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In re C.F.

Court of Appeals of Texas, Second District, Fort Worth

May 1, 2019

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

          On Appeal from County Court at Law No. 1 Parker County, Texas Trial Court No. CIV-09-0919

          Before Sudderth, C.J.; Kerr and Pittman, JJ.



         In 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 order.


         In 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).

         The 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.

         The 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.

         Mother 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.

         We 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.


         I. Mandamus is an Appropriate Vehicle for Relief from Contempt.

         Father 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 correct.

         The 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.

         A. Contempt Decisions Are Not Appealable.

         We 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 community supervision.[1]

         B. We Grant Mandamus Relief Only if the Trial Court Abused Its Discretion.

         A trial 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. proceeding).

         II. Mother Was Not Entitled to a Jury on the Contempt Issues.

         In her 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.

         Mother was sentenced to 180 days in jail for Violation 147, her alleged failure to make a specific student-loan payment.

         If a 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.

         III. 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.

         In the 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.

         In her 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.

         Article 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.

         When a 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. ยง 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; ...

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