In Re Kuster

363 S.W.3d 287, 2012 WL 787362, 2012 Tex. App. LEXIS 1952
CourtCourt of Appeals of Texas
DecidedMarch 12, 2012
Docket07-12-00071-CV
StatusPublished
Cited by27 cases

This text of 363 S.W.3d 287 (In Re Kuster) 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 Kuster, 363 S.W.3d 287, 2012 WL 787362, 2012 Tex. App. LEXIS 1952 (Tex. Ct. App. 2012).

Opinions

OPINION

MACKEY K. HANCOCK, Justice.

Relator, Dyanne Kuster, has filed in this Court her petition for writ of mandamus. In it, she asks this Court to direct the trial court to declare void its order finding her in contempt for several violations of a child custody order. We will conclude that Dyanne has not shown herself entitled to the relief requested nor any other relief associated with the trial court’s order and will deny her petition.

Factual and Procedural History

Dyanne Kuster and Shannon Kuster were domestic partners raising two children, born during the partnership, when the partnership dissolved. The trial court determined custody of the children. The order in effect at the relevant times was signed on September 23, 2009, and provides that Dyanne is the joint managing conservator with the right to establish the primary residence of the children and Shannon is a non-parent joint managing conservator with standard visitation.

In November 2011, alleging a number of violations of the terms of possession in the custody order, Shannon moved for enforcement of the order. Shannon alleged that, beginning in January 2011 and continuing through October 2011, Dyanne began to interfere with Shannon’s visitation periods by misinforming Shannon of the whereabouts of the children, most frequently the daughter. On a number of occasions, Dyanne kept the daughter out of school and refused to surrender possession of her.

Following a hearing on Shannon’s motion, the trial court found Dyanne in contempt of court for violating the child custody order on fifteen occasions. On December 22, 2011, the trial court signed its order of contempt, permitting Dyanne to purge herself of contempt by (1) serving 180 days in the Potter County jail and (2) serving an additional period not to exceed six months in the county jail until she paid Shannon’s court costs in the amount of $64.50. Dyanne went to the county jail.

On January 20, 2012, while she was incarcerated, Dyanne filed in the trial court her application for writ of habeas corpus. The trial court held a hearing on her application on February 1 and denied her the relief sought. The next day, however, it appears that the trial court, through some unidentified mechanism or action, ordered that Dyanne be released from jail.

Dyanne has now filed in this Court her petition for writ of mandamus. In it, as she did below, she argues that the trial court’s order of contempt is void for two [290]*290reasons: (1) it unconstitutionally deprives her of her rights to direct the care and custody of her children, and (2) it unconstitutionally incarcerates her for payment of a debt, amounting to confinement to debt- or’s prison. She asks that we direct the trial court to declare its contempt order void for these reasons. We decline to do so.

Mandamus Relief

Mandamus Generally1

Mandamus is an extraordinary remedy that will issue only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). A writ of mandamus is a judicial writ directed at an individual, official, or board to whom it is addressed to perform some specific legal duty to which the relator is entitled under legal right to have performed. Crowley v. Carter, 192 S.W.2d 787, 790 (Tex.Civ.App.-Fort Worth 1946, orig. proceeding). The party applying for the writ has the burden of showing that the trial court abused its discretion as well as the inadequacy of appeal as a remedy. In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex.App.-Tyler 2005, orig. proceeding).

Analysis

Dyanne fails to show that she is entitled to mandamus relief because she fails to demonstrate that the contempt order of which she complains is still in effect such that we could direct the trial court to declare it void. In fact, it would appear the effect of the trial court’s February 2nd act of ordering Dyanne released and allowing for the return of the children to her care granted her the very relief she requests here by way of mandamus. In re Perritt, 992 S.W.2d 444, 446 (Tex.1999) (orig. proceeding) (per curiam) (“A party’s right to mandamus relief generally requires a predicate request for some action and a refusal of that request.”).

To Dyanne’s contention that she operates under a continued threat that the trial court could reinstate the contempt order, we respond that we are prohibited from issuing advisory opinions by way of writ of mandamus or otherwise. See Tex. Const, art. V, § 6; City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985) (“A court has no jurisdiction to render an opinion on a controversy that is not yet ripe.”). So, to the extent that her petition seeks mandamus relief based upon events that have not yet occurred and remain merely hypothetical, we conclude that we are without jurisdiction to render advisory opinions on factual situations that may or may not arise in the future. See Jones v. Westergren, 771 S.W.2d 669, 671 (Tex.App.-Corpus Christi 1989, orig. proceeding); see also In re State, No. 13-10-[291]*29100264-CV, 2010 WL 2011521, at *4-5, 2010 Tex.App. LEXIS 3808, at *14-15 (Tex. App.-Corpus Christi May 17, 2010, orig. proceeding) (mem. op.).

We decline to direct the trial court to declare void an order the effectiveness or viability of which we do not know. Nor will we by way of writ of mandamus direct any future action or conclusion of the trial court with respect to enforcement of its active custody order. It has long been the law that “[t]he office of mandamus is to execute, not to adjudicate. It does not ascertain or adjust mutual claims or rights between the parties.” Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939) (orig. proceeding). For the foregoing reasons, Dyanne has not shown herself entitled to mandamus relief. Accordingly, we deny her petition for writ of mandamus.

Habeas Corpus Relief

In one sentence, Dyanne alternatively seeks habeas corpus relief. Because the basis for such relief is undeveloped, we cannot ascertain the precise nature of her contentions and will, based on the record before us, address her entitlement to habe-as corpus relief generally.

Limited Jurisdiction over Habeas Corpus Proceedings

This Court, along with the Texas Supreme Court, has very limited jurisdiction over habeas corpus proceedings.2 See Tex. Gov’t Code Ann. § 22.221(d) (West 2004); see also Tex. Gov’t Code Ann. § 22.002(e) (West Supp. 2011) (governing the Texas Supreme Court’s habeas jurisdiction); In re Reece,

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Cite This Page — Counsel Stack

Bluebook (online)
363 S.W.3d 287, 2012 WL 787362, 2012 Tex. App. LEXIS 1952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kuster-texapp-2012.