or
confinement in the county jail for not more than six months
or both, the punishment is characterized as
"petty," and the contemnor is not entitled to a
jury. Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir.
2000), cert. denied, 532 U.S. 1043 (2001); In re
Newby, 370 S.W.3d 463, 466 (Tex. App.-Fort Worth 2012,
orig. proceeding); see also Tex. Gov't Code Ann.
§ 21.002(b) (providing maximum punishments allowed for
contempt of court). Because Mother was sentenced to only 180
days in jail, she was not entitled to a jury. We overrule her
first mandamus issue.
The Trial Court Abused Its Discretion by Finding Mother in
Contempt for Failing to Make Student-Loan Payments and by
Ordering Her Committed for One of Those Violations.
enforcement order, the trial court found that although Mother
had the ability to pay, she failed to pay the student-loan
debt imposed on her in the divorce. The trial court further
found Mother "guilty of a separate act of contempt for
each individual violation of each [student-loan] payment not
made in compliance with the" divorce decree, but the
trial court did not list any of those violations in the
enforcement order. The trial court sentenced Mother to 180
days' confinement for one alleged violation-Violation
147-and suspended the sentence.
second, third, and seventh mandamus issues, Mother challenges
the trial court's finding her guilty of contempt for
failing to pay the student-loan payments. In her second and
third mandamus issues, she also challenges the trial
court's sentencing her for her alleged failure to make
one student-loan payment.
I, section 18 of the Texas Constitution provides, "No
person shall ever be imprisoned for debt." Tex. Const.
art. I, § 18. Thus, holding someone in contempt for
nonpayment of a debt is unconstitutional. See Tucker v.
Thomas, 419 S.W.3d 292, 297 (Tex. 2013) ("The Texas
Constitution prohibits a trial court from confining a person
under its contempt powers as a means of enforcing a judgment
for debt."); In re Green, 221 S.W.3d 645, 647
(Tex. 2007) (orig. proceeding); In re Henry, 154
S.W.3d 594, 597-98 (Tex. 2005) (orig. proceeding); Ex
parte Hall, 854 S.W.2d 656, 656-57 (Tex. 1993) (orig.
proceeding); In re McGonagill, No. 2-07-034-CV, 2007
WL 704888, at *3 (Tex. App.-Fort Worth Mar. 5, 2007, orig.
proceeding) (mem. op.); In re Lozano, 263 S.W.3d 87,
92 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding).
"A commitment order that violates the Texas Constitution
is beyond the court's power and is void."
Henry, 154 S.W.3d at 596.
divorce court finds an asset exists and awards it in the
divorce to one spouse, the other spouse who holds the asset
is not indebted to the spouse owning the asset but is a
constructive trustee and can be held in contempt. Ex
parte Preston, 347 S.W.2d 938, 940-41 (Tex. 1961) (orig.
proceeding); cf. Tex. Fam. Code Ann. § 9.011.
However, there was no indication in the divorce decree that
Mother was awarded funds in the divorce from which to pay the
student-loan debt; ...