In re R.H.B.

1

IN THE INTEREST OF R.H.B., III AND C.D.B., CHILDREN & IN RE Rolando H. BRIONES, II

Nos. 04-21-00038-CV, 04-21-00339-CV

Court of Appeals of Texas, Fourth District, San Antonio

March 30, 2022

Original Mandamus Proceeding

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-16615 Honorable Karen H. Pozza, Judge Presiding

PETITION FOR WRIT OF MANDAMUS DENIED; AFFIRMED AS MODIFIED

Sitting: Patricia O. Alvarez, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice

OPINION

Beth Watkins, Justice

In this consolidated direct appeal and original proceeding appellant/relator Rolando H. Briones, II challenges two orders in a suit affecting the parent-child relationship. We deny Briones's petition for writ of mandamus, modify the trial court's judgment, and affirm the judgment as modified.

Background

Briones and appellee/real party in interest Krista Bragg divorced in 2016. Their August 30, 2016 final decree of divorce ("the 2016 decree") provided, inter alia: (1) Briones would pay child support of $2, 137.50 per month and contractual alimony of $2, 000 per month; (2) Briones would maintain health insurance for the children and pay 75% of their unreimbursed health care expenses; (3) as part of the marital property division, Briones would pay Bragg $72, 900 by September 30, 2015, $8, 000 by October 15, 2015, and $25, 000 by January 30, 2016 ("the W-12, W-13, and W-14 payments"); (4) Briones would repay "any sums withdrawn by him [from the children's 529 accounts], including interest or fees incurred as a result of such withdrawal within eighteen (18) months"; and (5) Briones would pay for the children's piano and swim lessons and specified percentages of their private school tuition.

On September 29, 2016, Briones filed a motion to modify the 2016 decree. Bragg filed a counterpetition to modify followed by four motions to enforce the 2016 decree. Three of those motions are relevant to this appeal:

1. Bragg's Motion for Enforcement of Child Support alleged that on multiple occasions, Briones failed to pay child support and his share of the children's piano lessons, swim lessons, and health care expenses. She requested a "confirmation of all arrearages and rendition of judgment for all arrearages," jail time, and a fine of up to $500 "for each violation alleged" in her motion.

2. Bragg's Petition for Enforcement of Spousal Maintenance alleged that on seventeen occasions, Briones failed to pay alimony. She sought a contempt finding, punishment by jail and fine for each violation, and a "money judgment, including interest, against" Briones for the total unpaid amount.

3. Bragg's Petition for Enforcement of Property Division by Contempt alleged twenty-seven separate violations of the 2016 decree, including the seventeen alimony violations alleged in the Petition for Enforcement of Spousal Maintenance. The other alleged violations included complaints that Briones had not repaid the funds he withdrew from the children's 529 accounts and had not made the W-12, W-13, and W-14 payments. Bragg requested that Briones be held in contempt, jailed, and fined for each violation alleged. She also requested a clarification of any portion of the 2016 decree that was not specific enough to be enforced by contempt.

Bragg amended her motions several times to increase the number of violations alleged, to add an allegation that Briones had not paid his share of the children's school tuition, and to request further clarifications of the 2016 decree. She also amended her Petition for Enforcement of Property Division to request a money judgment for the amounts she claimed were owed to her.

On August 7, 2019, the trial court appointed Ana Laura Hessbrook to serve as an amicus attorney. The order appointing Hessbrook specified that Bragg "is responsible for Ms. Hessbrook's fees but she may request realignment of these fees at the trial on the merits."

The parties tried their enforcement and modification motions to the bench in September of 2019. On September 10, 2019, the parties announced on the record that they had reached agreements on certain issues in the modification action. On September 11, 2019, the trial court orally announced, inter alia, that it:

• approved the parties' agreements "on the modifications" and "render[ed] those [agreements] Orders of the Court";

• approved the parties' agreement on the "past due amounts" of child support and medical support, found Briones in contempt for violating the 2016 decree's child support and health care provisions, and ordered him to pay a "$10, 000 sanction fine" for those violations;

• ordered Briones and Bragg to split Hessbrook's amicus fees;

• found that the piano, swimming, and tuition provisions of the 2016 decree were not enforceable by contempt "and will require additional evidence to make the requested clarification Orders";

• found Bragg's spousal maintenance claim was not enforceable by contempt;

• denied Briones's request for attorney's fees;

• found Briones in contempt for failing to make the W-12, W-13, and W-14 payments; awarded Bragg a money judgment for the amount of those payments; and ordered Briones to pay "a sanction fine for contempt in the amount of $50, 000" for his failure to make those payments;

• found the "funds as stated in the divorce decree were in existence at the time the decree was rendered"; • awarded Bragg a money judgment for unpaid alimony;

• awarded Bragg, as trustee of the children's 529 accounts, "judgment for [Briones's] removal of funds" from those accounts and ordered Briones to pay specific amounts the court found he owed to each child's account;

• found Briones's "multiple continued violations of the Order are egregious and that sanctions are appropriate and warranted and necessary and required";

• awarded Bragg attorney's fees, subject to the presentation of additional evidence on segregation of recoverable fees from unrecoverable fees; and

• awarded Bragg court costs of $6, 166.30.

Between September 11, 2019 and August 10, 2020, neither party raised any complaints about the trial court's oral rulings or sought the entry of a written order.

On August 10, 2020, Bragg filed a motion to enter a written order. After a hearing, the trial court orally denied Bragg's claim for attorney's fees, concluding she had not segregated recoverable fees from unrecoverable fees. It also orally ruled that the amounts it had previously ordered Briones to pay "can all be classified as domestic support obligations" and would be paid in monthly installments of $800. On October 21, 2020, the trial court signed two written orders- one on Bragg's enforcement motions, and one on the parties' competing modification petitions (the Modification Order). In addition to the contempt rulings the court orally announced on September 11, 2019, the October 21, 2020 enforcement order found Briones in contempt "for wrongfully removing funds from" the children's 529 accounts. The written order did not assess any penalties for this contempt finding, but instead repeated the court's previously announced money judgment of separate amounts to be paid toward each child's account.

Bragg sought reconsideration of the denial of her attorney's fees, and the trial court agreed to hear additional evidence on that issue. On February 3, 2021, the trial court signed a new order on Bragg's enforcement motions (the Enforcement Order). The February 3, 2021 Enforcement Order differed from the October 21, 2020 written enforcement order in two respects: (1) it awarded Bragg attorney's fees of $20, 175; and (2) it made the $10, 000 contempt fine for Briones's failure to pay child support payable "to the General Fund for the State of Texas" and removed a designation describing that fine as "additional child support owed." The Enforcement Order did not otherwise alter the rulings the trial court had memorialized in writing on October 21, 2020. That same day, Briones filed a notice of appeal and a motion for extension of time to file his notice of appeal.^[1]

On March 3, 2021, Briones filed a "Motion to Set Aside, Correct, Amend, and/or Reform Judgment." This motion was Briones's first written challenge to the contempt rulings. Because the Honorable Karen Pozza-the judge who had originally heard and decided the parties' enforcement and modification motions-had retired, Briones set his motion for hearing before the newly elected judge of the same court, the Honorable Tina Torres. Judge Torres declined to hear Briones's motion and signed an order referring the matter to Judge Pozza, who had been appointed to sit as a visiting judge. Judge Pozza subsequently denied Briones's motion.

On August 4, 2021, Briones filed his appellant's brief in the direct appeal. On August 13, 2021, Briones filed a petition for writ of mandamus. We granted Briones's motion to consolidate the direct appeal and the mandamus proceeding.

Analysis

Mandamus

Briones's petition for writ of mandamus asserts four challenges to the trial court's contempt rulings. He also argues that because the trial court judge who made the contempt rulings retired during this litigation, the successor judge abused her discretion by refusing to hear Briones's Motion to Set Aside, Correct, Amend, and/or Reform Judgment.

Standard of Review and Applicable Law

A trial court's contempt ruling cannot be reviewed on direct appeal. In re C.C.E., No. 04-20-00416-CV, 2021 WL 3173913, at *2 (Tex. App.-San Antonio July 28, 2021, no pet.) (mem. op.). Where, as here, the trial court does not order the contemnor confined, a contempt judgment must be challenged through a petition for writ of mandamus. Id. To be entitled to mandamus relief, the contemnor/relator must show a clear abuse of discretion or a...