Ex Parte Brister

801 S.W.2d 833, 34 Tex. Sup. Ct. J. 198, 1990 Tex. LEXIS 151, 1990 WL 207543

• Court: Texas Supreme Court
• Decided: December 19, 1990
• Docket: C-9567
• Status: Published

Opinions

OPINION

RAY, Justice.

In this original habeas corpus proceeding, the trial court held relator, the mother and managing conservator of a minor child, in contempt for her failure to deliver possession of the child to the father for a “period of possession” unilaterally designated by the father under the parties’ divorce decree. We hold the provisions of the divorce decree relator was found to have violated are not sufficiently clear and unambiguous to be enforced by contempt. We therefore hold the judgment of contempt is unenforceable and order relator discharged.

Deborah Brister and David Eugene Bris-ter were divorced by a decree which appointed Deborah managing conservator and David possessory conservator of their minor child, Ryan. In relevant part the decree provides:

IT IS ORDERED AND DECREED that [father] shall have possession of the child at all times as the parties may mutually agree, and failing mutual agreement, as follows:

Weekends. During periods each month, with the period of possession to begin at 6:00 p.m. on the first and third Fridays of each month and to end at 6:00 p.m. on the Sunday immediately following, (subject to modification as set out herein)

(Emphasis added.) The decree allows David to modify this visitation schedule to accommodate his working changing shifts, as follows:

IT IS ORDERED that the standard visitation schedule set out hereinabove shall be modified according to [father’s] work schedule by [father’s] giving to [mother] notice of not less than one week prior to the end of the preceding month the following month’s work schedule indicating work days and days off, notifying [mother] of visitations on days off beginning at 6:00 p.m. of one day through 6:00 p.m. of the second day following, said days off not to exceed two times per month. The altered standard visitation shall continue until [father] no longer works shift work or the minor child begins attending school, at which time standard visitation shall be in operation. In the event [father] is still working shift work at that time, IT IS FURTHER ORDERED that visitation will be scheduled on his days off that occur on weekends so as not to interfere with the child’s school arrangements.”

The only portion of the decree ordering Deborah to perform any action regarding visitation provides:

IT IS ORDERED AND DECREED that DEBORAH BRISTER, Managing Conservator, shall surrender the child to DAVID EUGENE BRISTER, Possessory Conservator, at the beginning of each period of possession at 109 Presidio, Portland, Texas.

David’s very first requests for visitation resulted in this dispute. In his motion to enforce the decree, David alleged that he modified the prescribed visitation schedule by giving Deborah his work schedule for the ensuing three months just three days after the decree was signed. That “work schedule” consisted of three months of a calendar with various dates marked “ON CALL”, “NIGHTS” or “DAYS”. At the beginning of the July month is the handwritten notation, “X indicates visitation rights to Ryan beginning at 6:00 p.m. ending 6:00 p.m. second day following”. Some “on-call” and otherwise unmarked dates were also marked with a handwritten “X.” David alleged that on the first date marked with an “X” he called and went by Deborah’s home, but no one was there. He further alleged that on the next two dates marked with an “X” he either called or went by Deborah’s home, but she refused to allow him to see Ryan. The trial court found that on each of the latter two occasions Deborah could have delivered possession to David’ but refused to do so, in violation of the decree. The trial court held Deborah in contempt and assessed punishment at a $500.00 fine for each of the two offenses and confinement in the county jail “for a total period of 30 days.” ¹ The trial court subsequently probated Deborah’s punishment conditioned upon her payment of attorney fees and monthly statutory supervisory fees, participation in an outpatient family counseling program, and submission to 60 days’ house arrest and electronic monitoring.²

To be enforceable by contempt a judgment must set out the terms for compliance in clear and unambiguous terms. See, e.g., Ex parte Reese, 701 S.W.2d 840 (Tex.1986); Ex parte Slavin, 412 S.W.2d43 (Tex.1967). The judgment must also clearly order the party to perform the required acts. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex.1979). The provisions of the divorce decree enforced here fail to meet these standards. The contempt order in this case enforces, not the specific requirements of the court, but the cryptic instructions of a party given with the court’s permission but without the certainty of detailed provisions of a decree. Consequently, the contempt order must be set aside. See Ex parte Gordon, 584 S.W.2d 686 (Tex.1979).

We are not unmindful of the difficulties trial judges face in setting visitation to accommodate parties’ fluctuating work schedules. We do not criticize the trial judge for ordering visitation as he did. To allow such a vague and cryptic extrajudicial “modification” of visitation to be enforced by contempt for failure to deliver possession, however, with the very serious consequences of punitive fine and confinement for contempt, is to give one former spouse a power over the other that due process will not permit. In the context of divorce, one former spouse cannot be empowered to impose upon the other unilaterally by ambiguous calendar notations the conditions of delivering possession for visitation, enforceable by fine and imprisonment. Personal liberty is too precious for a court to delegate to a party the giving of the instructions, however ambiguous, to avoid its loss.

Although Deborah has not been jailed, the restraint on Deborah’s liberty is sufficient to entitle her to habeas corpus review. See Ex parte Williams, 690 S.W.2d 243 (Tex.1985); see also Basaldua v. State, 558 S.W.2d 2 (Tex.Crim.App.1977). Because the trial court’s judgment of contempt conflicts with this Court’s opinion in Slavin, we grant the writ of habeas corpus and order relator discharged.

COOK, J., concurs with an opinion joined by HIGHTOWER, J. GONZALEZ, J., dissents with an opinion joined by PHILLIPS, C.J., and SPEARS, J.

1 . The contempt order is unclear whether the 30 days’ imprisonment was assessed for each offense found by the trial court or for both of them together.

2 . The original contempt judgment is unclear whether the two thirty-day sentences were to run concurrently or consecutively, if one assumes the judgment assesses two thirty-day jail sentences for contempt.