COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00361-CV
IN RE GINA P. HONERMANN- RELATOR
GARINGER
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION1
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I. INTRODUCTION
Relator Gina P. Honermann-Garinger (Gina) has filed a petition for writ of
habeas corpus seeking relief from a September 30, 2010 AOrder of Enforcement
by Contempt and Suspension of Commitment Nunc Pro Tunc.@ For the reasons
set forth below, we will construe Gina’s petition as a petition for writ of
1
See Tex. R. App. P. 47.4.
mandamus, grant relief, and order the trial court to set aside its September 30,
2010 order, including the provision requiring Gina to pay the attorney’s fees of
Real Party in Interest Ronald Van Baker, Jr. (Ronald).
II. FACTUAL BACKGROUND: RONALD=S MOTION FOR ENFORCEMENT
AND THE TRIAL COURT=S ORDER OF ENFORCEMENT BY CONTEMPT
Although the factual background leading up to the trial court=s September
30 order is extensive and somewhat convoluted, the facts pertinent to this
proceeding are straightforward and undisputed. Ronald, who is Gina=s ex-
husband and father of their child P.W.W.B, filed a first amended motion for
enforcement alleging that Gina had violated a November 15, 2001 AOrder
Modifying Prior Order@ that imposed on both Gina and Ronald Athe duty to inform
the other parent in a timely manner of significant information concerning the
health, education, and welfare of the child.@ Ronald=s first amended motion for
enforcement also alleged that Gina had violated an April 30, 2009 order that the
trial court had pronounced orally in open court requiring the following of both
parents:
Any time either one of you take this person—this kid to see a doctor,
within 72 hours—you have the independent right and I=m not
changing that. But within 72 hours you are to send an e-mail to the
other parent that says you took the kid to the doctor and you are to
describe what the doctor said. . . . So in writing, 72 hours, by email.
Ronald alleged that Gina had violated both the November 15, 2001 order and the
April 30, 2009 oral pronouncement by taking P.W.W.B. for therapy and
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counseling every two weeks from May 2008 through April 2009 without notifying
Ronald.
On August 27, 2010, the trial court heard Ronald=s motion for enforcement.
Also on August 27, 2010 the trial court signed an ―Order on Motion for
Enforcement/Clarification of Prior Order‖ setting forth, with some modifications,
its prior April 30, 2009 oral pronouncement.
On September 30, 2010, the trial court signed the AOrder of Enforcement
by Contempt and Suspension of Commitment Nunc Pro Tunc@ that Gina now
challenges.2 That order provides:
The Court finds that Respondent [Gina] is guilty of separate
violations of the Order Modifying Prior Order, signed November 15,
2001 in Cause No. 2000-60475-393, styled AIn the Interest of
[P.W.W.B.], a Child,@ in 393rd of Denton County that appears in the
minutes of this Court and states in relevant part on page 3, as
follows:
AIT IS ORDERED that, at all times, [Ronald] and [Gina],
as parent joint managing conservators, shall each have
the following duties:
1. the duty to inform the other the other [sic] parent
in a timely manner of significant information
concerning the health, education, and welfare of
the child.@
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The trial court had previously signed a September 8, 2010 ―Order of
Enforcement by Contempt and Suspension of Commitment‖ and a September
27, 2010 AOrder of Enforcement by Contempt and Suspension of Commitment
Nunc Pro Tunc.@
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The Court also finds that Respondent [Gina] is guilty of
separate violations of the order made by this Court on April 30,
2009. This Court made the following order in open Court in the
presence of both the Movant [Ronald] and Respondent [Gina] and
their counsel:
AAny time either one of you (referring to Movant and
Respondent) take this person—this kid to see a doctor,
within 72 hours—you have the independent right and
I=m not changing that. But within 72 hours you are to
send an e-mail to the other parent that says you took
the kid to the doctor and you are to describe what the
doctor said. . . . So in writing, 72 hours, by email.@
As a result of Gina=s alleged violations of the November 15, 2001 order and the
April 30, 2009 oral pronouncement, the trial court found Gina in contempt,
Aassessed@ attorney=s fees of $5,000 against her, and ordered her punished by
confinement ―for a period of 180 days for each separate violation.‖ The trial court
ordered Gina=s commitment suspended Aprovided that [Gina] timely complies
with the following terms and conditions:@
1. IT IS ORDERED that Respondent [Gina] pay $5,000,
attorneys= fees and costs, by cash, cashier=s check, or money order
to Koons, Fuller, Vanden Eykel, and Robertson, P.C., at 2311 Cedar
Springs, Suite 300, Dallas, Texas, 75201, by September 24, 2010 at
4:00 p.m.
2. IT IS ORDERED that should Respondent [Gina] be held in
contempt for violation of any duty to keep Petitioner informed of all
educational, medical, psychological or therapeutic information as set
forth in the other orders of this Court before the child=s 18th birthday
or fail to pay the attorneys= fees and costs as ordered above, the
suspension of commitment shall be lifted and Respondent [Gina]
shall be committed to the Denton County Jail for the period of
confinement ordered above.
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III. THE CONTEMPT ORDER IS VOID
The trial court’s order holding Gina in contempt is based on her alleged
violations of the November 15, 2001 order and of the April 30, 2009 oral
pronouncement. As discussed below, the November 15, 2001 order is not
specific enough to be enforceable by contempt. And the contemptuous acts that
Ronald alleged, and that the trial court found Gina had committed, occurred from
May 2008 through April 2009—prior to the trial court’s April 30, 2009 oral
pronouncement; so the contemptuous acts alleged by Ronald and found by the
trial court do not violate the trial court’s not-yet-existing April 30, 2009 oral
pronouncement. Thus, as discussed in more detail below, the September 30,
2010 AOrder of Enforcement by Contempt and Suspension of Commitment Nunc
Pro Tunc‖ is void and will not support imposition of a fine, attorney’s fees, or
confinement.
A. November 15, 2001 Order Not Enforceable by Contempt
To be enforceable by contempt, a judgment or order must set out the
terms for compliance in clear and unambiguous terms. Ex parte Brister, 801
S.W.2d 833, 834 (Tex. 1990) (orig. proceeding). The order underlying a
contempt judgment must set forth the terms of compliance in clear, specific, and
unambiguous terms so that the person charged with obeying the order will readily
know exactly what duties and obligations are imposed upon her. Ex parte
Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). The judgment
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or order must also clearly order the party to perform the required acts. Ex parte
Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding). The question of
whether an order is enforceable by contempt depends on whether the order is
definite, certain, and not susceptible to different meanings or constructions. Ex
parte Kraus, 863 S.W.2d 104, 106 (Tex. App.—Corpus Christi 1993, orig.
proceeding). The focus is on the wording of the judgment or order itself. Ex
parte Reese, 701 S.W.2d 840, 841 (Tex. 1986) (orig. proceeding). If the court’s
order requires inferences or conclusions about which reasonable persons might
differ, it is insufficient to support a judgment of contempt. Chambers, 898 S.W.2d
at 260.
The November 15, 2001 AOrder Modifying Prior Order@ that imposed on
both Gina and Ronald Athe duty to inform the other parent in a timely manner of
significant information concerning the health, education, and welfare of the child‖
does not order or command Gina or Ronald to perform any act. It does not
require either Gina or Ronald to notify the other of a doctor’s appointment. It
does not impose any time parameter for either Gina or Ronald to provide
information to the other—only ―a timely manner.‖ It does not set forth what
information is to be provided—only ―significant information.‖ As a matter of law,
the provision of the November 15, 2001 order imposing on Gina Athe duty to
inform the other parent in a timely manner of significant information concerning
the health, education, and welfare of the child‖ is not sufficiently specific to be
enforced by contempt. See, e.g., Brister, 801 S.W.2d at 835 (holding ―vague and
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cryptic‖ visitation provisions in decree not enforceable by contempt); Reese, 701
S.W.2d at 841–42 (holding agreed judgment requiring company to ―take back‖
water system and to ―begin to restore it to proper condition‖ lacked sufficient
specificity to be enforceable by contempt); In re Davis, 305 S.W.3d 326, 331
(Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (holding order’s
provision requiring mother to call child’s primary care physician ―in the event that
a child appears to be ill upon awakening on a regularly scheduled school day‖
lacked sufficient specificity to be enforceable by contempt); In re Johnson, 996
S.W.2d 430, 435–36 (Tex. App.—Beaumont 1999, orig. proceeding) (holding
order that required contemnor to produce documents but that did not specify the
date on which the documents were to be produced was unenforceable by
contempt); Kraus, 863 S.W.2d at 107 (holding order requiring alleged contemnor
to ―conduct all acts necessary to secure possession of the child‖ and to ―assist
with the immediate return of the child to the Court‖ was vague, ambiguous, and
not enforceable by contempt).
B. Alleged Contemptuous Acts Occurred Prior to April 30, 2009
Oral Pronouncement; Contempt Not Available
Ronald alleged, and the trial court found, that Gina had violated both the
November 15, 2001 order and the April 30, 2009 oral pronouncement by taking
P.W.W.B. for therapy and counseling every two weeks from May 2008 through
April 2009 without notifying Ronald. But these allegedly contemptuous acts—
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taking place between May 2008 and April 2009—occurred prior to the trial court’s
April 30, 2009 oral pronouncement that Gina allegedly violated.
An alleged contemnor cannot be held in constructive contempt of court for
actions taken before the court reduces its order to writing. Ex parte Guetersloh,
935 S.W.2d 110, 111 (Tex. 1996) (orig. proceeding) (holding alleged contemnor
could not be held in contempt for violation occurring between oral order and
reduction of oral order to written order); Chambers, 898 S.W.2d at 262 (same);
Ex parte Price, 741 S.W.2d 366, 367–68 (Tex. 1987) (orig. proceeding) (same);
Ex parte Sellers, 982 S.W.2d 85, 87 (Tex. App.—Houston [1st Dist.] 1998, orig.
proceeding) (same).
Because the trial court’s April 30, 2009 oral pronouncement had not
occurred—that is, it did not exist—when Gina allegedly violated it by taking
P.W.W.B. for therapy and counseling every two weeks from May 2008 through
April 2009 without notifying Ronald, Gina may not be held in contempt for
violating the not-yet-in-existence April 30, 2009 oral pronouncement of the trial
court. See Guetersloh, 935 S.W.2d at 111; Chambers, 898 S.W.2d at 262; Price,
741 S.W.2d at 367–68; In re Sellers, 982 S.W.2d at 87.
C. Gina is Entitled to Relief
Ronald argues in his response that Gina is not entitled to habeas relief
because she has not yet been confined. In her reply, Gina argues that this court
possesses jurisdiction over the trial court’s September 30, 2010 order, if not via a
petition for writ of habeas corpus, then via a petition for writ of mandamus.
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Generally, contempt orders that do not involve confinement cannot be
reviewed by writ of habeas corpus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999)
(orig. proceeding).3 A contempt judgment may be attacked by a petition for writ
of habeas corpus when the contemnor is confined or by a petition for writ of
mandamus if the contemnor is not confined. In re Office of Attorney Gen. of
Tex., 215 S.W.3d 913, 916 (Tex. App.—Fort Worth 2007, orig. proceeding).
Here, Gina was found in contempt and ordered to spend 180 days in jail
for each violation; her commitment to jail was ordered suspended so long as she
complied with certain conditions—payment of attorney’s fees and compliance
with her ―duty to keep Petitioner informed of all educational, medical,
psychological or therapeutic information as set forth in the other orders of this
Court before the child=s 18th birthday.‖ The contempt order simply orders Gina to
pay attorney’s fees and to do what she is already required to do—comply with
orders of the trial court. Gina is thus not confined pursuant to, or restrained by,
the September 30, 2010 contempt order. See, e.g., Ex parte Hughey, 932
S.W.2d 308, 310–11 (Tex. App.—Tyler 1996, orig. proceeding); Ex parte Sealy,
3
Exceptions exist to this general rule, typically when the contempt order
places some other type of restraint on the relator’s liberty. See, e.g., Brister, 801
S.W.2d at 835 (holding relator entitled to habeas relief when she was ordered to
submit to house arrest as condition of suspension of commitment); Ex parte
Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (explaining that
relator was under ―restraint‖ although out on bond); In re Ragland, 973 S.W.2d
769, 771 (Tex. App.—El Paso 2001, orig. proceeding) (holding habeas relief
appropriate when relator restrained by requirement that he perform community
service every week for a year).
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870 S.W.2d 663, 665–66 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding).
Because Gina is not confined pursuant to, or restrained by, the September 30,
2010 contempt order, mandamus, not habeas, is the appropriate remedy for the
trial court’s void September 30, 2010 AOrder of Enforcement by Contempt and
Suspension of Commitment Nunc Pro Tunc.‖
In the interests of justice and looking to the substance of Gina’s petition,
rather than its caption, we construe her petition for writ of habeas corpus as a
petition for writ of mandamus. See Surgitek, Bristol-Myers Corp. v. Abel, 997
S.W.2d 598, 601 (Tex. 1999) (instructing us to look to the substance of a
pleading rather than its caption or format to determine its nature); see also In re
Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding) (noting, in granting
habeas corpus, that court of appeals had treated petition for writ of habeas
corpus as petition for writ of mandamus); In re Smith, 310 S.W.3d 908, 909 (Tex.
App.—Eastland 2010, orig. proceeding) (granting mandamus relief based on
petition for writ of habeas corpus alternatively seeking mandamus relief); Motor
Veh. Bd. v. El Paso Indep. Auto Dealers Ass’n, 1 S.W.3d 108, 111 (Tex. 1999)
(recognizing policy of construing rules of appellate procedure liberally so that
decisions turn on substance rather than procedural technicality); Ex parte
Casillas, 25 S.W.3d 296, 298 n.1 (Tex. App.—San Antonio 2000, orig.
proceeding) (construing ―petition for writ of habeas corpus and/or writ of
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mandamus‖ as petition for writ of habeas corpus because outstanding capias for
relator’s arrest existed).4
For the reasons set forth above, the September 30, 2010 contempt order is
void. Gina has no adequate remedy at law to obtain relief from this contempt
order because a contempt order is not appealable. See Office of Attorney Gen.
of Tex., 215 S.W.3d at 916. Because the September 30, 2010 contempt order is
void and because Gina has no adequate remedy at law, we will conditionally
grant a writ of mandamus directing the trial court to set aside and vacate the
September 30, 2010 AOrder of Enforcement by Contempt and Suspension of
Commitment Nunc Pro Tunc.‖ See Rosser v. Squier, 902 S.W.2d 962, 962 (Tex.
1995) (granting mandamus relief from void portion of contempt judgment); Sealy,
870 S.W.2d at 666 (same).
IV. CONCLUSION
We conditionally grant a writ of mandamus and order the trial court to
immediately set aside its September 30, 2010 AOrder of Enforcement by
Contempt and Suspension of Commitment Nunc Pro Tunc.‖ The writ will issue
only if the trial court fails to comply.
SUE WALKER
4
See also In re Clark, No. 10-03-00037-CV, 2004 WL 1632768, at *2–3
(Tex. App.—Waco July 21, 2004, orig. proceeding) (mem. op.) (analyzing cases
determining whether habeas corpus or mandamus is the appropriate remedy and
construing relator’s mandamus petition as petition for writ of habeas corpus).
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JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DELIVERED: November 17, 2010
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