in Re Tammy Fountain

• Court: Court of Appeals of Texas
• Decided: December 28, 2012
• Docket: 01-12-00704-CV
• Status: Published

Opinion

Opinion issued December 28, 2012

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00704-CV ——————————— IN RE TAMMY FOUNTAIN, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

OPINION

In this habeas corpus proceeding, relator Tammy Fountain challenges the

legality of her confinement for violating an agreed order in a suit affecting the

parent-child relationship.* Fountain stipulated that she violated the order, which

resulted in findings of contempt and an order committing her to a 60-day jail

* The underlying case is In the interest of S.F., a child, No. 2010-31997 in the 309th District Court of Harris County, Texas, the Honorable Sheri Dean, presiding. sentence. The commitment order was suspended, conditioned upon Fountain’s

continuing compliance with court orders. Acting on a motion to revoke the

suspension of commitment, the trial court subsequently found that Fountain had

committed further violations of the court’s orders, and it ordered that she be taken

into custody in accordance with the prior contempt order.

Finding no abuse of discretion in the trial court’s revocation of its prior

suspension of commitment, we deny the petition.

Background

This is the second time Fountain has sought relief in this court from the

proceedings in a suit affecting her parental relationship with her adopted son. See

In re Fountain, No. 01-11-00198-CV, 2011 WL 1755550 (Tex. App.—Houston

[1st Dist.] May 2, 2011, orig. proceeding) (opinion on rehearing). After we denied

mandamus relief from the denial of a motion to dismiss the underlying suit,

Fountain agreed to the entry of an order which appointed her as sole managing

conservator and Kathy Katcher as a nonparent possessory conservator. Among

other things, the October 18, 2011 agreed order provided that within 30 days each

party was to “permit the other conservator to obtain health-care information

regarding the child” and authorize the disclosure of “protected health information

to the other conservator.” This order also required each party to notify the “other

party, the court, and the state case registry” of any change in the party’s contact

2 information, including current residence, phone number, and employer contact

information. Fountain and Katcher were also required to provide notification of

any intended change in this residency and contact information “on or before the

60th day before the intended change.” If a party did not know of the change in

time to provide the 60-day notice, then notice was required “on or before the fifth

day after the date that the party knows of the change.”

Several months after the entry of the October 18 agreed order, Katcher

moved to enforce that order for Fountain’s failure to comply. The trial court held

two hearings on May 3 and May 11, 2012. The parties stipulated, and the court

found, that Fountain violated the October 18 order by failing to execute releases

and thereby failing to permit Katcher to obtain health-care information regarding

the child, as required by the agreed order. In an order dated May 24, 2012,

Fountain was found to be in contempt and ordered to be committed to the Harris

County Jail for a period of 60 days as punishment. In the same order, the 60-day

jail sentence was suspended on the condition that she comply with the October 18

agreed order and with additional provisions contained in a new modification order

which, like the contempt order, was also dated May 24, 2012.

The May 24 modification order required, among other provisions, that

Fountain notify the child’s schools in writing that Katcher could have lunch with

the child at school, attend school activities, and “receive all school notices,

3 including all email notices normally sent to parents.” Fountain was required to

provide this notice to the child’s current school by May 15, a date which was four

days after the May 11 hearing but nine days before the May 24 order giving rise to

this new obligation was actually entered. Additionally, the modification order

obligated both parties to exchange a variety of information through an internet

application called “Our Family Wizard.” The parties were also required to

promptly update this data, within 36 hours of any change to any of the initially

exchanged data or to other specified scheduling matters, including but not limited

to the inability to exercise a period of possession or knowledge that the child

would not be attending a previously scheduled extracurricular activity.

Approximately one month later, Katcher moved to revoke the suspension of

Fountain’s commitment. Katcher alleged multiple violations of the prior orders,

three of which are relevant in this proceeding. First, she alleged that Fountain had

failed to give her sufficient notice of changes to the child’s residence when

Fountain notified her of a change of residence to Galveston County effective three

days later. Second, she alleged that Fountain had not timely notified the child’s

school that Katcher could visit the child for lunch, pick him up from class, and

attend school activities. Third, she argued that Fountain had violated the provision

of the modification order requiring communication within 36 hours through Our

Family Wizard about changes to the scheduled possessory period with the child.

4 After a hearing, the trial court revoked the suspension of Fountain’s

commitment in an order dated July 31, 2012. The court found that Fountain had

violated the prior orders three times. First, she had failed to “provide the required

notice” that she was moving on June 22 when she mailed notice of the move to

Katcher on “June 18, 2012.” Second, Fountain had failed to inform the school by

May 15 that Katcher had permission to access the child there. Third, Fountain had

failed to post information to Our Family Wizard as required. The district court

ordered that Fountain be committed in accordance with “the orders attached hereto

as Exhibits A, B, and C.” A copy of the May 24 commitment order was attached

as Exhibit A. On its second page, that order provided that “punishment for the

violation set out above is assessed at confinement in the Harris County Jail for a

period of sixty (60) days.” Fountain was taken into the custody of the jail on the

same day.

Fountain filed an original petition for writ of habeas corpus seeking relief in

this court, raising five issues. We ordered her released on bond pending our

determination of her petition. See TEX. R. APP. P. 52.10.

Analysis

A final order for possession of or access to a child may be enforced by

means of a motion for enforcement as provided by chapter 157 of the Family Code.

TEX. FAM. CODE § 157.001(a) (West 2008). Such an order may be enforced by

5 contempt, as also provided by chapter 157. Id. § 157.001(b). Chapter 157

specifies particular information that a motion for enforcement must provide “in

ordinary and concise language,” including identification of “the provision of the

order allegedly violated and sought to be enforced,” “the manner of the

respondent’s alleged noncompliance,” and “the relief requested by the movant.”

Id. § 157.002(a). A motion to enforce the terms and conditions of access to a child

must also include “the date, place, and, if applicable, the time of each occasion of

the respondent’s failure to comply with the order.” Id. § 157.002(c). Chapter 157

sets forth detailed procedures for hearings on enforcement motions.1

One potential outcome of a hearing on an enforcement motion requesting

contempt findings and sanctions is that the trial court “may place the respondent on

community supervision and suspend commitment if the court finds that the

respondent is in contempt of court for failure or refusal to obey an order rendered

as provided in this title.” Id. § 157.165. Community supervision under

1 See TEX. FAM. CODE ANN. §§ 157.061–.168. For example, upon the filing of a motion for enforcement requesting contempt, the trial court shall set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Id. § 157.061(a). The respondent is entitled to receive personal service of a copy of the motion and notice not later than the 10th day before the date of the hearing. Id. § 157.062(c). If a respondent who has been personally served with notice nevertheless fails to appear at a hearing, the court may not hold the respondent in contempt but may, on proper proof, grant a default judgment for the relief sought and issue a capias for the arrest of the respondent. Id. § 157.066.

6 chapter 157 is subject to different procedures from those applicable to enforcement

motions. The procedures governing community supervision are detailed in a

distinct subchapter. Under that subchapter, a “party affected by the order may file

a verified motion alleging specifically that certain conduct of the respondent

constitutes a violation of the terms and conditions of community supervision.” Id.

§ 157.214. Unlike the procedures generally applicable to a motion to enforce, a

prima facie showing of a violation of a condition of community supervision can

result in the immediate arrest of the respondent, id. § 157.215, followed by a

hearing on the motion to revoke community supervision within three days. 2 “After

the hearing, the court may continue, modify, or revoke the community

supervision.” Id. § 157.216(c).

In her petition, Fountain alleges numerous deficiencies and errors in the

motion and order that revoked the suspension of her commitment to jail. A

commitment order is subject to collateral attack in a habeas corpus proceeding. In

re Henry, 154 S.W.3d 594, 596 (Tex. 2005); see TEX. GOV’T CODE ANN.

2 Compare id. § 157.216(a) (“The court shall hold a hearing [on motion to revoke community supervision] without a jury not later than the third working day after the date the respondent is arrested under Section 157.215.”) with id. § 157.062(c) (“Notice of hearing on a motion for enforcement of an existing order providing for . . . possession of or access to a child shall be given to the respondent by personal service of a copy of the motion and notice not later than the 10th day before the date of the hearing.”).

7 § 22.221(d) (West 2004) (granting the appellate courts the power to issue writs of

habeas corpus). The purpose of the habeas corpus proceeding is not to determine

the guilt or innocence of the relator, but only to determine whether she has been

unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). We

initially presume that the contempt order is valid. In re Turner, 177 S.W.3d 284,

288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). But the writ will

issue if the trial court’s contempt order is beyond the court’s power or the court did

not afford the relator due process of law. Id. (citing Henry, 154 S.W.3d at 596).

The relator bears the burden of showing that she is entitled to relief. Id. In

reviewing the record, we do not weigh the proof; rather, we determine only if the

judgment is void because, for example, the relator has been confined without a

proper hearing or with no evidence of contempt to support her confinement. Ex

parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995); see TEX. GOV’T CODE ANN.

§ 22.221(d) (providing that courts of appeals exercise jurisdiction over habeas

corpus petitions “[c]oncurrently with the supreme court”).

I. Punishment

In her first issue, Fountain argues that the July 31 revocation order was void

because it did not clearly state the punishment imposed. She notes that the order,

including its three attachments, is 37 pages long, but that the text of the order itself

does not specify the length of the jail sentence or identify which attachment

8 contains the sentence. Fountain does acknowledge, however, that the May 24

contempt order was attached to the July 31 revocation order and specified a 60-day

jail sentence.

Fountain relies upon Family Code section 157.166(a)(4) for the proposition

that “an enforcement order must include ‘the relief granted by the court.’” This

provision is contained within subchapter D of chapter 157 relating generally to

enforcement hearings and orders in suits affecting the parent-child relationship.

See TEX. FAM. CODE § 157.001(a) (“A motion for enforcement as provided in this

chapter may be filed to enforce a final order for conservatorship, child support,

possession of or access to a child, or other provisions of a final order.”).

Section 157.166 does specify certain contents which must be included in an

enforcement order, including “the relief granted by the court.” See id.

§ 157.166(a)(4). But the provision is not part of subchapter E, which relates

specifically to community supervision, including proceedings to revoke

community supervision. See id. §§ 157.211–.217.

Although Fountain’s legal challenges are directed at the July 31 revocation

order, the actual enforcement order at issue in this proceeding is the May 24

contempt order. Fountain does not complain that this order failed to identify “the

relief granted by the court”—indeed, she concedes that it did. Her complaint,

instead, is that the relief was not expressly stated in the July 31 revocation order,

9 and that referencing the May 24 contempt order and attaching it to the July 31

revocation order was the equivalent of not including it at all. As characterized by

Fountain, “[h]iding this requirement [of a statement of ‘the relief granted by the

court’] is the equivalent of not including it.”

We disagree with the suggestion that the statement of the relief granted by

the court was “hidden” in any relevant sense. Fountain relies on In re Levingston,

996 S.W.2d 936, 938 (Tex. App.—Houston [14th Dist.] 1999, no pet.), and Ex

parte Waldrep, 783 S.W.2d 332, 333 (Tex. App.—Houston [14th Dist.] 1990, orig.

proceeding), for the proposition that “the purpose of the commitment order is to

notify the offender of how she has violated its provisions, to notify the sheriff so

that he can carry out enforcement, and to provide sufficient information for an

adequate review.” We do not question this principle. See, e.g., In re Luebe,

No. 01-09-00908-CV, 2010 WL 1546961 (Tex. App.—Houston [1st Dist.] Apr. 2,

2010, no pet.); Turner, 177 S.W.3d at 289. However, Fountain provides no

argument about how she lacked adequate notice of the sentence, what information

is missing for law enforcement purposes, or how our review has been impaired.

To the contrary, the record is clear that Fountain was sentenced to a 60-day jail

sentence in the May 24 contempt order, that the sentence was suspended on the

condition of her future compliance with the court’s orders, and that on July 31 the

10 trial court found that such orders had been violated and accordingly revoked the

suspension of the previously entered 60-day sentence.

The May 24 contempt order provided on its second page that “punishment

for the violation set out above is assessed at confinement in the Harris County Jail

for a period of sixty (60) days.” This clearly stated the punishment imposed,

contrary to Fountain’s assertion that it was hidden. “There is no particular form

required of either the order of contempt or the commitment order, provided that

their essential elements appear in a written document.” Ex parte Snow, 677

S.W.2d 147, 149 (Tex. App.—Houston [1st Dist.] 1984, no writ). We overrule

Fountain’s first issue.

II. Grounds for revocation of suspension

In her four remaining issues, Fountain argues that Katcher’s motion for

revocation and the trial court’s July 31 revocation order fail to satisfy the

procedural standards of Family Code chapter 157 in several respects. In her

second issue, she argues that the judgment of contempt cannot be enforced based

on violations of the May 24 modification order because the conditions of

suspension in the May 24 contempt order mistakenly reference the “Modification

Order of May 25, 2012.” In her third issue, she argues that although Katcher’s

motion to revoke alleged that she violated the October 18 agreed order by mailing

a notice on June 19, 2012, the trial court found that the violation was committed on

11 June 18, 2012, and therefore is “not supported by the pleadings.” The fourth issue

relates to the requirement in the May 24 contempt order that certain information be

provided by May 15—before that order was actually entered. And the fifth issue

complains of the specificity of the motion to revoke and the revocation order with

respect to the allegation and finding that Fountain interfered with Katcher’s

participation in school lunches by failing to timely share information about the

child’s schedule on Our Family Wizard in violation of the court’s orders.

One misconception underlies each of these issues in common. Fountain

wrongly assumes that Katcher’s motion to revoke and the trial court’s revocation

order must satisfy all of the procedural safeguards for an enforcement motion

under subchapter D of chapter 157, as if a separate allegation, finding, and

sentence for contempt of court were at issue. In other cases, these safeguards in

fact have been applied under circumstances when a party has been found in

contempt and sentenced, the commitment has been suspended subject to

compliance with specified conditions, and then in further proceedings to revoke the

suspension of commitment, a trial court made additional findings of contempt and

imposed a different punishment. In such circumstances, with new allegations of

contempt and enhanced sanctions, the motion to revoke does not merely invoke a

previously rendered judgment of contempt, but the new motion instead functions

as a separate enforcement motion for purposes of chapter 157. See, e.g., In re

12 Broussard, 112 S.W.3d 827, 831 (Tex. App.—Houston [14th Dist.] 2003, no pet.);

Ex parte Bagwell, 754 S.W.2d 490, 493 (Tex. App.—Houston [14th Dist.] 1988,

no writ); Ex parte Durham, 708 S.W.2d 536, 537 (Tex. App.—Dallas 1986, no

writ).

In this case, however, although Katcher alleged and the trial court found that

Fountain had violated the conditions of the suspension of her commitment, Katcher

did not request and the trial court did not enter additional findings of contempt.

Instead, as anticipated by chapter 157 and particularly subchapter E pertaining to

community supervision, the trial court merely enforced the provisions of its own

suspended commitment order, and it revoked the suspension, resulting in the

imposition of the original sentence imposed for the original, admitted episodes of

contempt.

Fountain provides no argument or authority for us to apply subchapter D of

chapter 157 and its detailed procedures applicable to an original enforcement

hearing to the separate circumstance of a proceeding merely to determine whether

to revoke the suspension of a valid prior order of commitment for contempt, and

we decline to do so. That approach would render ineffective the common practice

of suspending contempt judgments contingent upon future compliance with court

order. There is no reason to deprive trial courts of such flexibility in the

enforcement of their orders. A heightened procedural standard is justified for

13 contempt proceedings in the first instance, especially when incarceration of the

respondent is a potential result. But once there has been a judgment of contempt,

there is no requirement that the same heightened measure of process be provided in

order to adjudicate an allegation that the conditions of a suspended judgment have

been violated. Instead, like the analogous circumstance of an appeal from the

revocation of probation in a criminal proceeding, we review the trial court’s ruling

for an abuse of discretion. See, e.g., Bryant v. State, No. PD-0049-12, 2012 WL

5232147 (Tex. Crim. App. Oct. 24, 2012); see also In re Butler, 45 S.W.3d 268,

272 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“Proceedings in contempt

cases should conform as nearly as practicable to those in criminal cases.”). In the

case of an order revoking community supervision, proof of any one violation of the

conditions of suspension is sufficient to support the revocation order. See In re

Bourg, No. 01-07-00623-CV, 2007 WL 2446844 (Tex. App.—Houston [1st Dist.]

Aug. 27, 2007, no pet.) (holding proof of any one violation of an order revoking

suspension of commitment for contempt is sufficient to support revocation); In re

B.C.C., 187 S.W.3d 721, 724 (Tex. App.—Tyler 2006, no pet.).

Accordingly, we must deny relief if the revocation was justified on any

basis, and in this case it was. After Fountain received notice of Katcher’s motion

to revoke and a hearing was held, the trial court found three violations of

Fountain’s conditions of suspension of commitment. One of the violations related

14 to Fountain’s failure to comply with the trial court’s order with respect to timely

informing Katcher of a planned change of residential address. The October 18

agreed order provided, in relevant part:

Required Notices EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY’S CURRENT RESIDENCE ADDRESS . . . . THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT PARTY KNOWS OF THE CHANGE.

THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.

FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY’S FEES AND COURT COSTS.

15 Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested. . . .

In the July 31 revocation order, the trial court specifically found that

Fountain had violated this provision by failing to provide Katcher the “required

notice” of her plan to move to Galveston County. This finding was supported by

circumstantial evidence presented at the evidentiary hearing on the motion to

revoke. On June 18, 2012, Fountain sent a letter to Katcher, informing her of a

change of residential address. Fountain would have violated the agreed order’s

“Required Notices” provision if she knew of “an intended change” of residential

address before June 13, or more than five days before she actually provided notice

of the move to Katcher.

Fountain testified that she knew a move was possible as of June 14, but she

did not know until June 16 that the move would actually occur. Other evidence at

the hearing cast serious doubts on that testimony. The child spent the weekend of

June 15–17 with Katcher. During that weekend, the child told Katcher that he had

a “condo in Galveston” with his own bathroom, that it had a pool where he had

been swimming, and that he been to his new school. Fountain admitted that the

child had learned all of this information prior to June 15. Additionally, on June 16

Fountain leased her Houston home to an acquaintance. Nevertheless, Fountain

insisted that she did not know about the intended move until June 16.

16 The burden of proof to justify the revocation of a suspension of commitment

is a preponderance of the evidence, meaning that greater weight of the credible

evidence which would create a reasonable belief that the respondent violated a

condition of the suspension of commitment. Cf. Rickels v. State, 202 S.W.3d 759,

763–64 (Tex. Crim. App. 2006) (describing burden of proof to revoke probation).

We review the evidence in the light most favorable to the trial court’s judgment.

See Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d). “The trial court is the exclusive judge of the credibility of the witnesses

and must determine whether the allegations in the motion to revoke are sufficiently

demonstrated.” Id.

As the exclusive judge of the credibility of the witnesses, the trial court

obviously did not believe Fountain’s testimony that she did not know of an

intended change of residential address prior to June 14. The circumstantial

evidence relating to the move, including the child’s knowledge of details about the

new residence and the arrangement of a tenant to lease Fountain’s Houston home,

supported a reasonable belief that Fountain violated the agreed order’s requirement

that she notify Katcher on or before the fifth day after she knew of the intended

change.

Fountain also contends that Katcher’s motion to revoke failed to provide her

sufficient notification of this alleged violation due to a variance in the date of her

17 written notice as specified in the motion (June 19) and the date identified in the

revocation order (June 18). This defect does not invalidate the revocation order.

“It is well settled that allegations in a revocation motion need not be made with the

same particularity of an indictment although such allegations must be specific

enough to give the accused notice of alleged violation of law contrary to conditions

of probation.” Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977)

(quoted with approval in In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008) (per curiam)).

The motion to revoke adequately notified Fountain of the essential allegations

against her, relating to the timing of her written notice of the move to Galveston.

Her letter was dated June 16 but was actually mailed on June 18. The motion to

revoke’s reference to the notice being mailed on June 19 did not deprive Fountain

of notice of the essential allegation about her violation of the requirement of

written notice.

Accordingly, we overrule Fountain’s third issue challenging the adequacy of

the motion to revoke to provide her notice of the allegation that she violated the

agreed order by providing untimely notice of an intended move. Because at least

one of the grounds for revocation was supported by the evidence, we need not

address Fountain’s remaining issues challenging the other two violations found by

the trial court.

18 Conclusion

We conclude that Fountain has not shown that she was illegally restrained

by the trial court’s order revoking suspension of commitment and committing her

to county jail. We therefore deny Fountain’s request for habeas corpus relief.

Michael Massengale Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.