Texas Appeals Court Concluded Father Did Not Have Sufficient Notice for Contempt Order

Parents sometimes have difficulty getting their child’s other parent to comply with a Texas custody or visitation order.  If a parent fails to comply with requirements to exchange the child, the other parent may seek enforcement of the court’s order, sometimes through contempt.  In a recent case, a father challenged a court’s contempt order.

According to the appeals court’s opinion, the trial court entered a standard possession order in 2012 that set forth where the exchanges were to occur.  When the mother’s possession ended, the exchange occurred at her home.  When the father’s possession ended, it occurred at either his home or the mother’s home, depending upon circumstances set forth in the order.  The trial court signed a modification order on the mother’s motion in March 2017 that changed the exchange location to the police department parking lot.  The modification order also allowed the parties to change the location in writing.  In August 2017, the parties entered a Rule 11 agreement moving the exchange location to a different police department parking lot and the court signed and the court signed an order adopting their agreement.

The mother filed a motion for enforcement by contempt in 2023.  She relied on the original 2012 order and the 2017 modification order. The father moved for a directed verdict because the mother did not plead “the date, the time, and the place of the alleged violations,” but the motion was denied.

The mother testified at the hearing. She acknowledged the exchange location was changed in writing after the March 2017 modification order.

The trial court overruled the father’s renewed objection and request for a directed verdict. The trial court found he violated the orders six times between December 19, 2018 and August 22, 2021.  All of these dates were after the parties entered the Rule 11 agreement, but the trial court never mentioned the agreement or the corresponding order.  The trial court held the father in contempt for all six instances and committed him to county jail for 100 days per violation, to run concurrently.  The commitments were suspended and the court put the father on 48 months of non-reporting supervision.

The father moved for rehearing and reconsideration and alternatively for a new trial.  He argued that the Rule 11 agreement modified the March 2017 modification order.

In its findings of fact and conclusions of law, the trial court found the mother’s motion stated the date, place, time, and manner of each occurrence and included the parts of the 2012 and March 2017 orders that had been violated.  The trial court’s findings and conclusions did not reference the Rule 11 agreement or the August 2017 order.

The trial court questioned the Rule 11 agreement’s validity because there was no modification motion accompanying it.  The father argued, however, that the agreement was valid because the March 2017 modification order stated the exchange location could be modified in writing. The court denied the father’s motions.

Due Process

Because contempt proceedings are quasi-criminal, an accused party is entitled to procedural due process.  The accused must have full and complete notice of the allegedly contemptuous act before the court can punish them for contempt occurring outside the court or “constructive contempt.” The accused must be notified of when, how, and the manner of the alleged contempt. A contempt order is void if the party does not receive adequate notice.  In Texas, an order is only enforceable by contempt if it states the requirements for compliance clearly, specifically, and unambiguously.

The appeals court noted that the March 2017 clarification order stated the parties could modify the location for exchange in writing.  The appeals court concluded the parties did so with their Rule 11 agreement.  Rule 11 agreements are not court orders and therefore cannot be enforced by contempt.  In this case, however, the trial court had also incorporated the Rule 11 agreement into a court order.  The mother did not allege in her motion that the father violated either the Rule 11 agreement or the August 2017 order

Pursuant to Tex. Fam. Code Ann. § 157.002(c), a motion for enforcement of a custody order must state “the date, place, and if applicable, the time of each occasion” of noncompliance.  The appeals court noted that noncompliance could have occurred at either of the two police departments, depending on which document controlled the location of the exchanges.  Despite referencing the 2021 and March 2017 modification orders, neither the mother nor the trial court addressed the ambiguity in location.

The appeals court noted that the mother’s motion relied on the March 2017 modification order but her evidence relied on the Rule 11 agreement or the accompanying August 2017 order.

The appeals court concluded that the mother’s motion failed to comply with Tex. Fam. Code Ann. § 157.002(c).  Without the location information, there was not adequate notice and the contempt order was void.  The appeals court directed the trial court to vacate the contempt order.

Contact a Texas Family Law Attorney

Contempt can be an appropriate tool for enforcing a custody or visitation order, but certain procedures must be followed.  Whether you are seeking or opposing an enforcement order, a skilled Texas custody lawyer can help you.  Schedule a consultation by calling McClure Law Group at 214.692.8200.

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