                                      NO. 12-11-00383-CV

                         IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

IN THE INTEREST OF                                     §            APPEAL FROM THE 321ST

B.J.H.-T.,                                            §             JUDICIAL DISTRICT COURT

A CHILD                                               §            SMITH COUNTY, TEXAS



                                      MEMORANDUM OPINION
        M.E.T., who is pro se, appeals from the trial court’s order enforcing child possession or
access by contempt and modifying the terms of a permanent injunction and child possession.
M.E.T. raises four issues on appeal. We dismiss for want of jurisdiction.


                                               BACKGROUND
        On November 9, 2009, L.H. filed her first motion for enforcement against M.E.T. for
violating a February 25, 2009 permanent injunction.1 She also filed several amended motions for
enforcement between November 2009 and August 2011. The trial court conducted a hearing on
L.H.’s live amended motion for enforcement on November 2, 2011, and held M.E.T. in contempt
for willfully failing to comply with several provisions of the permanent injunction. Additionally,
the court ordered that M.E.T. be fined $2,500, confined for three days, and required to pay court
costs and L.H.’s attorney’s fees for violating the court’s February 25, 2009 order.
        In his first three issues, M.E.T. challenges the trial court’s actions arising from the
contempt proceeding.2 In his fourth issue, M.E.T. contends that he was denied a fair, neutral,
and impartial judge because his motion to recuse was denied.


        1
           The permanent injunction, which is the subject of this enforcement proceeding, was affirmed in In re
B.J.H.-T., No. 12-09-00157-CV, 2011 WL 721511 (Tex. App.—Tyler Mar. 2, 2011, pet. denied) (mem. op.).
                                                  JURISDICTION
        Appellate courts do not have jurisdiction to review contempt proceedings on direct
appeal. See Texas Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); In re
Rich, 993 S.W.2d 272, 274 (Tex. App.—San Antonio 1999, no pet.). Generally, a contempt
order is reviewable only by a petition for writ of habeas corpus (if the person in contempt is
confined) or a petition for writ of mandamus (if no confinement is involved). Hutchins v. State,
No. 12-09-00258-CV, 2010 WL 3249858, at *1 (Tex. App.—Tyler Aug. 18, 2010, no pet.)
(mem. op.). Some courts of appeals will consider rulings made simultaneously to a contempt
order that do not arise from the contempt action and consider only those portions of the order
relating to those rulings. See, e.g., In re Rich, 993 S.W.2d at 274. But the El Paso court of
appeals has held that it does not have jurisdiction of an appeal of a contempt order regardless of
whether the court made additional rulings not requested by the pleadings. See Smith v. Holder,
756 S.W.2d 9, 11 (Tex. App.—El Paso 1988, no pet.) (reasoning that a contemnor should not be
allowed to “pick and choose until [he] finds a way to file a direct appeal [because an appeal] still
represents a direct attack on a contempt order which should not be allowed”).
        The supreme court has suggested, however, that an appellate court may reform a
contempt order that goes beyond the pleadings. See Nunley, 647 S.W.2d at 952-53. In Nunley,
the trial court held a state agency in contempt and granted injunctive relief that was not requested
in either party’s pleadings. Id. The supreme court reformed the judgment by striking the portion
that granted injunctive relief reasoning that “[t]he trial court was without authority to grant such
relief.” Id. at 952.


        2
            M.E.T. frames his first three issues as follows:
                   1. Does TEX. FAM. CODE §§ 155.001-155.003 grant a court authority to modify
                   a prior final order in a suit affecting parent-child relation when the court’s
                   plenary power over the order has expired and no new pleadings, cast in terms of
                   the care, custody and control of a minor child, have been filed to initiate a new
                   suit affecting parent child relationship?
                   2. Did the trial court deny Respondent’s procedural Due Process rights and err
                   in issuing, sua sponte, an order modifying parent-child relationship finding that
                   the conditions of the child or a conservator have materially changed and that the
                   modification is in the best interest of the child, and granting sua sponte
                   permanent injunctive relief when there was neither [] legally nor factually
                   sufficient evidence to support judgment?
                   3. Did the court improperly sustain Movant’s objection to admittance of video
                   evidence of threat of retaliation by Movant’s witness [K.T.] against Respondent
                   when Respondent asserted that evidence would prove that witness had motive to
                   perjure testimony?


                                                           2
       Here, L.H. alleged in her motion for enforcement that M.E.T. had violated the restrictions
relating to B.J.H.-T.’s exchange and M.E.T.’s threatening behavior towards L.H. After hearing
the parties’ closing arguments, the trial court explained that the court’s permanent injunction was
an effort to “lower the conflict” between the parties. The court then ruled that M.E.T. violated
the injunction and announced his punishment. The court also imposed additional restrictions
relating to B.J.H.-T.’s exchange and prohibited M.E.T. from being within two miles of L.H.’s
residence or place of employment “because we have so much problems [sic] with visitation.”
       The trial court’s injunctive relief arose from the contempt proceeding, during which L.H.
presented testimony that, since the permanent injunction was originally issued, heightened
conflict had arisen between B.J.H.-T.’s parents during exchanges and during L.H.’s possession
of B.J.H.-T. Thus, the relief challenged by M.E.T. is not reviewable even under the rule set forth
in In re Rich. See In re Rich, 993 S.W.2d at 274 (considering rulings not arising from contempt
action). Furthermore, in suits affecting the parent-child relationship, when the best interest of the
child is always the overriding consideration, technical rules of pleading and practice are of little
importance, and fair notice is afforded when the pleadings generally invoke the court’s
jurisdiction over custody and control of the children. In re Macalik, 13 S.W.3d 43, 45 (Tex.
App.—Texarkana 1999, no pet.); MacCallum v. MacCallum, 801 S.W.2d 579, 586 (Tex.
App.—Corpus Christi 1990, writ denied) (“Pleadings are of little importance in child custody
cases and the trial court’s efforts to exercise broad, equitable powers in determining what will be
best for the future welfare of a child should be unhampered by narrow technical rulings.”).
Accordingly, we do not reform the contempt order because the trial court had the authority to
grant the injunctive relief to protect B.J.H.-T.’s best interest. See Nunley, 647 S.W.2d at 952; In
re Macalik, 13 S.W.3d at 45; MacCallum, 801 S.W.2d at 586; see also In re B.J.H.-T., No. 12-
09-00157-CV, 2011 WL 721511, at *1-2 (Tex. App.—Tyler Mar. 2, 2011, pet. denied) (mem.
op.). Therefore, M.E.T.’s first three issues must be dismissed for want of jurisdiction. See TEX.
R. APP. P. 42.3(a); Nunley, 647 S.W.2d at 952; Holder, 756 S.W.2d at 11.


                              ORDER DENYING MOTION TO RECUSE
       Prior to the contempt proceeding, M.E.T. filed a motion to recuse that was denied by an
assigned judge on September 9, 2011. M.E.T. contends that because his motion was denied, he
was deprived of a fair, neutral, and impartial judge.



                                                 3
         An order denying a motion to recuse may be reviewed only for abuse of discretion on
appeal from the final judgment. See TEX. R. CIV. P. 18a (j)(1)(A). A contempt order is not a
final judgment. In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 916 (Tex. App.—Fort
Worth 2007, no pet.). Because the contempt order is not a final judgment, M.E.T.’s fourth issue
must also be dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a).


                                                    DISPOSITION
         Because we have no jurisdiction to review contempt orders by direct appeal and no
jurisdiction to review a motion to recuse absent a final judgment, M.E.T.’s appeal is dismissed
for want of jurisdiction.


                                                                JAMES T. WORTHEN
                                                                  Chief Justice



Opinion delivered April 17, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                           APRIL 17, 2013


                                        NO. 12-11-00383-CV


                         IN THE INTEREST OF B.J.H.-T., A CHILD


                          Appeal from the 321st Judicial District Court
                         of Smith County, Texas. (Tr.Ct.No. 07-0994-D)

                      THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court is without jurisdiction of the
appeal, and that the appeal should be dismissed.
                      It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
                      James T. Worthen, Chief Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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