in Re Joseph Thomas

Opinion issued March 18, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00440-CV IN RE JOSEPH THOMAS, Relator Original Proceeding on Petition for Writ of Habeas Corpus MEMORANDUM OPINION Relator, Joseph Thomas, requests habeas corpus relief. He does not assert that he is physically confined, but rather, that the trial court has restrained his liberty pursuant to a commitment order the court signed on July 19, 2005, (1) a contempt order on July 26, 2005, and an order suspending enforcement of his commitment on August 3, 2005. Thomas requests that we declare these orders void and permanently discharge him from any further legal restraint. The real party in interest, Thomas's former spouse, Nicole Lovejoy, did not respond to Thomas's petition. We deny habeas corpus relief. Factual Background In October 2003, the trial court issued an amended final divorce decree, appointing Thomas and Nicole as managing conservators of their child, C.T. In the decree, Thomas determines C.T.'s primary residence. The decree also provides that Nicole has weekly possession of C.T. on Wednesdays from 6:00 p.m. to 8:00 p.m. during the school year. The original decree requires that either parent surrender the child to the other parent at the beginning of any possession period: 1. Surrender of Child by JOSEPH ANTHONY THOMAS. IT IS ORDERED that JOSEPH ANTHONY THOMAS shall surrender the child to NICOLE D. LOVEJOY-THOMAS at the beginning of each period of possession of JOSEPH ANTHONY THOMAS and said surrender shall take place at the primary residence of the child, unless it is specified herein that NICOLE D. LOVEJOY-THOMAS has the right to pick up the child at some other place of destination; This paragraph in the decree contains a scrivener's error. It states that Thomas must surrender the child at the beginning of Thomas's period of possession. It should read that Thomas surrender possession of the child to Nicole at the beginning of Nicole's period of possession. In an order dated September 30, 2004, entitled "Clarification Order," the trial court clarified this language, ordering that Thomas surrender the child at the beginning of Nicole's period of possession. In the clarification order, the trial court also provides that all provisions of the decree "not clarified in this order shall remain in full force and effect." In June 2005, Nicole moved for enforcement of the decree by contempt, charging that, in 32 instances, Thomas violated either the decree or the clarification order. In her motion for enforcement, Nicole includes the possession and access provisions of the decree. Nicole also recites the access and possession clarification language from the clarification order. Nicole requests that the trial court sentence Thomas to a period of confinement for each of the 32 alleged violations. The motion for enforcement demonstrates that the parties have been before the trial court on similar matters in the past, as some of the alleged violations include a failure to surrender the child for court-ordered "make-up time." On July 19, 2005, the trial court heard Nicole's enforcement motion, and signed a commitment order, in which it found Thomas guilty of contempt because "he has failed and refused to surrender the child in violation of this Court's Orders . . . as per violations #1 through #32 in Movant's Motion for Enforcement." The trial court sentenced Thomas to 179 days of confinement for each count, to run concurrently. The trial court also awarded Nicole's attorney a judgment for $2,000 for attorney's fees. Pursuant to the July 19, 2005 commitment order, the Harris County Sheriff committed Thomas into its custody. The trial court did not sign a contempt order until one week later, on July 26. The contempt order sets forth the provisions of the decree and the clarification orders for which Nicole sought enforcement, the 32 ways in which the trial court found Thomas had violated those orders, the trial court's finding that Thomas was in contempt for each of the 32 violations, and the 179-day sentence for each violation, to run concurrently. The trial court included the award against Thomas for $2,000 attorney's fees, expenses, and costs. The same day, the trial court held a hearing it referred to as a "jail review." After that hearing, on August 3, 2005, the trial court ordered Thomas's commitment suspended, and placed him on community supervision for 60 months with the following terms and conditions: (1) payment of $139 in costs to Nicole's attorney, (2) payment of $2,000 attorney's fees to Nicole's attorney in monthly installments of $300 per month starting September 1, 2005, and continuing each month until paid in full; (3) a report to the community supervision officer (CSO) in the Harris County Domestic Relations Office on July 26, 2005; (4) permission to the CSO to visit Thomas in his home or elsewhere as set out in the conditions of the Harris County Domestic Relations Office; (5) counseling and parenting classes as directed by the Harris County Domestic Relations Office; (6) payment of a community supervision fee of $25 per month, commencing September 1, 2005, and on the first of each month thereafter during the duration of his community supervision; (7) counseling as directed by the CSO and in other matters that may have contributed to the violation of the orders of the trial court, as instructed by the CSO, regardless whether said counseling has been expressly ordered by the trial court; and (8) allowance to Nicole of "additional periods of possession for the denial of court ordered possession or access as scheduled by the CSO and mandated by Amicus Attorney Ramos." In seeking relief from the trial court's orders,Thomas presents six issues challenging the validity of his restraint. Standard of Review A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). We issue a writ of habeas corpus if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 166 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). The relator bears the burden to show that he is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09). Analysis A. Validity of the August 3, 2005 Order Thomas first contends that the August 3 order suspending his commitment to jail is invalid because it does not contain the provisions of the trial court's prior order sought to be enforced, his contemptuous acts or omissions, the manner in which his acts constitute non-compliance with the order sought to be enforced, the dates on which he is alleged to have perpetrated these contemptuous acts or omissions, and the complete relief granted by the trial court. Thomas treats the suspension of commitment order as an order of contempt, or, as the Legislature refers to it in the Texas Family Code, an"enforcement order," but the two are different. See Tex. Fam. Code Ann. § 157.166(a),(b) (Vernon 2002). An enforcement order must contain the information that Thomas complains is absent. See id. But, a suspension of commitment order or, as the Legislature refers to it, a "probation of contempt order" presupposes a finding of contempt. See Tex. Fam. Code Ann. § 157.165 (Vernon 2002). Thus, a party seeking habeas relief based upon due process complaints, such as those made here by Thomas, must direct them at the enforcement order that confines the party, not at the order suspending such confinement. Thomas further asserts that the conditions in the suspension of commitment order are ambiguous. Specifically, Thomas complains that the order requires him to obtain counseling, but not any particular type; that the order neglects to state the place he is to pay the community supervision fee; and it is unspecific as to additional periods of possession to allow Nicole. Thomas argues that the trial court could further restrain him under these or other ambiguous terms or conditions in the probation order. The operative word is "could." Thomas does not complain in this habeas proceeding that he is physically confined due to a breach of the conditions of his probation, but instead complains of the imposition of these restrictions in the first instance. Thomas does not indicate that he has sought relief from the trial court to clarify any of the conditions that he contends are vague or ambiguous, or allege that the trial court has found him to have violated any one of them. We decline to address Thomas's complaints as to the suspension of commitment order because they are unripe for consideration. See, e.g., In re Bourg, No. 01-07-00623-CV, 2007 Tex. App. LEXIS 6977, at *10 (Tex. App.--Houston [1st Dist.] Aug. 27, 2007, orig. proceeding) (mem. op.) (on basis of unripeness this court declined to address ground for habeas corpus relief relative to order when relator was not currently confined pursuant to that order); In re Flores, 01-06-00733-CV, 2006 Tex. App. LEXIS 9706, at **2-3 (Tex. App.--Houston [1st Dist.], orig. proceeding) (mem. op.) (this court declined to address relator's complaint that child support order was ambiguous and void when trial court had not adjudicated relator to be in contempt of challenged order). Finally, Thomas asserts that the August 3 order contains inconsistent findings. Thomas asserts that the commitment order contains a money judgment of $2,000 in attorney's fees against Thomas, whereas the August 3 suspension of commitment order makes Thomas's payment of the $2,000 attorney's fees plus the payment of an additional $139.00 in costs a condition of the suspension of commitment. We hold that the trial court was within its discretion to include the payment of court costs as a condition of suspending the enforcement of its commitment order. See, Ex parte Lee, 568 S.W.2d 689, 690 (Tex. Civ. App.--Houston [1st Dist.] 1978, orig. proceeding) (in enforcement order, trial court ordered Lee's confinement until he had paid attorney's fees, plus costs, but then suspended the enforcement order, provided Lee pay attorney's fees, plus costs by a date certain). We overrule issue one and the part of issue four challenging the August 3, 2005 Suspension of Commitment Order. B. July 19, 2005 Commitment Order In issues two and three, Thomas complains that the July 19, 2005 commitment order is void because the trial court signed it before the July 26, 2005 enforcement order, and it is not sufficiently specific. Because Thomas is no longer confined pursuant to the July 19, 2005 commitment order, we dismiss issues two and three as moot. See, e.g., Ex parte McKenzie, 909 S.W.2d 502, 503 (Tex. 1995) (when McKenzie was no longer confined under order he challenged, supreme court ruled challenge of order to be moot). C. July 26, 2005 Enforcement Order In issue four, Thomas asserts that the July 26, 2005 enforcement order is not sufficiently specific because it does not enumerate which of the provisions of the October 30, 2003 divorce decree and the September 30, 2004 clarification order correspond to the 32 violations the trial court found, and that the enforcement order is not specific as to the manner of Thomas's non-compliance. Because each of these 32 violations carries its own 179-day sentence, if we determine the trial court, through its order, sufficiently put Thomas on notice of one of the provisions of the order to which one of the stated violations corresponds, the enforcement order is enforceable against Thomas for 179 days of confinement. See, Turner, 177 S.W.3d 284 at 288 (when in an enforcement order trial court finds multiple instances of contempt and separately assesses a separate punishment for each instance, if any sentence is valid, it will be enforced). An enforcement order must include in ordinary and concise language the provisions of the order for which enforcement was requested. Tex. Fam. Code Ann. § 157.166(a)(1) (Vernon 2002). 'The purpose of an enforcement order is to notify the contemner of how he has violated the provisions for which enforcement is sought and . . . to provide sufficient information for an adequate review.' Ex parte Conoly, 732 S.W.2d 695, 697 (Tex. App.--Dallas 1987, orig. proceeding). A contempt order is insufficient if its interpretation requires inferences or conclusions about which reasonable persons might differ. In re Houston, 92 S.W.3d 870, 877 (Tex. App.--Houston [14th Dist.] 2002, orig. proceeding). Turner, 177 S.W.3d 284 at 289. Here, in the enforcement order, the trial court stated violation number 18 as follows: On February 16, 2005, [Nicole] was exercising her Wednesday evening visitation from 6:00 p.m. to 8:00 p.m., during the school year, [sic] as [Nicole] drove up to the house, Joseph Anthony Thomas said [Nicole] no longer had visitation with Christopher (2) and he was not sending him. Joseph Anthony Thomas violated the Court's order by not surrendering the child to [Nicole] as ordered. On pages 1-2 of the July 26, 2005 enforcement order, the trial court states: Findings The Court finds that [Thomas] is guilty of separate violations of the order . . . signed on October 30, 2003 that appears in the minutes of this Court, and states in relevant part as follows: . . . IT IS ORDERED that [Nicole] shall have possession of and access to the . . . child as follows: . . . 3. WEDNESDAYS. On Wednesdays of each week during the regular school term beginning at 6:00 o'clock p.m. and ending at 8:00 o'clock p.m. In the enforcement order, the trial court does not directly tie the Wednesday possession provision contained in its October 30, 2003 decree to its enforcement order. Nevertheless, the enforcement order provides Thomas with adequate notice inasmuch as the Wednesday possession provision appears both in the October 30, 2003 decree and in the motion for enforcement. Nicole notified Thomas of the specific provision by quoting it, verbatim from the decree. Thus, interpreting the trial court's finding does not require an inference or conclusion about which reasonable persons might differ. Turner, 177 S.W.3d 289 at 290. The decree's Wednesday possession order is the only prior court order implicated by violation 18. See id. (holding enforcement order that only referred generally to prior order violated gave sufficient notice of provisions of decree that trial court had found violated when violations as stated implicated the only decree provisions from which the violations could have arisen). Additionally, the record does not reveal any actual difficulty or confusion on Thomas's part in understanding which provisions of the trial court's prior orders he had violated. Id. We further conclude that the trial court's enforcement order is sufficient to provide information for habeas corpus review of Thomas's grounds for relief. See id. We overrule issue four. D. The Decree and Clarification Orders and Enforcement In issue five, Thomas asserts that the decree and the clarification order are ambiguous. Concerning the decree and the clarification order, Thomas contrasts the "surrender language" contained in the "General Terms and Conditions" portions of the two orders. The decree provides the following: 1. Surrender of Child by JOSEPH ANTHONY THOMAS. IT IS ORDERED that JOSEPH ANTHONY THOMAS shall surrender the child to NICOLE D. LOVEJOY-THOMAS at the beginning of each period of possession of JOSEPH ANTHONY THOMAS and said surrender shall take place at the primary residence of the child, unless it is specified herein that NICOLE D. LOVEJOY-THOMAS has the right to pick up the child at some other place of destination; (emphasis added) whereas the clarification order provides the following: 1. Surrender of Child by JOSEPH ANTHONY THOMAS. IT IS ORDERED that JOSEPH ANTHONY THOMAS shall surrender the child to NICOLE D. LOVEJOY-THOMAS at the beginning of each period of possession of NICOLE D. LOVEJOY-THOMAS and said surrender shall take place at the primary residence of the child, unless it is specified herein that NICOLE D. LOVEJOY-THOMAS has the right to pick up the child at some other place of destination . . . . (emphasis added). Thomas acknowledges that the version of the surrender language in the decree is a mistake, but asserts that because "no specific finding or specific order was ever entered that voided the surrender language of the [decree] . . . the surrender language of each are in effect . . . . [and] the surrender language is ambiguous and not specific enough for contempt." We disagree. The Family Code provides that on the motion of a party or on its own motion, a court may clarify an order by rendering an order that is specific enough to be enforced by contempt if it finds that an order rendered in a Title 5 (involving the parent-child relationship) proceeding is not specific enough to be enforced by contempt. Tex. Fam. Code Ann. § 157.421(a), (b) (Vernon 2002). Here, the trial court found that the surrender order contained in October 30, 2003 decree was not specific enough to be enforceable by contempt. In the clarification order, the trial court "clarified" the decree's surrender order by stating that Thomas should surrender the child to Nicole at the beginning of each of Nicole's periods of possession. "Clarify" means "to free of confusion" or "to make understandable." Merriam Webster's Collegiat Dictionary 228 (11th ed. 2003). When a clarification order "clarifies" an order, the newly stated order replaces the prior confusing order. On page five of the clarification order, the trial court stated, "IT IS FURTHER ORDERED that all provisions of the [decree] not clarified in this order shall remain in full force and effect." The surrender order, as restated in the clarification order, is in effect and is not ambiguous. We overrule issue five. In issue six, Thomas asserts that the motion for enforcement lacked specificity as to which surrender order Nicole complains. When Nicole asserted that Thomas "refused to surrender" their child, she referred to the surrender order as clarified in the clarification order, as that order was then in effect. Thomas therefore had adequate notice of the surrender violation alleged against him. We overrule issue six. Conclusion We deny Thomas's request for habeas corpus relief. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. 1. Thomas elaborates that the restraint on his liberty includes a monthly report to a Community Supervision Officer (CSO), access to the CSO to visit him at Thomas's home or elsewhere, and a monthly community supervision fee. 2. Such a statement could not have been based on the duration of the possession and access provisions of the decree expiring as it provides that said orders apply until Christopher becomes 18 and the decree states his date of birth as October 1, 1990.