In Re M.W. v. the State of Texas
This text of In Re M.W. v. the State of Texas (In Re M.W. v. the State of Texas) 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.
Opinion
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00212-CV ___________________________
IN RE M.W., Relator
Original Proceeding 467th District Court of Denton County, Texas Trial Court No. 2013-30025-211
Before Wallach, J.; Sudderth, C.J.; and Kerr, J. Per Curiam Memorandum Opinion MEMORANDUM OPINION
In this original proceeding, Relator M.W.1 (Father) seeks mandamus relief from
the trial court’s April 30, 2024 Order denying his First Amended Motion for
Enforcement of Possession and Access (Father’s Motion). Father raises two issues: (1)
whether the trial court arbitrarily altered its prior Order in contradiction to the plain
language of the final Order and (2) whether the trial court abused its discretion in
finding the final Order ambiguous and unenforceable. Because the record is
insufficient to show Father’s entitlement to the relief he seeks, we deny Father’s
petition.
I. BACKGROUND
Since their divorce,2 Father and Real Party in Interest S.W. (Mother) have
entered into multiple mediated settlement agreements leading to multiple
modifications of their respective parent–child relationships with their two children.3
The trial court signed Orders modifying Mother’s and Father’s rights, duties,
1 To protect the identities of Relator and Real Party in Interest’s minor child, we identify the parties by their initials only. See Tex. Fam. Code Ann. § 109.002(d). 2 Father states in his mandamus petition that he and Mother “were divorced via a Final Decree of Divorce signed on September 17, 2014.” However, no such divorce decree appears in the record Father included with his petition. 3 Mother and Father are the parents of two children, the older of whom turned 18 prior to the commencement of this mandamus proceeding. The provisions of the Order that Father was seeking to enforce in the trial court pertain only to the younger child, B.W.
2 possession of, and access to the children in 2016 and 2022.
Father filed his enforcement motion on February 9, 2024, and amended it on
April 9, 2024. In his Motion, Father alleged that Mother had repeatedly violated the
2016 and 2022 modification Orders. At a hearing on April 30, 2024, the trial court
found that “the terms of the [2022] Order in regards to holiday access and possession
[were] ambiguous” and denied Father’s Motion. 4
Father then filed a Petition for Writ of Mandamus and an Emergency Motion
for Temporary Relief with this court. We denied the motion for temporary relief on
May 10, 2024.
II. DISCUSSION
Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25
(Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both
that the trial court clearly abused its discretion and that the party has no adequate
4 In the 2022 Order, under the heading, “(c) Periods of Possession for [the child],” and the subheading, “Waiver of Obligation to Surrender the Child,” the trial court Ordered “that [Mother]’s obligation to surrender the child . . . to [Father] shall be conditioned upon [the child]’s expressed desire for [Father] to exercise any such possession period” and further Ordered that [Mother] “shall not interfere with [Father’s] periods of possession that are agreed to between [the child] and [Father].” This language is immediately followed by the heading, “(d) Holidays Unaffected by Distance,” and the language, “Notwithstanding the periods of possession of [Father] and [Mother] as Ordered herein above, [Father] and [Mother] shall have the right to possession of the children as follows.” What “follows” is a strict possession schedule for Christmas, Thanksgiving, spring vacation, the child’s birthday, Father’s Day, and Mother’s Day. As part of its ruling on Father’s Motion, the trial court stated, “Based on everything that’s in this Order, I would clarify that the terms under C regarding agreement of the child apply to the terms in section D.” 3 remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig.
proceeding). To justify mandamus relief, the relator must provide the appellate court
with a sufficient record to establish his relief. Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding); see also Tex. R. App. P. 52.7.
In his petition, Father argues that the trial court has abused its discretion and
that he has no adequate remedy at law. He contends that the trial court abused its
discretion by (1) “failing to interpret the term ‘notwithstanding’ in accordance with
it[]s commonly accepted meaning and to give effect to that meaning as it pertains to”
the 2022 Order and thereby finding the 2022 Order to be ambiguous and
unenforceable, and (2) “clarifying the [2022 o]rder to hold that the ‘notwithstanding’
carve-out . . . is actually a vestigial provision and that all periods of possession are
subject to the desire and agreement of the subject child.” Mother responds that
ambiguous language in the Order “necessitated clarification,” that the trial court’s
clarification was reasonable in light of the evidence, and that therefore the trial court
did not clearly abuse its discretion. She also argues that Father has an adequate
remedy by appeal.
A trial court may enforce by contempt any provision of a temporary or final
Order. Tex. Fam. Code Ann. § 157.001. In Father’s Motion, he asked the trial court to
hold Mother in contempt. It was Father’s burden to prove in the trial court that
Mother should be held in contempt. See In re Aslam, 348 S.W.3d 299, 303 (Tex.
App.—Fort Worth 2011, orig. proceeding); see also In re Pursuit of Excellence, Inc., No. 4 05-18-00672-CV, 2018 WL 6566644, at *5 (Tex. App.—Dallas Dec. 13, 2018,
orig. proceeding) (mem. op.) (“At a hearing on a motion for contempt, the movant
first has the burden of introducing evidence that the respondent did not comply with
the terms of the Order sought to be enforced.”); In re W.L.C., No. 2-03-103-CV, 2004
WL 1218955, at *1 (Tex. App.—Fort Worth June 3, 2004, orig. proceeding) (mem.
op.) (stating that movant for enforcement “had the burden to prove his case in
chief”); Ex parte McIntyre, 730 S.W.2d 411, 417 (Tex. App.—San Antonio 1987, orig.
proceeding) (“At a hearing on a motion for contempt, the movant first has the burden
of introducing evidence that the respondent did not comply with the terms of the
Order sought to be enforced.”).
Here, Father did not bring forth a factual record sufficient for us to assess the
trial court’s ruling. Although he detailed in his Motion how Mother had allegedly
violated the trial court’s 2022 Order, he did not verify his Motion or attach any
exhibits that proved up the alleged violations to it.5 Further, the reporter’s record of
the April 30 hearing that both Mother and Father have provided shows the trial
court’s ruling—and nothing else. We have no idea what, if any, evidence was received
5 Additionally, we note that, in his Motion, Father requested “that for each violation alleged . . .
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