Jonna G. Peltier and James Peltier v. Grant Garrison, Vogel Reanon, Nicole Hopson, Debbie Smith and Patrick Smith

ACCEPTED 03-16-00855-CV 14440815 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/23/2016 1:14:53 PM JEFFREY D. KYLE CLERK

FILED IN 3rd COURT OF APPEALS No. 03-16-00855-CV AUSTIN, TEXAS 12/23/2016 1:14:53 PM [N THE COURT OF APPEALS JEFFREY D. KYLE Clerk

3RD JUDICIAL DISTRICT

AUSTIN, TEXAS

In re Mark Peltier and Jonna Peltier, Appellants

APPELLANTS' MOTION FOR EMERGENCY STAY

JAMIE GRAHAM & ASSOCIATES, PLLC Jamie L. Graham State Bar No. 24027335 Audrey E. Manriquez State Bar No. 24029704 Tower Life Building 310 S. St. Mary's St., Suite 2500 San Antonio, Texas 78205 Tel: (2 IO) 3 08-6448 Fax: (210) 308-5669 E-mail: jamie@jamiegrahamlaw.com Attorneys for Appellants

Pelitionfhr Emergency Stay: Peltier Page 1 TO THE HONORABLE COURT OF APPEALS:

1. Appellants are Mark Peltier and Jonna Peltier. Real Party in interest is Jacek R. Bogle. Appellees are Patrick Smith and Debbie Smith.

2. An Order of Enforcement by Contempt and Suspension of Commitment (Possession or Access) against Appellants was entered on December 9, 2016. (See Exhibit "A"). It is from this order, which holds Appellants in criminal contempt, that Appellants are now appealing.

3. Appellants filed a Notice of Appeal of the Order of Enforcement by Contempt and Suspension of Commitment (Possession or Access) on December 14, 2016. (See attached Exhibit "B").

3. Appellees filed a Motion to Revoke Suspension of Commitment and

Order to Appear on December 15, 2016. (See Exhibit "C"). A hearing is set on said motion on December 30, 2016 at 9:00 a.m. in the 433 rd Judicial District Court of Comal County, Texas. Appellees seek to have Appellants pay criminal fines and placed in jail for alleged violations of the Order of Enforcement by Contempt and Suspension of Commitment regarding the possession and access of the child.

4. The underlying order is "insufficient to support a contempt conviction" because the record is void of any evidence to support same. In re R.E.D., 278 S.W.3d Petition.for Emergency Stay: Peltier Page2 850 (Tex. App.-Houston [1st Dist.] 2009). (See Exhibit "D"). The transcript of the trial court proceeding has been requested, and will show the following deficiencies:

a. At no time during the proceedings was the trial court presented with the order that Appellants allegedly violated. Because the order was not before the court, there was insufficient evidence presented of Appellants' obligations under that order, or whether such order was sufficiently clear and specific to support a criminal contempt finding.

b. Appellee Patrick Smith's testimony was the only evidence presented to support the contempt finding. Appellee's testimony does not support the trial court's finding that Appellant's violated the underlying order. Appellee Patrick Smith repeatedly testified he did not know or could not recall specific incidences of alleged violations, of which the trial court ultimately found Appellants guilty.

5. An emergency stay of enforcement of the order and of further

proceedings in the trial comt is urgently necessary because Appellees are seeking to enforce the en-oneous contempt order for payment of criminal fines and incarceration, which will result in a wrongful denial of Appellants' libe1ty.

6. Appellants attach a certificate of compliance certifying that counsel for Appellants notified counsel for Appellees by letter that a motion for emergency stay Petition Ji;r Emergency Stay: Pellier Page3 of the trial court proceedings would be filed. Tex. R. App. P. 52.1 O(a). (See Exhibit "E")

7. Appellants request this Court grant an emergency stay of all trial court matters and of the enforcement of the void Order of Enforcement until the court hears this motion.

8. The parties have not agreed to this Motion.

Argument and Authorities

9. The Court may grant temporary relief pending its determination of an original proceeding. Tex. R. App. P. 52.10.

10. This emergency stay is necessary to maintain the status quo of the pa1ties and preserve the Court's jurisdiction to consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.-San Antonio 1995, orig. proceeding).

11. Appellants attach a certification to this motion to establish the facts stated herein are true and correct. Tex. R. App. P. 102.

C. Prayer

12. For the reasons stated in this motion, Appellants ask the Comt for an emergency stay to maintain the status quo of the parties and preserve the Court's jurisdiction to consider the merits of Appellants' original proceeding. Petition for Emergency S1ay: Peltier Page4

Respectfully Submitted,

JAMIE GRAHAM & ASSOCIATES, PLLC Tower Life Building 310 S. St. Mary's St., Suite 2500 San Antonio, Texas 78205 Tel. (210) 308-6448 Fax (210) 308-5669

By: Jamie L. Graham State Bar No. 24027335 Audrey E. Manriquez State Bar No. 24029704 Tracy E. Ross State Bar No. 24037399 Sarah Anne Lishman State Bar No. 24086267 Attorney for Respondents jamie@jamiegrahamlaw.com irene@jamiegrahamlaw.com

Petition for E1nergency Stay: Peltier Page 5

Certificate of Conference

I certify that a reasonable effort was made to confer with counsel for Appellee in interest in regard to the relief requested herein.

Isl Jamie L. Graham

Certificate of Service

I certify that a true copy of this Motion for Emergency Stay was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows:

Via Facsimile: (830) 626-1414 James E. Bettersworth The Bettersworth Law Firm 110 W. Faust Street New Braunfels, Texas 78130

Isl Jamie L. Graham Petition.for Emergency Stay: Peltier Page6

Certificate of Compliance

Under Texas Rule of Appellate Procedure 52.1 O(a), I certify that on December 22, 2016, I notified attorney for Appellee by facsimile that a motion for stay would be filed.

Isl Jamie L. Graham

Certification

I hereby certify that I have reviewed the above Motion for Emergency Stay and have concluded that every factual statement in the said Motion is supported by competent evidence.

Isl Jamie L. Graham

SUBSCRlBED AND SWORN TO BEFORE ME on this the 23rd day of December, 2016, to ce1tify which witness my hand and seal of office.

Notary Public, State of Texas Petition.for Emergency Stay: Peltier Page 7

EXHIBIT A

NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA

CAUSE NO. C2013-1375D

IN THE INTEREST OF § IN THE DISTRICT COURT § J.R.B. § 433 JUDICIAL DISTRICT Cl § c:, vi A CHILD § COMAL COUNTY, TEXAS~ (i -··

I -1;:n -::.. o 71

ORDER OF ENFORCEMENT BY CONTEMPT AND SUSPENSION OF COMMITMENT (POSSESSION OR ACCESS) \ :,,:::: r-._. -0 On November 17, 2016 the Court heard Movants PATRICK SMITH and DEBRA SM TH's ~elion,:_:, ..,z w for Enforcement of Possession or Access. -<

Appearances

Movants, PATRICK SMITH and DEBRA SMITH, appeared in person and through attorney of record, JAMES S. BETIERSWORTH and announced ready for trial.

Respondents, JONNA G. PELTIER and JAMES PELTIER, appeared in person and through attorney of record, JAMIE GRAHAM, and announced ready for trial. Jurisdiction

The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction over the subject matter and the parties in this case. All persons entitled to citation were properly cited. Record

The record of testimony was duly reported by the court reporter for the County Court al Law Number 2. Gause No. G2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 1

A jury was waived, and all questions of fact and of law were submitted to the Court. Findings

The Court finds that Respondents JONNA G. PELTIER and JAMES PELTIER are guilty of separate violations of the order signed on August 20, 2015 in Cause No. C2013-1375D, styled "In the Interest of J.R.B., a Child," in the 433 rd Judicial District of COMAL County that states in relevant part as follows:

A. Possession Order

Movants PATRICK SMITH and DEBBIE SMITH shall have possession of the child as follows: .... November Forward: Starling in November and until further order of the cou,t, PATRICK SMITH and DEBBIE SMITH shall have possession of the child on the first and third weekends of the month beginning at 6:00 p.m. on Friday and continuing until 6:00 p.m. on the following Sunday. These possession periods shall take place at PATRICK SMITH and DEBBIE SMITH's residence unless otherwise agreed.

B. Skype Communication

IT IS ORDERED that PATRICK SMITH and/or DEBBIE SMITH shall be permitted to Skype with the child to supplement their periods of possession as follows:

a. JONNA G. PELTIER and/or JAMES PELTIER shall make the child available for Skyping on Monday and Thursday of each week between 6:00 p.m. and 8:00 p.m.

b. Telephone calls and other communications shall not be monitored by the other party unless either believes in good faith that a child is having a problem, in which case the party shall advise the other party that the call or other communication in being monitored.

C. Coparenling Web Site Program

IT IS ORDERED that the parties each shall, within ten days after this Order is signed by the Court, obtain at his or her sole expense a subscription to the Family Wizard program on the Internet Web Site at www.ourfamilywizard.com. IT IS FURTHER ORDERED that the parties each shall maintain that subscription in full

Cause No. C2013-13750; In the Interest of J.R.8., a Child; Order of Enforcement Page 2

force and effect for as long as any child is under the age of eighteen years and not otherwise emancipated.

IT IS ORDERED that the parlies shall each communicate through the Family Wizard program with regard to all communications regarding the children, except in the case of emergency or other urgent matter.

IT IS ORDERED that the parlies each shall timely post all significant information concerning the health, education, and welfare of the child's schedules and activities on the Family Wizard Internet Web site. However, IT IS ORDERED that neither parly shall have any obligation to post on that Web site any information to which the other parly already has access through other means, such as information available on the Websites of the child's schools.

IT JS FURTHER ORDERED that the parlies shall each timely post on the Family Wizard Internet Web site a copy of any e-mail received by the parly from the child's schools or any health-care provider of the child, in the event that e-mail was not also forwarded by the schools or health-care provider to the other parly.

For purposes of this section of this order, "timely" means on /earning of the event or activity, or if not immediately feasible under the circumstances, not later than twenty-four hours after learning of the event or activity.

By agreement, the parlies may communicate in any manner other than using the Family Wizard program, but other methods of communication used by the parlies shall be in addition to, and not in lieu of, using the Family Wizard program.

The Court further finds that Respondents JONNA PELTIER and JAMES PELTIER have failed to comply with and have each violated the provisions of the order as follows:

Violation 1.July 7, 2016- Respondents did not allow Movants to skype or talk to J.RB.

Violation 2.July 11, 2016- Respondents did not allow Movants to skype or talk to J.R.B.

Violation 3.July 14, 2016- Respondents did not allow Movants to skype or talk to J.R.B.

Violation 4.July 18, 2016- Respondents did not allow Movants to skype or talk to J.RB.

Violation 7.July 25, 2016- Respondents did not allow Movants to skype or talk to J.RB.

Violation 8.July 28, 2016 - Respondents did not allow Movants to skype or talk to J.RB.

Violation 9.August 1, 2016- Respondents did not allow Movants to skype or talk to J.RB. Cause No. C2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 3

Violation 10.August 4, 2016- Respondents did not allow Movants to skype or talk to J.R.B.

Violation 11.August 5, 2016 - JONNA PELTIER and JAMES PEL TIER denied possession to Movants.

Violation 12.August 8, 2016- Respondents did not allow Movants to skype or talk to J.R.B.

Violation 13.August 11, 2016-Respondents did not allow Movants to skype or talk to J.R.B.

Violation 14.August 15, 2016 - Respondents did not allow Movants to skype or talk to J.R.B.

Violation 15.August 18, 2016 - Respondents did not allow Movants to skype or talk to J.R.B ..

Violation 16.August 19, 2016 - JONNA PELTIER and JAMES PELTIER denied possession to Movants.

Violation 17.August 22, 2016 - Respondents did not allow Movants to skype or talk to J.R.B.

Violation 18.August 25, 2016 - Respondents did not allow Movants to skype or talk to J.R.B ..

Violation 19.August 29, 2016- Respondents did not allow Movants to skype or talk to J.R.B.

Violation 20.JONNA PELTIER and JAMES PELTIER failed to sign up for Family Wizard.

The Court specifically finds that Respondents JONNA PELTIER and JAMES PELTIER are in contempt for each separate violation enumerated above.

The Court further finds that on the day of this hearing Respondents had the ability to comply with the prior order of the Court.

The Court further finds that attorney's fees and costs of $6,800.00 should be assessed against Respondents JONNA PEL TIER and JAMES PELTIER. Relief Granted

IT IS ADJUDGED that Respondents JONNA PELTIER and JAMES PELTIER are in contempt for each separate violation enumerated above. Criminal Contempt

IT IS ORDERED that JONNA PEL TIER shall pay assessed a fine of two thousand dollars Cause No. C2013-1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 4 ($2,000.00) and confinement in the county jail of Comal County, Texas for a period of ninety (90) days for each violation enumerated above. IT IS THEREFORE ORDERED that Respondent JONNA PELTIER is committed to the county jail of Comal County, Texas for a period of ninety (90) days for each separate violation enumerated above. IT IS ORDERED that each period of confinement assessed in this order for JONNA PELTIER shall run and be satisfied concurrently, not to exceed a cumulative total of ninety (90) days.

IT IS ORDERED that JAMES PELTIER shall pay assessed a fine of two thousand dollars ($2,000.00) and confinement in the county jail of Comal County, Texas for a period of ninety (90) days for each violation enumerated above. IT IS THEREFORE ORDERED that Respondent JAMES PELTIER is committed to the county jail of Comal County, Texas for a period of ninety (90) days for each separate violation enumerated above. IT IS ORDERED that each period of confinement assessed in this order for JAMES PELTIER shall run and be satisfied concurrently, not to exceed a cumulative total of ninety (90) days. Additional Periods of Possession IT IS FURTHER ORDERED that Movants PATRICK SMITH and DEBRA SMITH shall have four (4) 4 additional days of possession to compensate for the periods of possession denied to be completed as follows: 1~/1ti}t<e..h.1.(1/11J '/23/11 &..nd ;J../t..,/;7 •

. Pick up and drop off will be as previously ordered. Suspension of Commitment

IT IS FURTHER ORDERED that commitment is suspended and that the Respondents be placed on community supervision for a period of ten years on the following terms and conditions:

1. IT IS ORDERED that Respondents JONNA PELTIER and JAMES PELTIER, within thirty (30) days of this order, each pay a fine of $2,000.00 as hereinabove ordered. This fine shall be paid lo the Cause No. C2013,1375D; In the Interest of J.R.B,, a Child; Order of Enforcement Page 5 District Clerk of Comal County, Texas.

2. IT IS ORDERED that Respondents JONNA PELTIER and 'JAMES PELTIER, within thirty (30) days of this order, pay $6,800.00 to Movants as reasonable and necessary attorney's fees. This payment shall be made directly to JAMES S. BETTERSWORTH via cash, cashier's check, or money order AT 110 West Faust Street, New Braunfels, Texas 78130.

3. IT IS ORDERED that Respondents JONNA PELTIER and JAMES PELTIER comply with all prior orders of the Court. Attorney's Fees

IT IS ORDERED that judgment is awarded to JAMES S. BETIERSWORTH in the amount of six thousand eight hundred dollars ($6,800.00) for reasonable attorney's fees, expenses, and costs, with interest at 5 percent per year compounded annually from the date the judgment is signed until paid. The judgment, for which let execution issue, is awarded against JONNA G. PEL TIER and JAMES PELTIER, Respondents, and Respondents are ORDERED to pay those fees, expenses, costs, and interest, by cash, cashier's check, or money order, directly to JAMES S. BETTERSWORTH at 110 West Faust Street, New Braunfels, Texas 78130 on or before 5:00 p.m. on December 27, 2016. JAMES S. BETIERSWORTH may enforce this judgment for fees, expenses, and costs in the attorney's own name by any means available for the enforcement of a judgment for debt. The Court finds that enforcement of the order is necessary to ensure the child's physical or emotional health or welfare. IT IS THEREFORE ORDERED that the attorney's fees and costs awarded herein may be enforced by any means available for the enforcement of child support, including contempt but not including income withholding. Any amounts paid under paragraph 2 above shall be credited against this judgment. Relief Not Granted

All relief requested and not expressly granted is denied. Gause No. C2013·1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 6 SIGNED ON ~ l.Jl..c{',. h ~- J...o/ \( APPROVED AS TO FORM ONLY:

The Bettersworth Law Firm 110 W. Faust Street New Braunfels, Texas 8-1-3 Tel: 830/606-0 Fax:83 -1414

By: ES S. BETTERSWORTH Attorney for Movants State Bar No. 24005342 james@bettersworthlaw.com

Jamie Graham & Associates, PLLC Tower Life Building 310 S. St. Mary's Street, Suite 2500 San Antonio, Texas 78205 Tel: 210/308-6448 Fax: 210/308-5669

Cause No. C2013, 1375D; In the Interest of J.R.B., a Child; Order of Enforcement Page 7

EXHIBIT B

FILED Shari Peterson

C2013-1375D 12/14/2016 9:53:43 AM Heather N. Kellar Comal County District Clerk NOTICE: THIS DOCUMENT CONT AfNS SENSITIVE DATA

NO. C20l3-1375D

IN THE INTEREST OF § IN THE DISTRICT COURT § J.R.B. § 433RD JUDICIAL DISTRICT § A CHILD § COMAL COUNTY, TEXAS

NOTICE OF APPEAL

This Notice of Appeal is filed by Jonna G. Peltier and James Peltier, Respondent, a party

to this proceeding who seeks to alter the trial court's judgment or other appealablc order.

l. The trial court, cause number, and style of this case are as shown in the caption

above.

2. The judgment or order appealed from was signed on December 9, 2016.

3. Jonna G. Peltier and Mark Peltier desires to appeal from all portions of the judgment.

4. This appeal is being taken to the 3rd Court of Appeals.

5. This notice is being filed by Jonna G. Peltier and James Peltier.

Respectfully submitted,

]AMIE GRAHAM & ASSOCIATES, PLJ..C Tower Life Building 310 S. S\. !Vlary's St., Suite 2500 San Antonio. Texas 78205 Tel. (210) 308-6448 Fax (210) 308-5669

'SLM'

State Bar No. 24027335 Audrey E. Manriquez Stale Bar No. 24029704 Attorney for Petitioner

Certificate of Service

I ccrti(v that a true copy of the above was served on each attorney of record or pasty in accordance with 1he Texas Rules of Civil Procedure on December J.t/ . 2016.

EXHIBIT C

8306064:i:33 Michels.on Realty Company,LLC 04:23:25 12-21-2016 11 i25

FILED Shari Peterson C20i3-1375D 12115/2016 5:49:20 PM Heather N. Kellar Comal County NOTICE: THIS DOCUMENT Dislrlct Clerk CONTAINS SENSITIVE DATA

= ~

CAUSE NO. C2013,1375D Cl r,;; ~ IN THE INTEREST OF § IN THE OISTRIC COURT :: .. · \...0 § A J.R.B. § 433 JUDICIAL !STRICT r '::: r .

i T~~ C r. ., A CHILD COMAL COUN7T, : Ll MOTION TO REVOKE SUSPENSION OF COMMITMENT AND ORDER TO APPEAR l ~ j This Motion to Revoke Suspension of Commitment is brought by PATRICK SMITH and DEBRA

SMITH, Movanls, who request the Court to revoke the suspension of a commitment previously ordered by

this Court. Respondent JONNA G. PELTIER, may be served with process al 707 North I.H. 35, Apt. illl06,

New Braunfels, Texas 78130. Respondent JAMES PELTIER, may be served with process at 707 North I.H.

35, Apt. #806, New Braunfels, Texas 78130. In support, Movantshows:

1. On November 17, 2016 !his Court heard the Movants' Motion ior Enforcement and a rullng

was rendered. On December 9, 2016 !he Court signed an Order of Enforcement by Contempt and

Suspension of Comml!ment that appears of record with fhfs Court in which Respondents were found to be in

contempt of this Court. That order states In relevant part as follows:

'Crimlnal Contempt

/TIS ORDERED that JONNA PELTIER shall pay assessed a ffne oftwa thousand do/lam ($2,000.00)

and con/inemenl in /he county jail of Comal County, Texas for a period of ninety /90) days for each violation

enumerated above. IT IS THEREFORE ORDERED that Respondent JONNA PEL TIER is committed to the

county jail of Comal County, Texas far a period of ninety {90) days for each separate via/at/on enumerated

above. IT IS ORDERED that each period of confinement assessed in this order for JONNA PEL TIER shall

run and be satisfied concurrently, not to exceed a cumulative total of ninety (90) days.

In th• fnterost of J,R,B., a Child; Motion to R.voke Suspension of Commitment nod Ortler to Appear Page 1

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IT IS ORDERED that JAMES PEL TIER she// pay assessed a line oftwo thousand dollars ($2,000.00)

and confinement in the countyJail of Comal County, Texas for aperiod of ninety (90) days for each violation

enumerated above. IT IS THEREFORE ORDERED that Respondent JAMES PELTIER is committed to /he

county jail of Comal County, Texas for a period of ninety /90) days for each separate violation enumerated

above, IT IS ORDERED /hat each period of confinement assessed in this order for JAMES PELTIER shall

run and be satisfied concwrent/y, not to exceed a cumulative Iota/ of ninety (90) days.

Additional Periods of Possession

IT IS FURTHER ORDERED /hat Movanls PATRICK SMITH and DEBRA SMITH shall have four /4)

4 add11iona/ days of possession to compensate for the periods of possession denied to be completed as follows: 12119/16,' 01/09117; 01/23117 and 02/06117. Pick up and drop off will be as previously ordered.

Suspension of Commitment

IT IS FURTHER ORDERED that commitment is suspended and that the Respondents be placed on

community supervision for a period of ten years on /he fol/owing tenns and conditions:

1. IT IS ORDERED /hat Respondents JONNA PELTIER and JAMES PELTIER, wflhin lhirly

(30) days of this order, each pay a fine of $2,000.00 as herelnabove ordered. This fine shall be paid to /he

District Clerk of Comal County, Texas.

2. IT IS ORDERED that Respondents JONNA PEL TIER and JAMES PEL TIER, within thirty

(30) days of this order, pay $6,800.00 lo Movants as reasonable and necessal}' a/iomey's fees. This

payment shall be made directly io JAMES S. BETTERSWORTH via cash, cashier's check, or money order

ai 110 West Faust Street, New Braunfels, Texas 78130.

3. IT IS ORDERED /hat Respondents JONNA PELTIER and JAMES PEL TIER comply with

all prior orders of the Court."

2. Respondenls have failed to comply with fhe terms and conditions of suspension as fol!ows:

In the Interest of J.R.8. 1 a Chlld; Mo.lion to Revoka Suspension of Commltment anti Order fo Appear Paue2

8306061'.1133 Michelson Realry (cmpany,LLC 04:24:li 12-21-2016 l 3 125

a. Respondents failed to allow Movanls !he opportunity to skype or!alk to J.R.8. on 11/17/2016 as required by the Court's order;

b, Respondenls denied possession end access of J.R.8. lo Movanls on 11/1812016;

c. Respondents failed to appear with J.R.B. atthe exchange location on 1i/1812016;

d. Respondents failed to atlowMovan!s !he opportunitytoskypeor!alk toJ.R.B. oni 1/2112016 as required by the Court's order;

e. Respondents failed to allow Movanls tl1e opportunity to skype or talk to J.R.B. on 12/01/2016 as required by the Court's order;

f. Respondents denied possession and access of J.R.B. to Movants on 12/02/2016;

g. Respondent's failed to appear with J.R.B. at the exchange location on 11/18/2016;

h. Respondents failed to allow Movants the opportunity to skype or talk to J.R.B. on 12/05/2016 as required by 1he Court's order;

i. Respondents failed to allowMovants the opportunitytoskypeortalk toJ.R.B. on 12/0B/2016 as required by the Court's order.

Movant requests that the Court order Respondents' arrest by warrant and !hat Respondents be

brought promptly before the Court after arresl

Movants request that !he previous suspension of comm!!rnenl be revoked and that Respondents be

committed In accordance with the prior order.

3. Movant objecls lo !he assignment of !his matter to an associate Judge for a trial on !he merits

or presiding at a jury trial.

4. II was necessary to secure !he services of JAMES S. BETTERSWORTH, a licensed

attorney, lo enforce and protect the rights of PATRICK SMITH and !he child the subject of this suil.

Respondents should be ordered to pay reasonable aflorney's fees, expenses, and cosls, and a judgment

should be rendered in favor of the attorney and against Respondenls and be ordered paid directly lo !he

undernigned attorney, who may enforce the judgment in the altomey's own name. Enforcement of the order

In ilie Interest of J.R.B., a Child; l,lollon to Revoke Suspension of Commitment and Order lo Appear Pagel

8306064133 fvhchelson Realty Company,LLC 04:24:32 12-21--2016 14 /25

is necessary to ensure the child's physical or emotional heal!h or welfare. The atlorney's fees and costs

should be enforced by any means available for the enforcement of child support including contempt but not

including income withholding. Movant requests postjudgment lnlerest as allowed by law.

Movant requests !hat !he suspension of commitment previously ordered be revoked and fhal

Respondents be committed to the county Jail in accordance with the prior order,

Movanl prays for attorney's fees, expenses, costs and interest and for all further refref authorized by

law. Respectfully submitted,

THE BETTERSWORTH LAW RI,,_..--..__ 110 W. FaustSlrnet New Braunfels,;f xas 78130 Tel: (830),600-0404 Fax: $0) 626-1414

. ES S: BETTERSWORTH Slate Bar No. 24005342 beltersworth@betlersworthlaw.com A!lomey for Movanls

In tlm !nleit!st of J,R,8. 1 a Child; /;1uUon to Revoke Suspanslon of Commitment ond Order lo Appear Page 4

830605tl 133 Michel:,on Reaity Company,l..LC 04:24:46 12-21-2016 15125

Verification

The undersigned states under oath: 'I am Movant in the foregoing Motion to Revoke Suspension of

Commitment. I have personal knowledge of the facts and allegations stated In it, and they are true and

correct.'

PATRICK SMITH, Movant

SIGNED under oath before me a.;j)@:1(21;t&,JS:::JD//:, ( j ~ 7 ; ; 1 ,/ ½ ':z!J,dlc:.·b,µJlfffi.~

Verification

The undersigned states underoath: 'I am Movant in !he foregoing Motion to Revoke Suspension of

Commitment. I have personal knowledge of !he facts and allegations stated in it, and they are true and

correct'

DEBRA SMITH, Movant

!n the In/ere.st of J.R.FJ., n Child; f.lotfmi to Revoke S1.1s/lMsl:m at Commitment :mo Ord!!r 10 Appe~r ?.,gc. 5

8306064133 Michel$on Realty Company,LLC 04:25-:05 12-21-20H' 16!25

Order to Appear ~c.e,,'t\ber Respondent, JONNA G, PELTIER, is ORDERED lo appear before this Court on JAfil:Ml?f 30, l a.m. and respond to this Motion to Revoke Suspension of Commttment. I 2016 at 9:00 The purpose of this

I hearing is to determine whether Respondent has violated one or more terms or conditions of U1e prior l• suspension ofcommitment as alleged in this Motion to Revoke Suspension of Commitment, whether afurther

attorney's fee and costs should be assessed against Respondent, and whether Respondent should be

Immediately confined In jail as assessed In the prior order,

It Is further 01dered that any authorized person eighteen years of age or older who Is not aparty lo

p.7 or interested in the outcome of this suit may serve any citati~.~· notice, or ro~,hls case. _

SIGNEDon l;)- lCJ-\&> ){~b~rv JUDGl?PRESIDJNG

In th• Interest of J,R.B., a Ch/Id; Motion to Revoke Suspension of Commitment and Onlor lo Appear Page$

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Order lo Appear Y:.e.c.ember Respondent, JAMES PELTIER, is ORDERED to appear before this Court on JANtfA~ 30, 2016

at 9:00 a.m. and respond !o !his Motion to Revoke Suspension of Commitment. The purpose of this hearing

is to determine whether Respondent has violated one or more terms or conditions of !he prior suspension of

commitment as alleged in this Motion to Revoke Suspension of Commitment, whether a furU1er attorney's

fee and costs should be assessed against Respondent, and whether Respondent should be Immediately

confined In jail as assessed in the prior order.

It Is further ordered that any authorized person eighteen years of age or older who Is not a party to

JUDGE'P.ffESIDING .,,

In !he lntatest !J( J.R.B, 1 a Chlfd; Mallon to Revoke Suspension of Commitment 2nd Order lo Appear Page 7

EXHIBITD

12/2212016 In re R.E.D. I Findlaw

Semch Fi :dl.aw

In re R.E.D. Prim Font size:

Coul't of Appeals ofTexas,Houston (1st Dist,), rn re R.E.D., Relator. No. 01Mo8-00727MCV. Decided: February 05, 2009 Panel consists of.Justices TAVI', KI:.'YES, and ALCALA.Karl E. Hays, Austin, TX, Robert,J. Piro, Robe11 ,J. Piro, PLLC, Houston, TX, for Re!ator. Daryl L Moore, Daryl L. Moore, P.C., Marshall Davis Brown .fr.. Pavlas & Brnwn, LLP, Hous!Ot)., TX, for Real Party in Interest. Ol'IN'!Ol\

In this original proceeding, relator R.E.D. seeks a writ of habeas coqms to secure his release from a commitment order hm1ed by the :312th .Judicial District Court of Harris Cmmty. This commitment order arises Attorney Corporate Counsel from a motion for(mforcement filed by the real patty in iulerest, S.C.D., relator's estrnngcd wife, who al!ege<l Academic !hat rda!orviolatedan agrE'<:!dorderthat restricted both relator andS.C.D. from selling persom1ltyor 1"€a!ty in Judicial Clerk eithC!r their separate Of their community estates. in four issues, relator argues that the trial court's Summer Associate commitment order b \·oid because (1) there is no proofthatrelator intentionally \iolated the agreed order; (2) Intern renl party in interest's motion to enforce the agreed order is defective and failed to give him fair notice of the Law librarian

charges against him; (3) the order re!ator is accused of violating is ambiguous and tmd('ar; and (4) the trial court lackedjurisdic1j9n to order that he be incarcerated until he pays $367,537.00 into the registry of the comt.

We decline to issue the writ and wi!hdraw our temporary order to st.ayenforeementof !11e trial court's commitment order.

Bac.kgro1md

Rd a tor filed an nrigi:ial petition for di,.urce against S.C.D. 011,Ju.Jy 6, 2006. The parties jointly Ji!ed a motion enti!.l,~d ""Agreed Muti.i;:J Tempornry Injunctions," which govcnwd the parties' financial transactions during the intcirva! between the initial filing and the final resolution of the dhwce proceeding. ln the joint motion on temporaryinjanctioiw, the parties agreed to the following language:

4.;:; It is on:len..'<! tha1 Pe!itioner, R.E.D. and RespondentS.C.D. are enjoined from:

k. Selling, transfoni1ig, assigning, mortgaging, or in any other manner alienating anyofthic property of l'e!itioneror Respontluni, whether personalty or realty, and whether separate or community, except as specifically authorized by order of this Court. Findlaw's Le!}:!! Grounds The trial couti signed the order enforcing the parties joint motion ("theag;reedorder..) on .Jt~y 31, 2006. cc•,,.,c , •• 11:Q.:ti i'i:WS /JC!Nf'C8d

On ~lay 5, 2008, S.CJ}. fik'!I her~ThirdAmendedMotion for Enforcement, or in the Alternath-e, Motion for Clarification," alleging thatre!ator had violated the agreed order. S.C.D. alleged that, on ,January 16, :wo8, relatortestified uoder oath before the trial courttllat he had sold stock rnluedatS6oo.ooo from the parties' Ameritrade uccount

The trial courtC()!lveni:<l an enforcement hearing on July 15. 2008 to determine whether relator had violated the agreed order. t{elalor reiterate<lhis prior testimony that he did sell stock from the parties' Amerih.ide accou.nt, and he added that he sold the s!ockduring the period between December 2007 and ,January 2.008 because he "'wantB<l to pardeot. ~- 1-io~\·evcr, relatordisputedS.C.l).'s claim that the stock was valued at S6oo,ooo. He testified that he nmi_k, ;, $200,000 pa;1nentto t.heirchildocn's trust from the proceeds of the sale because he "wanted to cut the int~,rest amount down," although he admitted the payment was not due for another 12 mnn!hs. He t'c'stified that he placed approximately $367.000 generated from the stock sale in a checking accmmt.

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1212212016 In re R.E.D, I Findlaw Rclator reiterated 1l1:,1 he sold stock because he chose to sell the stockont of want rather than need, and he admitt<:d that he had no authorization from S.C.D. or the trial court to do so. Relator also admitted that he eould have sold st(}(;~ 1/lat had already been stipulated as his separate property, but he decided to liquidate the Ameritrade account i.11-t•n though il~ characterization as separate or community prnpertywas in dispute.

Based on relator's tcsdmony and o!hcr evidence pres1cntedat the hearing, the trial court found that relator had violated the agreedony:r and signed an order that included a writtenjudgmentof contempt Thetria! comt also signed.a conuni!Rielll order directing respondent, Harris County Sheriff Tommy Thomas, to take rdator into custody and to CQ;tfine rel a tor for 10 dc1ys in the Harris County ,!ail. The commitm,.mt order also directed the sheriff to confine f!dalor beyond the rn-daysentence LU1til rnlatnr deposited the S:~67,000 generated from the stock sale lnb) thit trial court's registry. Relator fik>da petition ,,,Jth this Court seeking a writ nfhalieas corpus along with a mution fortemporaryrdief. On August 28, ::wo8, this Courtgrantdi temporary relief by staying thecommiti:nentorder.

Standard of Review ou Habeas Corpus

Here, the agreed ord<;r rdatorv-.,;is hdd in contempt for,-io!ating was issued pursuant to section 6.502ofthe Te:,;.as FanlllyCoda. !*:ction 6.502 provides, in relevant part:

Tempornry lnjuncticm and01herTemporaryOrders

(ri) While a suit for di~solution ofu nrnrriage is pending and on the motion of a patiyor on Uie court's own motion after not.ict> and hearing, the court may render an appropriate order, including the granting ofa temporary injunction fDr the praserva!ion of the property and11rott1ction oftlH.' parties as deemed necessary and equitable :tnd induding an order directed to one or both parties.

(7) prohibiting the p<ifties, or aither party, from spending funds beyond an nmotmt the court determines tn be for reasonable and n<>tCCS5ary living expenses! ,J

Tex. Fam.Code Aun. 9 6.502 (Vernon 2006).

A trial court may eninrce any tcmpnrarycourtorder in a divorce suit by punishing a violation with contempt 'l'ex. Fam.Code Ann. S 6.506 (Vernon 2006); see also fa pa rte Butler, 523 S.W.:2d 309,311 (Tex.Civ.App.- Houston [1st Dist.J 1975, no writ) (cm1rtdenied writofhal'x'as eorpns after hit<;band ,,iolated dearly defined Lcmporat:,v trial courtwdcr amt wifo fik>dmotion for contempt). Relator is diargL>d with construclive contempt. Constrnetive contcmi~t, as opposed to dirc.,ctconlempt, involves conduct by the rdator that occur,,; outside the presence of the trial eourt Ex pa rte Gordon, 584 S. IN. 2d 686. 688 (Tcx.1979). Such. conduct inclmfos the relator's failure to comply v,ith a court order. Id.

Ajudgmentofcnnn:mpt may be either civil or criminal. Kx pa rte Werblud, 536 S,W,2d 542, 545 (Tex.1976). The purpose of civil ton tempt is remedial and coercive. Id. A judgment of civil contempt exerts the judicial authority of the comi to pcrsuack the contemnor to obey an order of tha court when obedience will bcnafit an opposing !iligant. l(l, ··tmprisonment is conditional upon obedience and therefore the ciri! con1cmnor'c::uTies the keys of(th\e} prism, in (his) own pocket.'" !(l (qaoting Shil!itnni v. Cnitcd States, 384 U.S. 364,368, 86 S.C!. 1531, 1534, 16 l,.Er,l2d 622 (1966)). When a re!ator has committed civil contempt, he may prncure his release bycomplianct.: with ti)e provisions of the court's order. Id. Criminal contempt, by contrast, is punitive in nature in that the ~l'ntence is not conditioned upon a promise of future performance; rather, the contemnor i~ being punished fof;, completed act that affronted the dignity and authority of the court. Werb!ud, 536 S. \.V,2dat 545 (citing ~hillitani, 384 U.S. at:368, 86 S.CI. at 1534). Here. thejudgmentofcontemptentered against re!ator by the trial court is ajudgrnenl of both civil and criminal contempt bL'C<luse it both punishes nel11!or by ordering him confined for 10 days for his violation of the agreed order and coerces his complianca with the agl'l.'<."(}ordcr by ordering his continued confinement until he places tlw S367,ooo recaived from tha stock sale into the regislly of the court.

We issue a writ (lfff:,beas corpus to n,lease a n'lator from the trial court·s commitment orderon[ywhan !lie order is niid. E.x park Barnett, 600 S.W,2d252, 254 (Tex.1980); In re Parr, 199 S.W.3d 457,460 (Tex.App.- Houston [1st· Dist.] 2~!06, no pet.). In order to hold that the !rial court's commitment order is mid, we mus! find eitiier the trial COl!fl lacked jurisdiction to enforce the order or the trial conrt "deprived relator of his liberty without due proces~. ~ Barnell 600 S. \V.2d aL255 (citing E._,.; parteGordon. 584 S.W.2d686 (Tex.1979)).

To satisfy· the due pi:ocess requiremenl'i necessury to support a crimi11al contempt conviction, there must be pmof be)1)nd 11 reason,1ble doubt that (l) the court issued 11 reasonably specific order, (2) the contenmor violated the court's order, and(3) the contcmnor's violation wns a willful act. E.x. parte C1iambers, 8q8 S.W.2d 2.S7, 259 (Tex.1995). \\'c d(I H•!tdetcrmine whether the relator is guilty or innocent of contempt; our role, instead, is to determine wheth,,r th.: re!alor has ~en illegally imprisoned Gonion, s84 S. W .2.d at 688. The order is presumed to be valid t_i;tti! tha relator discharges his burden of proving otllcrwist', In re Turner, 177 SJA'.3d 284. 2.88 (Tex.App.•llnuston [isl Dist.] :wo5, orig. proca<-'(ling), Unless lhe petition forwritofhabeas corpus shows that the judgm~nt of contempt is void on ib! face or is so cmnplcte]ywithout e,,identinry support as to be rendered void, the peljtion mu~t be d,miad Butler, 523 S. W.2.dat 311. An appellate court lacks jurisdiction to weigh the proof to dtl<,rmine whether it preponderates for or against the relator; it has jurisdiction only to determinewhether'th1:;jw.lgmentis void. Chambers, 898 S.\N,2dat :259-60.

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12/22/2016 In re R.E.D, I FindLaw In bis second issi,i:, relatnrargues thatS.C.D.'s motion forcnforcemcm, upon which the trial court's conunitnwnt order i:, Laserl is defective and does not prO\ide rdator fair notice of the charges agaim;t him. Relah)rargues that S.t:,D.'s motion to enforce merely charged relatorwilh testifying that lwsold tlw Ameritrade stock R,:,lalorargH~:°~ !.hat S.C.D. 's motion '>\'as defeclivl":! because the ,illegations made in the motion to t:>nforce neither charged him t:'::·ith violating the agn:icd order nor identified the particular stock transactions he made.

Due procC'.'!S requir,;:, that a constructivccontcmnor must have full notice of any charges against him and a reasonanlcopportnnity to rebut those charges. Gordon, 584 S.\V.2d al 688. The trial court must iss1re adequate legal proc<J.;~ to apprise the contemn or of the c.!rnrges. Id.; Ex pa rte Barlow, 899 S.\N,2d 791, 795 (rex.App.-l!ouston f i.tth Dist] 1995, orig. profeeding). A judgment of contempt entered without proper notification is a nulllly. C'-.on:lon, 584 S.l,N,:::idat688; Barlow, 899 S.W.2d at 795.

Here, S.C. D. spe<:ifit.il!y set out, in her motion to enforce, the !angunge from the agreed order for mutual temporary injunctimi1i that rdalor helped to prepare:

4,:3 11 is ordered th<1i 1-'etitioner, R,E.D. and Respondent S.C.D. areenjoine<l from:

k. Sd!ing, transferring, ussign!ng, morlgagiug, or in any other manneralil•nating any of !h.e property of Petitioner or Respond~nt, whether personalty or realty, and whether separate or commmiity, except as specifically au1l10dr~i\ by order of this 0:mrt.

S.C.D. alleged in her "'fhirdAmended Motion forEnfo1tt>mmt, or in the Alternafae, Motion for Clarification";

On ,Januaiy 16, :woll, Petitioner R.E.D. testified before this Court that he had sold all is~ues of stock with tile exception of three ls~t«:!S in thl' parties' Ameritrade accow1t and that the sale gen\":'rateddose lo S6oo,ooo,

The motion to enforrn ,;pecificallyalleged that re!ator admitted under oath thal he had sold 8600.000 in stock from the parties· Amentrade account, thus giving relator notice ufthea!leglcd non-compliance-relator's admission that he soi~tpcrsonalty from a commm1iLy asset. The motion !o enforce also alleged a specific date, <l specific account. an~la specific monetary sum sufficient to give relator fair notici' of the charges against him. lkcatt~e of the specificjty of the allegations mad:r:, rd a tor had imfficient notice of the charges assetied against him. \.Ve conclude !hut S.C.D.'s motion is not defective and thntit provides rdator with the net:essarydetails to giw rela10r fair notic~.

Rel.nor also had an \l{!portunityto defend himself against the charges made against him in the motion to enforce. On ,July 15, ;<008, the trial courtlwldan enforcement hen ring on S.C.D.'s motion to enforce. Atthe hearing, the following exchange took place between rdalor and counsel for S.C.D.:

[S.C.D.]: This is the f1Huih hearing we\·e had in this matter, where you'w spoken aboul the $600,000 that you took out <Jf Ameritrad,:J, correct?

[Relator]: I sus110::tth;_1fs correct.

[S.C,D.]: Excuse me. Why not? Do you recall my question?

[Re!ator]: Will you bil kind enough to repeat it?

[S.C.D.J: This is at !1:ast. today, this hearing is at !east !lH! third time, at !east !hti third timeyou'rn testified that you withdrew S6oo,O(!O from the Ameritrade acc01mt, correct?

[RelatorJ: l believe !h;.;t's c:oncct

LS.C.D.]: l.\'ow tlle fifot time you testified to that was back in January of' 08, U1at would haw been nearer in time that the Amrritrqde account was, thl! stocks were nt'gotiated out of it?

[Relatorl: Yes.

Counsel forS.C.l). b1:i;,1n to ask reiatorabout the locil!ion and the amou.nt of the ri::maining stuns available from the Ameritrad<? ilCCO!UJt sales.

[S.C.D.J: What I Ulinkyou've told me, and if! come up anywhere wrong, slop me. l think you told us under oath more than onct\ :.:ven today ns a matter of fact, that you sold about S6oo,ooo worth of Ameritrade stock in Dl'temher in '07. ls thatwhatyou testified to?

(Relator]: Thnt is a l_l;i:t, yes,

[S.C.D.]: Okay, I thin\;.you've 1estified that after looking at all of the Frost Bank account statements from Oecember through Apiil of this year, that we can, that you could only identify $;j67,oon thatwns de1iositedin Frost Bank. exnt.'ie llil;:, that Frost Bank account, com>ct?

[Rdator]: Co1Teet

Based on th!s testinwityandndditiorw! t:vidence pfl.'sentNl at the hearing, the trial court made the following. finding:

The> {;()urt. having h~<l(d U1e t:Vidence and argwnent of coWJsel, and hmfog taken judicial notice of th,:, Coult's file, finds Uiat ltE.n, is guilty of contempt for wil!fu!ly, intentionally and contemptuously disobl'ying and

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1212212016 In re R.E.O. ! Flndlaw violating this Court'~ ;';.gr,:,edl\!ntual Temporary Injunctions issued on ,July 31, 2006, by selling, transferring or otherwise alienating :rlock,<; held in lhe parties' Ameritrade account for the approximate sumofS367,573 in December of 2007 iH,t!/or ,January of 2008, whil;:• the Agreed Mutual Temporary Illjuncti1H1s v,we in full force nnd effoct.

In his briefing to fjli,; tXiurt, rdator does not dispute his ti;stimony at the hearing on January 16, 2008. in which he admitted lll}t he sold the stock. Rd.iror repeated his tesllmonyat the enforcement heaiing on ,July 1.5, 2008. S.CD.'s ;!_!legation merely recalled relator's admission of this fact. Snd1 an allegation in the motion to enfrirce iS s11fficient to give relator notice of a fac.tto which relater ndmittcd twice under oath. St,,e Ex parte Smith, 467 S. \',>.·~d411 (l'ex.Crim.App.1971). llffause he twice testified tliat he sold stock in the patties' Ameritrad,~ acrmml~!_1ring the period lictween December 2007 nnd,Janumy2008, rdator had sufficient information in the n10tior1 lo identify the stock transactions iu question.

Rebtor rdies OH fa µ\iflt' t'arm:yto argue that S.C,D.'s motion to enforce is so Jacking in specificity as to deny rclator fair notice. See 903 S. \\'.2.d 345, :141-47 (Tex.1995). Carney is inapplicable tu U.is case. In Carney, the re)atorwas gmnilf,! rdief after ajucl~menLcrcditor's motion for contempt based on the trial court's turnover order was found Jacid11g "the requisite sp&.:ificity'' ,mfficie11t for fair nol!ce. Id. at :346. In that case, the motion for con temp\ ihat charged rel a tor with guilt did not give relator notice of U1e subject matter of the mo!ion for contempt because ij'le turnover order the relator w,is held in contempt for violating ordered the turnover of broadcateiories ofa~sets and documents without identif::,ing any specific docrnnenl<1 or asse!s to be turned onir. Jd1 Nor was /ll\)'Other inforn)ation provided lo the relatorat!lie show cause hearing. kl. Real party in interest in U1is ca:;e i~ not ajttdgment creditm; 1·e!ator is not a judgment debtor; the order violated was not a turnover order; and the amount of money derived from the stock sa!e and ordered to be placed in the registry of the cottrt was specilk.d!y identified and traced to relator's improper sale of stock both in the motion to enfor<'e and in the hearing,

In addition to taM! I«½, rdator relics on subsection 157.002(b)(2) the Texas Family Code to argue thatS.C.D. faih:d to meet the sial11Jory fair notice requirements found in the Code. Relatorci\es to a section of the Texas Family Code app!it:abk 10 motions foreafon:ement used in suits affecting the parent~child relationship. See Tex. Fam.Code Ann. § 157.on2(b)(2.) (Vernon 2002). Relator's reliance on subsection 157.002(b)(2) is misplaced bee.am;;; thh; subsection governs only motion for enforcement of child suppo11 orders. See id.; S(:e also id. at§ 157.r.)01 ("A motion fotenforcementas provided in this chapter may bt' filed to enforce a final order for conservatorship, ~hild su11port, possession of ot' access to a child, or other provisions of a final order.'").

We hold that relat0r had fair notice of the sa~ject matter of the contempt motion.

We overrule relator's :jl!cond issue.

Clear and Unambiguuus Order

ln his third issue, r~,Jator argues that the trial court's cvmmitmentorder is mid bt.'t.·ait~c tJic underlying ar;reed or,-.l.Jr is unclear, general, ambiguous and sttbject to more than one interpretation.

In order to suppOf! a judgment of contempt, the underlying decree must set forth thetenns of compliance in dear, specific and m/.Jrnbiguot1s terms so that the person cbMged with obeying it will readily know exactly what duties andohligytions am imposed on him. Chambers, 898 S.\\'.2.d 257, 261. Generally, a court order is insufficient tu support a contempt conviction only i,vhen its interpretation ·'requires inferences or conclusior1s about which reasonah\e persons might differ." Chambers, 898 S. \.'\'.2dat 260 (citing E.x p;:irle MacCallum, 807 S. W.2d 729, 7'.)0 {Te~.1991)). To prevent tbeenforcement of a court order, the ft'Sisting pa1iy must show that rhenrder has a reaso11;i.ble:iltcrnative construction, Id. The order does not have to use language so specific as tn counter everyaltematiYe interpretation. Id.

Relntor arguts thatfh(: following two po11ions oftheagrt'etlorder, when read together, creiile such ambiguity tha!. the trial court's c1H11mitmentorder is mid:

4.3 It is ordered i11at Petitioner, R.E.D. and Respondent, S.C.D. an: enjoined from:

k. Selling, transferring, assigning, mortgaging, or in anyothermannerafa,n,iting any of th(' pmpertyof Petitioner or Respo!llknt, whether personalty or realty, and whether scparateorcommanity. except as specifically authorized by order of this C.Ourt.

4.4 It is furthcronkrl.'d that Petitioner, llB.D. and Respondent. S,C',D. arc authorized only as follows:

d. To enga)!.e in .id~ reasonable and 11l'C<.'ssal)· to conduct Petitioner or Respondent's usual hw>iness and occupation.

Rein tor agrees tliat tht' plain meaning of section 4-3(k) of the agn,..-..,dorder permits only !he reasonable interpretation that reh,torwas prohibited from selling the stock in the Ameritrade accorntt. liowe\·er, relator

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12/22/2016 In re R.E.D. j Findlaw argu<=s th<1t when ~c,q:;m 4.J(k) is mad together with section 4.4(tl}, the order becomes ambiguous bemm;c the trial coml failed io d~i\ne "usual business and occupation<"

The puqmse of St:Clit>iJ 4.,.1(d) is ma(!e dear when read in context. The following sections comprise the entirety of section 4.4 of the 1i,;reed urder:

4,4 Jt is furt!wrunki~ that Petitioner, R.E.n. and Respondent S.C.D. an•autlwrizedori!yas follows:

a. To nmke f'Xj301ll)\!Ures and incur indebtedness for reasonable and !lecessary li,ini:; e;;penses fnr fuod, clothing, shelter, trnr,nxmai-ion and medical care;

b. To make exp,:ndi!itres and incur indebtedness for reasonable attorney's foes and expenses in connection ~,;ith !his suir:

c. To make withdnn,·als from accounts in finandul institutions only forU1e pmposes authorized by the C'om·t's Orderand

d. To engage in t1Cl>' reasoaahJe und necessary to conduct Petitioner or Respondent's usual tmsiness and occupation.

The purpose of SL'{;tion 4,4 is merely to create narrow exceptions to the prohibitions outlillL'tl in section 4.3 of the agreed ord€r of immml temporary injunctions. These exceptions allow the parties to use funds for basic living expenditures, bosiness expense;;, and legal help. 11w exception in section 4.4(d) does not modify the language in section 4.J. S.C.D. crm"t:,'Ctly statt>s that the plain meaning of section 4,:l(k) could ht' interpreted only as a dear prohl!iifion against selling personal community property, including stock in the Ameritrade account.

Relator's own testimunyestablish<·d that he did nots~k authori1.ation frnm the trial conrtto sell the stock and, in so doing, vio!atml Uic comi order. i!c faill'<l to make any showing th.it the stock was sold in the "reasonable 11nd aecessary" condunt of J1is ''usual business and occupation" or to pay 1lecess,iry expenses. Rather, re la tor chose to pay taxes aiu_l lo make a deposit in a trust frnulaccnun! that was due 12 months after rolator made the deposit. Rclator testilit-cl that he sold the stock because ''he wanted to" do so, and, in so doing, he chose to liqu.idale an accmm\ \~>hose characterization as community propc:iywas disputc<lralher Urnn to sell stock stipu!a!l'd to be his separate property,

\'Ve conchide that the trial court's commitmrnt ordN· is rnhdbecausc the agreed order was sufficiently unambiguous to giH•, rdator fair notice of the prohibitions and, therefore, the trial court's commitment order is valid.

We o\'errule relator·~ third issue.

Intentional and \A'i!!fo! Violation of Trial Court Order

In his first issue, rd_ator nrgttes that there is no pruofbeyonda reasonable doubt thar he intentionally and willfully violatt'tl the :igreeJ order and, therefore, U1e commitment order is voicl

To raise an inforcntc\7 1hata contcmnorintentionallyand willfuilyviolarnda court order, thecontl1mnor must have ntitice ofan mw.t!lbiguous coU1torder. .E.x parte Chambers, 898 S.W.2d at 261. Here, relator had notice of the "Agre('d Mutu.~I fempora(}' Injunction" Ikea use rl'lator participated in the formation of the agre.:d order. Paragraph 4.3 of the 11r,;reed order unambiguously prohibited relator from sel!ing or transferring any property, whether pcrsmrnltyor renlty, sepnrate or community, "except as specifically authorized by order of tliis (.Ou.rt." Relator's attorney sig;,.eJ the agreed order, approving it on relator's behalf as to form and substance. Rel a tor testified !H' "knew al! about" the language and rights set forth in the agree<lorder and that he knew an injm1ction against his actions was in place when he sold the stock. Thelrial court could han'! found beyond a r1.•,1sonahle doubt tha! J'elator intentionally and willfully vi.olati2d the 1rial court's order.

\Ve O\·err1rle relator's lirst issue.

Incarceration for a De/lt

in his fourth issue, ielator argues that the trial court's commitment order b void bf.'Ca1t~e the trial court lacked jurisdiction to impos'-: incarceration for a debt obligation. Relator argues that the tri,11 co1l.!'t's order that he pay S;{67,ooo lnto the em:,t regisny is unconstitutional bi:cause the order creates a debt and a!so directs resp<-indent to continedre!atnr for .failure to comply with the trial rnurt's (Jrder. &-e Tex. C.Onst. art. L § 18 (pro~kling, ~lN Jo person sha!I ev.::r be imprisoned for debt").

A district court poss~sses broad powers under !lie Family Code to 'order a divi£"ion of the estate of the parties in a manner tl1at the 1'.purt·<leemsjust and right" See Ex pa lie Preston, 162 Tex. 3i9, 382-83, 34i S.W.2d938, 940 (1961); sre also Tex. Fam.Code Ann.§§ 7.001, 7.on2 {Vernon ::!008). The district court cannot order and bring a boat a d.ivbion of the community estate unless the estate is firsl subjected to the court's control. Pr-eston, :347 S.W.2ctn1· 940. A party who has !lie right of control and clisposition ofU1c community estate and who reduces a partof~rnt es late lo cash is nol a debtor of the other pa11y, but rather he is conslrncll\'elya trustee in holding th<! community assets and may be compelled to account' for the disposition ofthos.e assets by the coltf!. See id. There is no qut'Stion about the right of the trial court to hold a lnL'i!l'{' in t:ontempl of court for willfully refusing 19 obey an order to pay over funds heldi.n his hands into the registryoftliecourt in such a case. See id. ai ()<J0,41.

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12/W2016 In re R.E.D. I FindLaw Relatnr relies on in 1,; ~unu to suppott his argmnent that a trial courtcannnt incarcen:ite ,1 contemnor fora debt, even if the deb, ~dses from the I.rial court's con!emptju<lgment. See 960 S.W.2.dfi,19 (Tex.1997). r-.:unu is disti11guishable frn1.!-l this case. In Nuim. the trial court's commi1.mentorderorder01.1 !he rdator imprisoned rullil he paid an <H~it~llcated debt for damages reimbursing a homeowner's association for expenses incurred because of the relatoi-'s condm::L Id. at649-50,

Here, the trial crn1i:1's commitml'ntorder docs not punish relator for failure 10 pay a damages award but for violation of an injunq\on in the agreed order, issued pursuar1t to section 6.502(a)(7) of the Texas Family Code for''the pn.·,~erva!lon (\f the property and protection of the p:,rfies." See Tex. Fam.Code Ann.§ 6.502(a)(7) (Vernon 2.006). A l1j,1l court in a divort.e proceeding may exercise bnth criminal and civil contempt powers lo enforce its orders whcp a contempt proceeding is instituted after its .iurisdiction has attached. See Wcrblud, 5:16 S.W.2.d at546-4),~ The trial court's ciYil commitment nrderorders relator to place the S:167,noo from the stock sale into the l'Q'.1d's registry, and it orders him to be confined in the Harris County.Jail for rn days as pu.nishment for hi~ violation of the order and to be further confined 1mtil he has placed the money into the rcgistl}' of the court t~, ~oercc his compliance with tlH.' order. 11ie trial court had the power too punish the violation of the agree~! order, and it had the power to coerce relator's compliance with it9 nnfor to place the S,367,000 realized frt~m the: improper stock sale into the registry of the couti. Relalnr "carries the h')'S of (the) prison in (his) own pn(:ket" Werb!ud, 536 S.W.2d at54,5. The trial court had jurisdiction to issue the commitment order.

\Ve overrule appel!an_t'~ fourth issue.

Conclusion

We decline to issue" 1,Titufhaheas corpus and withdraw our Allg:ust 28, 2008 tempor.iiystnyofthc trial court's order ofcomminnerlt.

FOOTKOTES

The turnover 1mkx directed the relatM to turn Ol'er tn the judgment creditor "his share of stock or beneficial intl'rests 'togetherwitl; all documents or record.'! related !O same,' in sevea corporations owned or controlled by [the rcaltorJ. includia~ [his] lnw practice; any non-exempt partnershipdist1ibutions; all non-exempt fimds in cvcryaccountorct,rtifica!eofdeposit in which [he] has an interest; al! non-exempt income distributions due to [him] from all busine,ises fhe] operates or in which he has ail,\'invo\vement; and all cash on hand." fa parte Camey, 90;3 S. W.2d:14s, 346 (Tex.1995).

Tases ofcrimin~l contempt. where the sentence acl'uallr imposed does not f'_XC<.,'t:dmonths imprisonment are exempted from lhe requiremenL<; of a jury trial.~ fa parte \.Verblnd, 536 S. W.2.d 542,547 (Tex.1976). Relator's 10-daycrim.inal pttnishmentfor contempt does not im·oke the constitutional right to a jury.

EVELYl\'. V. KEYES, ,h_l"itice.

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EXHIBIT E

JAMIE GRAHAM &ASSOCIATES. PLLC

December 22, 2016 Via Facsimile (830) 626-1414 Mr. James S. Bettersworth The Betterswerth Law Firm 110 W. Faust Street New Braunfels, Texas 78130

RE: Cause No. C2013-1375D; In the Interest ofJ.R.B., A Child, In the 433 rd Judicial District Court of Comal County, Texas

Dear Mr. Bettersworth:

In that my attempts both yesterday and today to reach you by telephone have been unsuccessful, please consider this my written notice pursuant to T.R.A.P. 52.10, that we are filing a Motion for Emergency Stay with the Third Court of Appeals, with respect to the Order of Contempt you filed in reference to the above captioned matter.

Thank you for your prompt attention to this matter.

AEM/ig cc: Jonna and Jan1es Peltier

---------------· 310 S. St. Mary's Street, Ste. 2500 J San Antonio, Texas 78205 1'11(\'\E (210) 308-6448 ° IAX (210) 308-5669 www.jamieg1·ahamlaw.com

Send Result .leport MFP E'l?.2!2Ul6 15:Si' Firmware Version 2LH_2F00.007.009 2013.11.27 [2lf _1000. OD6. OO?J f_ 2!:'.:_11(1/J, 00(.. fl(Jl] [2l.C_700{!. 007. 00 1i]

Job No.: 114392 Total Time: 0"00' 11· Page: 001

Complete Document: doc11439220161222155635

JAtv\IE GRAHAlv1 1:;,.ASSOCIATES, PLLC

December 22, 2016 Via Facsimile (830/ 626-1414 Mr. James S. Bettersworth The Betterswerth Law Fim1 110 \1/. Faust Street New Braunfels, Texas 78130

RE: Cause No. C.2013-1375D; In the Interest ofJ. R.B., A Child, 111 the 433rd Judicial District Cour/ of Comal County, Texc,s

Deru.· Mr. Bettersworth: 1 esterda and toda to re.ach you by telephone have been No. Date and Time Destination Times Type Result Reso l uti on/ECM 001 l2/22il6 15:57 18306261414 0°00' 11· FAX 200x100 Norma 1 /On