In re Celestine

IN RE JAKESIA SADE CELESTINE, Relator

NO. 14-14-00133-CV

State of Texas in the Fourteenth Court of Appeals

Dated: April 8, 2014

Petition for Writ of Habeas Corpus Granted in Part and Denied in Part, and Memorandum Opinion filed April 8, 2014.

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

247th District Court

Harris County, Texas

Trial Court Cause No. 2012-21521

MEMORANDUM OPINION

On February 13, 2014, relator Jakesia Sade Celestine filed a petition for writ of habeas corpus in this Court. See Tex. Gov't Code § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the Honorable Carolyn Marks Johnson, sitting as a visiting judge of the 247th District Court of Harris County, to vacate an order holding relator in criminal contempt and confining her to the Harris County Jail for 180 days in 48-hour weekend increments. OnFebruary 14, 2014, this Court ordered relator released upon the posting of bond, pending a final determination by this Court on the petition. See Tex. R. App. P. 52.8(b)(3). Having considered relator's petition and the real party's response, we grant relator's petition for writ of habeas corpus in part, and deny her petition in part.

BACKGROUND

Relator is the mother of a minor child, M.J.T. The real party in interest is M.J.T.'s biological father, Marcus Thompson. On January 30, 2013, final orders were issued in a suit affecting the parent-child relationship, pursuant to which relator was required to surrender M.J.T. to Thompson for possession and access on the first, third, and fifth weekends of every month, and on certain Thursday evenings during M.J.T.'s regular school term.

On April 15, 2013, Thompson filed with the trial court a motion for enforcement by contempt, alleging that relator "willfully and intentionally disobeyed" the court's orders by, inter alia, failing to surrender M.J.T. to Thompson on five specified dates. Thompson specifically asked that relator be held in criminal contempt and sentenced to 180 days in jail, and further requested that Thompson be awarded make-up dates for the times where his right to possession and access was denied. Thompson's motion was heard before the Honorable Meca Walker, associate judge of the 247th District Court on June 5, 2013, who denied the motion. Thompson then filed a request for a de novo hearing, alleging that relator again failed to surrender M.J.T. on June 7, 2013.

The de novo hearing occurred on October 25, 2013 and January 24, 2014 before the Honorable Bonnie Crane Hellums, presiding judge of the 247th DistrictCourt. At the conclusion of the hearing, the trial court found relator in contempt for failing to surrender M.J.T. on each of the dates alleged by Thompson in his original motion and request for de novo hearing. The court orally sentenced relator to 180 days in jail, to be served on weekends, and ordered her to pay attorney's fees.

A proposed contempt order was submitted to the trial court for entry on January 29, 2014. A visiting judge, the Honorable Carolyn Marks Johnson, was sitting by assignment at that time. Judge Johnson signed the written contempt order on January 30, 2014.¹ The order reflects the same specific instances of contempt cited by Judge Hellums at the hearing, imposes a sentence of 180 days in jail to be served on the weekends, and awards attorney's fees. The order also contains several provisions disputed by relator. These provisions include: (a) ordering relator to serve her sentence on each consecutive weekend; (b) setting a final release date of October 12, 2015; (c) awarding Thompson make-up time during the periods when relator is incarcerated; (d) characterizing the award of attorney's fees as child support and granting income withholding and a child support lien for enforcement of the fees award; and (e) ordering that "neither [relator] acting alone or [sic] in concert with [ ] her . . . attorney[] shall interfere or hamper" with certain "possession and access periods ordered for Marcus Thompson."

Relator filed her petition for writ of habeas corpus, in which she nominally presents four issues, but in actuality argues six issues. Relator asks this Court todeclare the contempt order void and unenforceable in its entirety, remove relator from her threat of incarceration, and to restore all her rights as primary conservator of M.J.T.

THE HABEAS CORPUS STANDARD

An original habeas corpus proceeding is a collateral attack on a contempt judgment. Ex parte Merrikh, 361 S.W.3d 209, 210 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) (per curiam); In re Stein, 331 S.W.3d 538, 540 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (per curiam); see also Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether she was afforded due process of law or if the order of contempt was void. Merrikh, 361 S.W.3d at 210; Stein, 331 S.W.3d at 540; see also Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). A court will issue a writ of habeas corpus if the order underlying the contempt is void, or if the contempt order itself is void. Merrikh, 361 S.W.3d at 210; Stein, 331 S.W.3d at 540; see also Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983) (orig. proceeding); Gordon, 584 S.W.2d at 688. An order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law. Merrikh, 361 S.W.3d at 210; Stein, 331 S.W.3d at 540; see also Ex parte Barlow, 899 S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding). Relator bears the burden of showing her entitlement to relief in a habeas corpus proceeding. Barlow, 899 S.W.2d at 794; see also In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding).

ANALYSIS

Issue No. 1: Inclusion of Additional Provisions in the Written Order

In her first issue, relator challenges the inclusion of provisions in the written contempt order that were not explicitly or clearly referenced in the trial court's oral rendition or reflected in the docket sheet entry. Relator argues in particular that the trial court's orders were ambiguous as to whether relator was required to serve her sentence each successive weekend or only during Thompson's weekends of possession. Relator, however, provides no legal citation or analysis to support her suggestion that a final, written contempt order cannot include provisions not explicitly stated in the court's oral rendering or reflected in the docket sheet entry. See Tex. R. App. P. 52.3(h) ("The petition must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record."). Therefore, relator has not satisfied her burden to demonstrate entitlement to relief on her first issue.

Issue No. 2: Compliance with Texas Family Code § 157.166

In her second issue, relator argues that the contempt order does not comply with Section 157.166 of the Texas Family Code, which specifies the requirements for an enforcement order. That section states, in relevant part:

(a) An enforcement order must include:

(1) in ordinary and concise language the provisions of the order for which enforcement was requested;

(2) the acts or omissions that are the subject of the order;

(3) the manner of the respondent's noncompliance; and(4) the relief granted by the court.

(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt.

Relator merely lists some of the requirements in Subsection (a) of this statutory provision, without explaining how the trial court's order is deficient. An examination of the order, however, reveals that the trial court did what was required. Specifically, the trial court stated the provisions of the underlying final orders that were the subject of Thompson's motion for enforcement. See Tex. Fam. Code § 157.166(a)(1), (b). The court identified the specific dates of relator's noncompliance, states how the noncompliance occurred, and holds relator in contempt for each of those instances. See Tex. Fam. Code § 157.166(a)(2), (a)(3), (b). And the court stated the relief granted. See Tex. Fam. Code § 157.166(a)(4). Part of the purpose of this statutory provision is to ensure that a contemnor is provided sufficient due process—i.e., notice of the when, how, and by what means the contemnor was guilty of contempt. See In re Davis, 305 S.W.3d 326, 332-333 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (per curiam); see also In re Broussard, 112 S.W.3d 827, 834 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). Relator does not identify any information required by statute or common law to satisfy due process that is missing from the trial court's order. Therefore, relator failed to satisfy her burden to demonstrate entitlement to relief on her second issue.Issue No. 3: Compliance with Texas Family Code § 157.168

In her third issue, relator argues that the contempt order violates Section 157.168(a)(1) of the Texas Family Code by awarding Thompson excessive makeup periods of possession of and access to M.J.T. That section provides: "A court may order additional periods of possession of or access to a child to compensate for the denial of court-ordered possession or access. The additional periods of possession or access[ ] must be of the same type and duration of the possession or access that was denied . . . ." Thus, a trial court abuses its discretion by awarding make-up time that is greater than those periods for which possession or access was denied in contravention of Section 157.168. See In re Ramberansingh, No. 05-13-00558-CV, 2013 WL 3871047, *1 ...