The difficulties of the COVID-19 pandemic led to reversal of a contempt finding in a family-law dispute about how to pass a child from one divorced parent to another:

“Here, the requirement that Hilburn surrender the child ‘at the school in which the child is enrolled’ became reasonably susceptible to more than one meaning when the child’s physical school closed, and the child moved to a virtual learning environment at his grandfather’s house. Although the child was enrolled at a public elementary school, he did not attend the physical school building nor was he enrolled in classes held at the school itself. Hilburn’s view that the physical location where the child is engaging in school constitutes the place of enrollment is, thus, one reasonable interpretation of the terms of the 2012 Order as applied to a virtual learning environment.”

In re Hilburn, No. 05-20-01068-CV (March 21, 2022) (mem. op.) (emphasis added).

A contempt/sanction order entered in a dispute about a divorce degree was vacated by In the Interest of E.W.M., No. 05-19-01589-CV (Jan. 7, 2022) (mem. op.): “Here, the record shows the enforcement proceedings could have resulted in Marc’s incarceration. Thus, the trial court was required to inform Marc that he had a right to counsel. See [Tex. Family Code ] § 157.163 (a), (b). But instead of informing Marc of that right, the trial court affirmatively misrepresented that, because Sarah did not seek more than six months of jail time, he had no right to counsel. This was clear error, and we are not persuaded by Sarah’s arguments to the contrary.”

This is a cross-post from 600Hemphill, which follows commercial litigation in the Texas Supreme Court. A high-profile 2020 dispute about the enforcement of a COVID-related TRO against a Dallas-area hairdresser was resolved in In re Luther by finding the TRO void. It said:

The Texas Supreme Court found that this order did not satisfy Tex. R. Civ. P. 683, as “it nowhere specifies any particular state, county, or city regulation that Luther has violated, is threatening to violate, or is being commanded to stop violating. Nor does it describe with specificity which ‘in-person services’ were restrained, such that performing them would cause Luther to violate the temporary restraining order.” No. 20-0363 (April 9, 2021). (NOTE–While the case was never before the Fifth Court, the supreme court opinion notes: “In light of the considerable uncertainty surrounding the multiplicity of orders and regulations issued by public officials throughout the State in the early months of the COVID-19 pandemic, we conclude there was a compelling reason for Luther to file her petition in this Court without first filing in the court of appeals.”)

Discovery problems led to a contempt finding and an order imposing jail time in In re Duncan, No. 05-19-01572-CV (May 14, 2020) (mem. op.) The Fifth Court granted habeas relief, noting this basic due-process requirement in this area:

“Contempt may be. . .divided into civil or coercive contempt, which involves confinement pending obedience to the trial court’s order, and criminal or punitive contempt, which results in a punishment for past transgressions. In cases where the trial court seeks to impose criminal or punitive constructive contempt, due process requires a contemnor to either be present or affirmatively waive his or her presence for the contempt hearing.. When the contemnor fails to appear for the contempt hearing, the trial court must issue a capias or writ of attachment to secure the contemnor’s presence.”

(emphasis added, citations omitted, applying, inter alia, In re Reece, 341 S.W.3d 360 (Tex. 2011), and Ex parte Alloju, 907 S.W.2d 486 (Tex. 1995)).

The trial court held Steven Topletz in contempt for not producing documents about a family trust, punishing him with a fine and 14 days in jail. The Fifth Court denied his habeas application, noting that Topletz, as a trust beneficiary, had a right under the trust instrument to request the relevant material (thus distinguishing In re: Kuntz, 124 S.W.3d 179 (Tex. 2003), which involved the petitioner’s physical access to documents he did not have a legal right to.) In re Topletz, No. 05-19-00327-CV (Sept 11, 2019) (mem. op.).

In civil practice, petitions for habeas corpus are uncommon but important when they arise – usually because of a contempt finding about compliance with an injunction or other court order. In re Huddleston reminds of an important procedural requirement: “To obtain habeas relief, the relator must provide proof that he is currently being restrained.” In that case, because “[t]e record includes no proof that relator was arrested or that relator remains confined or restrained,” the petition “does not provide the Court with the proof of current restraint required by [Tex. R. App. P.] 52 and should, therefore, be denied.” No. 05-18-01110-CV (Sept. 25, 2018) (mem. op). See generally In re: Daugherty, No. 05-17-001129-CV (June 19, 2018) (mem. op.) (reviewing sufficiency of evidence to support findings of injunction violations).

In a family-law holding of broader applicability to injunctions generally, Barnes v. Barnes affirmed a contempt holding related to a failure to pay a substantial amount of child support. The petitioner contended, inter alia, that the divorce decree’s requirement “that he pay . . . ‘50% of the after tax (regular payroll taxes for single deduction) proceeds’ of various compensation, performance awards, and stock sales makes the decree fatally ambiguous,” due to dispute about the appropriate tax treatment for those matters. The Fifth Court disagreed, noting that he “offer[ed] no justification for his failure to pay at least the amount he conceded he owes . . . or his failure to deliver the deferred compensation related documents. We conclude the divorce decree is sufficiently clear to inform David of his obligation to provide documentation and payment to Jennifer. The fact that the experts disagreed on which tax rate to apply, does not excuse David’s complete lack of compliance with the decree’s mandate regarding deferred compensation.” No. 05-16-00241-CV (Feb. 23, 2018) (mem. op.)

In some detail, the district court ordered Altesse Healthcare not to deplete the assets of a business, whereupon: “Altesses’s actions in failing to comply with the TRO resulted in destroying the value of the company over which the lawsuit was based. In essence, Altesse took over running the company and then failed to make the scheduled payments when due, leaving the Wilsons without the company or payment. After the trial court ordered Altesse to return the company to the Wilsons, Altesse delayed and by the time it returned the necessary assets to run the business, there was little left to run.” The Fifth Court affirmed the trial court’s detailed order awarding “death penalty” sanctions and other penalties, including contempt. Altesse Healthcare Solutions v. Wilson, No. 05-15-00906-CV (Aug. 23, 2016) (mem. op.)

Self-explanatory: “Here, the record shows the trial court set the show cause hearing for November 12. The record does not contain any notice for any other hearing that day, nor does it contain notice of a final trial setting. Thus, while Pollard had reasonable notice that the issue before the trial court on November 12 was whether the independent executor should be removed, he had no notice that the hearing would result in a final determination of his homestead rights. To the extent the trial court considered and ruled Pollard abandoned his homestead rights in the Beverly Drive house or on any issues other than the show cause, the trial court erred. Because Pollard did not receive proper notice, his due process rights were violated, and we must reverse the trial court’s order.”

In this habeas corpus proceeding, Charles Miller challenged the trial court’s decision to incarcerate him for contempt.  Mr. Miller had failed to produce certain documents required by court order, leading to the contempt finding and his confinement.  Specifically, the trial court found Miller guilty of constructive contempt, which is contemptuous conduct outside the presence of the court.  Miller argued that he was not given proper notice of the contempt charge, and the Court of Appeals agreed, because in cases involving conduct outside the presence of the court, “due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt and a reasonable opportunity to defend the charges or explain the conduct.”  Because Miller was not afforded that opportunity, the Court granted him habeas corpus relief.

In re Miller

A habeas corpus case arising out of an underlying divorce proceeding helps to illustrate the limits of a court’s authority to imprison a litigant for contempt. The trial court ordered the wife to pay her former husband $40,000 secured by a lien on a residence awarded to her in the divorce, to be paid six months after the decree. After that date came and went without payment, the husband moved for contempt, and the trial court sentenced her to confinement in the Hunt County jail until she tendered payment. The Court of Appeals ordered her to be released, citing the Texas Constitution’s provision that “No person shall ever be imprisoned for debt.” Tex. Const. art I, §18. Although the trial court could have jailed the wife for failing to comply with a court order to turn over specified property or funds (e.g., “the $40,000 in Wife’s savings account”), that authority did not extend to the failure to pay a pure debt to the other spouse. The Court therefore granted habeas corpus and ordered that the wife be unconditionally released.

In re Kinney, No. 05-14-00159-CV