in Re: Stanislav Bilder

Opinion

WRIT GRANTED and Opinion Filed December 16, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00929-CV

IN RE STANISLAV BILDER, Relator

Original Proceeding from the 468th Judicial District Court Collin County, Texas Trial Court Cause No. 468-51319-2019

MEMORANDUM OPINION

Before Justices Molberg, Pedersen, III, and Garcia Opinion by Justice Garcia

The trial court found relator Stanislav Bilder in criminal contempt for three

violations of child-support provisions in a SAPCR order. Bilder seeks habeas relief

from the contempt order. The question presented is whether the contempt order

adequately sets forth “the date of each occasion when [Bilder’s] failure to comply

with the [SAPCR] order was found to constitute criminal contempt.” TEX. FAM.

CODE ANN. § 157.166(b). We hold that the contempt order does not satisfy

§ 157.166(b) and therefore grant habeas corpus relief. I. BACKGROUND

A. Trial-Court Proceedings

In December 2019, the trial judge signed an Order in Suit to Modify Parent–

Child Relationship that appointed Bilder and real party in interest Olga Zedrick as

joint managing conservators of one child. The order required Bilder to pay Zedrick

child support of $1,400 per month on the first day of each month beginning

December 1, 2019.

In March 2022, Zedrick filed a motion for enforcement of the December 2019

order. She alleged that Bilder violated the December 2019 order fifty times, and she

requested that Bilder be held in criminal contempt. Pertinent to this original

proceeding, Zedrick alleged that Bilder underpaid his child-support obligations for

the months of January, February, and March 2020.

Bilder filed an answer, and the trial judge held an evidentiary hearing on

Zedrick’s motion for enforcement.

On September 19, 2022, the trial judge signed both an Order on Motion for

Enforcement and for Commitment (the “Contempt Order”) and an order of

commitment. In the Contempt Order, the judge found Bilder in criminal contempt

for three child-support violations pertinent to this original proceeding. First, the

judge misquoted the child-support provision from the December 2019 order as

follows (boldface omitted):

–2– “Child Support

IT IS ORDERED that Stanislav Bilder is obligated to pay and shall pay to Olga Lesya Sytnianska Zedrick child support of [$1,400.00] per month, with the first payment being due and payable on December 1, 2019, and a like payment being due and payable on the first (1st) day of each month thereafter until the first month thereafter…[”]

(Ellipsis in original.) The last word, thereafter, is wrong; in its place, the December

2019 order actually says “following the date of the earliest occurrence of one of the

events specified below: . . . .”

The Contempt Order later recites as follows:

Criminal Contempt Findings

....

Violation 5: For the month of January 2020, Stanislav Bilder paid $200.00, but failed to pay $1,200.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

....

The Court specifically finds that Stanislav Bilder is in contempt for violation 5 enumerated above.

....

Violation 8: For the month of February 2020, Stanislav Bilder paid $200.00, but failed to pay $1,200.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

Violation 11: For the month of March 2020, Stanislav Bilder paid $300.00 but failed to pay $1,100.00 of the $1,400.00 in –3– child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

....

The Court specifically finds that Stanislav Bilder is in contempt for violations 8 and 11 enumerated above.

For violation 5, the judge ordered Bilder to be jailed for 180 days beginning

September 19, 2022, and to pay a $500 fine. For violations 8 and 11, the judge

ordered Bilder to be jailed for 180 days, but she suspended the sentence for ten years

beginning on September 19, 2022, conditioned on Bilder’s compliance with the

relief granted in the Contempt Order.

The habeas record filed by Bilder includes a document entitled “Jail Records

Search Detail” showing that Bilder was “Booked” on September 19, 2022.

B. Proceedings Before This Court

On September 21, 2022, Bilder filed in this Court a petition for writ of habeas

corpus and an emergency motion for interim relief seeking immediate discharge

while Bilder awaited preparation of the reporter’s record. We granted temporary

relief directing that Bilder be released upon posting a $500 bond, and we requested

Zedrick to file a response.

Bilder later filed a supplemental record containing the reporter’s record of the

enforcement hearing and an amended petition for writ of habeas corpus. Zedrick

filed a response to Bilder’s amended habeas petition, and Bilder filed a reply brief.

–4– II. ANALYSIS

A. Applicable Law

1. Original Habeas Corpus Proceedings

An original habeas corpus proceeding is a collateral attack on a judgment of

contempt. In re Johnson, 337 S.W.3d 486, 488 (Tex. App.—Dallas 2011, orig.

proceeding). To obtain relief, the relator must show that the contempt order is void,

not merely voidable, and he must conclusively show his entitlement to the writ. Id.

A contempt order is void if it is beyond the power of the court to render it or if it

deprives the relator of liberty without due process of law. Id. Habeas relief is proper

and will issue if a contempt order does not comply with Family Code § 157.166. See

id. (granting habeas relief and stating, “Because the March 11, 2011 amended order

does not comply with the requirements of section 157.166 of the family code and

the March 7, 2011 order is a new contempt order rather than a revocation order, we

conclude the orders are void.”).

2. The Evolution of Family Code § 157.166(b)

This proceeding turns on the current version of Family Code § 157.166(b),

but some of the cases discussed below involve prior versions of that provision. Thus,

we briefly review the evolution of § 157.166 to put the case discussions in context.

In 1985, the legislature adopted Family Code § 14.33 concerning the required

contents of enforcement orders. It provided, in pertinent part:

Section 14.33. ORDER OF COURT. (a) Contents. An enforcement order shall contain findings setting out specifically and

–5– with particularity or incorporating by reference the provisions of the order, decree, or judgment for which enforcement was sought, and the time, date, and place of each and any occasion on which the respondent failed to comply with such provision . . . .

Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1162

(emphasis added).

We applied the 1985 version of the statute to a pair of cases involving a

respondent who had been held in contempt for failing to pay child support. In one,

we held that an enforcement order was void because it did not specify either (i) the

provisions of the prior order that the respondent had violated or (ii) the time, date,

and place of each occasion on which the respondent violated the prior order. Ex parte

Durham, 708 S.W.2d 536, 537–38 (Tex. App.—Dallas 1986, orig. proceeding). In

the other, however, we held that the omission of the place of the violation was not

fatal to the contempt order because (i) the contempt order referred by date, volume,

and page to the divorce decree establishing the child-support obligation and (ii) the

divorce decree required the respondent to make his child-support payments through

the Dallas County Child Support Office. Ex parte Conoly, 732 S.W.2d 695, 697

(Tex. App.—Dallas 1987, orig. proceeding). Under those facts, we concluded that

the omission of the place of each of the respondent’s failures to pay did not make

the enforcement order so ambiguous as to be unenforceable. Id.

In 1987, the legislature added the word “final” before the words “order,

decree, or judgment.” Act of July 20, 1987, 70th Leg., 2d C.S., ch. 73, § 7, 1987

Tex. Gen. Laws 225, 229. –6– In 1989, the legislature substantially rewrote § 14.33(a) as follows:

(a) Contents. An enforcement order shall contain findings setting out in ordinary and concise language the provisions of the final order, decree, or judgment for which enforcement was sought, the acts or omissions that are the subject of the order, the manner of noncompliance, and the relief awarded by the court. If the order imposes incarceration or a fine, an enforcement order must contain findings setting out specifically and with particularity or incorporating by reference the provisions of the final order, decree, or judgment for which enforcement was sought and the time, date, and place of each occasion on which the respondent failed to comply with the provisions ....

Act of July 16, 1989, 71st Leg., 1st C.S., ch. 25, § 27, 1989 Tex. Gen. Laws 74, 86

(emphases added).

Applying the 1989 version of the statute, the Texas Supreme Court twice

granted habeas relief to a respondent who had been found in contempt for failure to

pay child support because the enforcement order did not contain the required time,

date, and place findings. Ex parte Garcia, 795 S.W.2d 740, 741 (Tex. 1990) (orig.

proceeding) (per curiam); Ex parte Holland, 790 S.W.2d 568, 568 (Tex. 1990) (orig.

proceeding) (per curiam). We also held that “[t]he punitive portion of an

enforcement order that does not comply with the statutory requirements of section

14.33(a) of the Texas Family Code is void.” Ex parte Stanley, 826 S.W.2d 772, 773

(Tex. App.—Dallas 1992, orig. proceeding) (enforcement order did not sufficiently

identify prior order that was being enforced).

In 1993, the legislature struck § 14.33(a)’s requirements that the trial court

find the time and place of each violation:

–7– . . . If the order imposes incarceration or a fine, an enforcement order must contain findings setting out specifically and with particularity or incorporating by reference the provisions of the final order, decree, or judgment for which enforcement was sought and the [time,] date[, and place] of each occasion on which the respondent failed to comply with the provision . . . .

Act of May 28, 1993, 73rd Leg., R.S., ch. 798, § 13, 1993 Tex. Gen. Laws 3169,

3174 (deletions from prior version indicated).

In 1995, the legislature repealed § 14.33 and enacted § 157.166, subsection

(b) of which provided as follows:

(b) If the order imposes incarceration or a fine, an enforcement order must contain findings setting out or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent failed to comply with the order.

Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 182.

Applying this version of the statute, we held that an enforcement order was void

because it did not list the dates of each occasion when the respondent failed to pay

child support as ordered or the amount of child support that came due on each date.

Ex parte Pina, No. 05-97-01478-CV, 1998 WL 10222, at *1 (Tex. App.—Dallas

Jan. 14, 1998, orig. proceeding) (not designated for publication).

Finally, in 1999, the legislature amended § 157.166(b), bringing it to its

current form:

(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when

–8– the respondent’s failure to comply with the order was found to constitute criminal contempt.

FAM. § 157.166(b).

In Texas codes, the word must “creates or recognizes a condition precedent”

unless the context necessarily requires a different construction or the statute itself

provides a different construction. TEX. GOV’T CODE ANN. § 311.016(3). And the

ordinary meaning of date, in this context, is the day when an event happened or will

happen. See In re Walkup, 122 S.W.3d 215, 217 (Tex. App.—Houston [1st Dist.]

2003, orig. proceeding) (citing BLACK’S LAW DICTIONARY 400 (7th ed. 1999)); see

also Date, THE NEW OXFORD AMERICAN DICTIONARY (2001) (“a particular day or

year when a given event occurred or will occur”).

Under the current version of the statute, at least one court of appeals has

granted habeas relief because a contempt order did not “identify the date of any

occasion when relator’s failure to comply constituted criminal contempt.” Ex parte

Merrikh, 361 S.W.3d 209, 210 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding) (per curiam).

Finally, we note the legislative purpose of § 157.166(b) and its predecessors.

A contempt order must contain specific findings to provide sufficient information

for adequate review and to enable the contemnor to overcome the presumption of

the order’s validity by proof, if any is available. Ex parte Conoly, 732 S.W.2d at

697. Another purpose of the statute is to protect the delinquent party from being

prosecuted more than once for a particular unpaid child-support payment. Ex parte –9– Haynie, 793 S.W.2d 317, 320 (Tex. App.—Houston [14th Dist.] 1990, orig.

proceeding).

B. Applying the Law to the Facts

Bilder’s argument is straightforward: § 157.166(b) required the trial judge to

find the date, meaning the specific day of the month and year, of each occasion when

Bilder failed to comply with an order, and the trial judge did not do so. Instead, the

trial judge made these findings in the Contempt Order:

Violation 5: For the month of January 2020, Stanislav Bilder paid $200.00, but failed to pay $1,200.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

....

Violation 8: For the month of February 2020, Stanislav Bilder paid $200.00, but failed to pay $1,200.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

Violation 11: For the month of March 2020, Stanislav Bilder paid $300.00 but failed to pay $1,100.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.

Bilder argues that a contempt order from which the dates of noncompliance must be

extrapolated does not satisfy § 157.166(b). Alternatively, he argues that it is

impossible to reasonably extrapolate the dates of noncompliance from this Contempt

–10– Order because (i) the Contempt Order misquotes the order being enforced and

(ii) the order being enforced orders Bilder to make child-support payments on certain

specified dates, not “for” any particular month.

Zedrick responds that § 157.166(b) does not require any “special formulation”

for the findings of the dates of noncompliance, that the scrivener’s error resulting in

a misquoting of the original order does not invalidate the Contempt Order under

§ 157.166(b), and that the phrase “For the month of [January/February/March]

2020” does not make the Contempt Order unclear.

We agree with Bilder that the Contempt Order fails to satisfy § 157.166(b)

and that he must therefore be discharged, based on the following reasoning.

First, we conclude that the statute requires the trial judge make a finding of

each date, meaning the specific day, month, and year, when Bilder committed an act

constituting criminal contempt. See FAM. § 157.166(b); In re Walkup, 122 S.W.3d

at 217.

Second, we conclude that the Contempt Order does not contain express

findings of the three dates on which Bilder committed acts constituting criminal

contempt. We have quoted the relevant passages above, and they do not expressly

find those dates.

Third, we assume without deciding that Zedrick is right that an order governed

by § 157.166(b) passes muster if the required date findings can reasonably be

inferred from the order as a whole. On the facts of this case, no such inference is

–11– possible. As Bilder argues, the Contempt Order misquotes the December 2019 order

being enforced to such an extent that a reader of the Contempt Order cannot

reasonably infer the dates, if any, on which Bilder was obligated to make child-

support payments. Thus, a reader of the Contempt Order also cannot reasonably infer

the dates on which Bilder committed the acts constituting criminal contempt—

despite the inclusion of the phrase “For the month of [January/February/March]

2020.”

We have found no cases precisely on point, but one case involving reasonably

similar facts is Ex parte Duncan, 795 S.W.2d 10 (Tex. App.—El Paso 1990, orig.

proceeding). In that case, a trial judge held Duncan in contempt for failing to pay

court-ordered child support. Id. at 10. The contempt order recited, for example, that

on counts one through six, the payment due dates were “7-1-80 to 12-1-80,” and

Duncan failed to pay $380. Id. at 12. Nevertheless, the court of appeals held that the

order did not “specify exact dates of non-compliance” and that those defects, among

others, invalidated the contempt order. Id. at 10. We reach the same conclusion on

the facts of this case.

Finally, we distinguish our opinion in Ex parte Conoly, in which we held void

a contempt order that was required, under the governing statute at the time, to state

the time, date, and place of every violation by the contemnor. 732 S.W.2d at 697.

The contemnor argued that the order was void because it omitted the place where he

was required to make his child-support payments. Id. We held that this omission

–12– alone did not invalidate the contempt order because (1) the contempt order

sufficiently incorporated by reference the divorce decree, which stated the single

place where all the payments had to be made; (2) the motion for contempt also set

out the relevant provision of the decree; and (3) there was no dispute over the place

where the contemnor was required to make his payments. Id. In this case, however,

the governing statute requires a finding of only one particular fact about Bilder’s

contemptuous conduct—the date—and the Contempt Order does not contain such a

finding, either expressly or by reasonable implication. We consider this finding

essential to accomplish the statutory purposes of enabling review of the order and

preventing a contemnor from being punished twice for the same conduct. See id.; Ex

parte Haynie, 793 S.W.2d at 320. Accordingly, we conclude that Ex parte Conoly is

distinguishable and not controlling.

C. Conclusion

We sustain Bilder’s sole issue in this original proceeding and hold that the

part of the Contempt Order holding Bilder in criminal contempt is void.

III. RELIEF GRANTED

We grant habeas corpus relief and vacate the criminal-contempt provisions of

the September 19, 2022 Order on Motion for Enforcement and for Commitment

signed by Judge Lindsey Wynne of the 468th Judicial District Court of Collin

County, Texas, in cause number 468-51319-2019. We order that relator Stanislav

Bilder be unconditionally released and discharged from the custody of the Sheriff of

–13– Collin County under the September 19, 2022 order. We further discharge the bond

paid by relator in accordance with this Court’s order of September 21, 2022.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

220929F.P05

–14–