In re Braden

483 S.W.3d 659, 2015 Tex. App. LEXIS 12196, 2015 WL 7739850
CourtCourt of Appeals of Texas
DecidedDecember 1, 2015
DocketNO. 14-15-00698-CV
StatusPublished
Cited by14 cases

This text of 483 S.W.3d 659 (In re Braden) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Braden, 483 S.W.3d 659, 2015 Tex. App. LEXIS 12196, 2015 WL 7739850 (Tex. Ct. App. 2015).

Opinion

OPINION

PER CURIAM

On August 19, 2015, relator Jennifer Braden filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R.App. P. 52. In the petition, relator asks this court to compel the Honorable Ronald Pope, presiding judge of the 328th District Court of Fort Bend County, to set aside the February 27, 2015 amended order of enforcement by contempt. We conditionally grant the petition in part and deny it in part.

I. Background

The parties, who have one child, have never been married. Relator resides in Texas, and Father resides in New York. On November 22, 2013, the Hon. David Farr of the 312th District Court of Harris County signed an order appointing the parties joint managing conservators of the child and awarding relator the exclusive right to designate the primary residence of the child in Texas and New York. The case [661]*661was subsequently transferred to the 328th District Court in Fort Bend County.

On May 16, 2014, Father filed a motion for enforcement of possession or access and, alternatively, motion to modify. Father alleged that relator had failed to comply with the November 22, 2013 order by, among the twenty-nine violations alleged, failing to deliver the child to the airport on January 17, 2014, for a four-day visitation in New York, and he requested that relator be held in contempt. Father further requested that he be awarded additional periods of possession to compensate for those periods in which relator did not surrender the child. -Father further sought modification of the November 22, 2013 order by appointing him the person who has the right to designate the child’s primary residence based on relator’s interference with his possession and access to the child.

On November 13, 2014, relator filed her “Original Answer, Response in Opposition, and Special Exceptions to Petitioner’s Motion for Enforcement of Possession or Access, or in the Alternative, Motion to Modify.” Relator asserted that she was not able to comply with the order because Father had failed to purchase the airline tickets for the child for the 17, 2014 visitation.

The associate judge of the 328th District Court, the Honorable Walter Armatys, held an evidentiary hearing on the motion to enforce on December 15, 2014. At the conclusion of the hearing, Judge. Armatys found relator in contempt for not turning the child over to Father for the January 17, 2014 visitation. Judge Armatys announced that relátor was sentenced to sixty days’ confinement, with the sentence being suspended conditioned upon compliance with the underlying order and future compliance with the contempt order.

Judge Armatys awarded Father sixty-two days of make-up visitation, and a judgment in the amount of $5,088.50 — $4,500 in attorney’s fees and $588.50 in airline fees. Relator was ordered to pay $200 per month toward the judgment. Judge Ar-matys ordered relator to return to court on April 21, 2015, and August 19, 2015, for compliance hearings. Judge Armatys also modified the November 22, 2013 order by reducing Father’s monthly child support payment from $1,032.27 to • $229.00. Judge Armatys signed the contempt order 'and suspension of commitment at a hearing on January 7, 2015.

On December 22, 2014, relator filed a motion to reconsider, which Judge Arma-tys denied at the January 7, 2015 hearing. Relator filed a motion to modify, correct, or reform the judgment on February 3, 2015, complaining in part that Judge Ar-matys had improperly modified the underlying order in the contempt judgment. Judge Armatys held a hearing on the motion on February 16, 2015, and granted the motion to modify, in part, and denied it, in part. On February 27, 2015, Judge Arma-tys signed two separate orders — an' amended order for enforcement by contempt and a modification order reducing Father’s .monthly child support payment. Judge Armatys signed findings of fact and conclusions of law on April -6, 2015, regarding the contempt and the modification rulings.

On April 9, 2015, relator filed a motion for de novo review of the orders signed by Judge Armatys on February 27, 2015. On April 29, 2015, Judge Armatys signed an order vacating the February 27, 2015 temporary orders in the modification suit, which had reduced Father’s monthly child support payment. '

On June 18, 2015, Father filed a motion to revoke the suspension of commitment of February 27,2015, and sought an order for ■relator to appear. On June 22, 2015, rela[662]*662tor filed a motion to dismiss Father’s motion to modify and temporary orders for failure to state a cause of action and want of prosecution.- Relator also filed-a motion for the' adoption, modification, or rejection of Judge Armatys’s February 27, 2015 amended contempt order by the referring court. According to relator, Judge Arma-tys informed her, on June 25, 2015, that Judge Pope, the presiding judge of the 328th District Court, .had already signed and adopted the February 27,2015 amended contempt order. The February 27, 2015 amended order contains Judge Pope’s signature, although it does not reflect the date on which he signed it.

In this mandamus proceeding, relator requests, that we compel Judge Pope to vacate the February 27, 2015 amended contempt order.

II. Standard of Review

Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, but may be reviewed by writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig. proceeding) (per curiam on reh’g). To be entitled to mandamus relief, a relator must demonstrate (1) the. trial court clearly abused its discretion; and (2) the-relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex.2011) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam). Contempt orders are not appealable. Parham Family Ltd. P’ship v. Morgan, 434 S.W.3d 774, 789 n. 15 (Tex.App.-Houston [14th Dist.] 2014, no pet.); Glassman v. Goodfriend, 347 S.W.3d 772, 780-81 (Tex.App.-Houston [14th Dist.] 2011), pet. denied) (en banc). Therefore, no adequate remedy by appeal exists.

III. Analysis

A. January 17,. 2014 Visitation

1. Purchase & Delivery of the Child’s Airline Tickets

Relator claims that Father did not purchase a ticket for the child with an escort or deliver the ticket to her pursuant to the November 22, 20Í3 order. Relator, therefore, contends that she was precluded from putting the child on the flight to New York on January 17, 2014, by Father’s failure to comply'with the terms of the November 22, 2013 order.

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Bluebook (online)
483 S.W.3d 659, 2015 Tex. App. LEXIS 12196, 2015 WL 7739850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-braden-texapp-2015.