                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-20-00004-CV
                               __________________


                             IN RE NICOLA KLUGE

__________________________________________________________________

                         Original Proceeding
        County Court at Law No. 3 of Montgomery County, Texas
                   Trial Cause No. 04-09-07778-CV
__________________________________________________________________

                          MEMORANDUM OPINION

      In a suit affecting the parent-child relationship (SAPCR), the trial court found

Nicola Kluge in contempt and ordered that she be confined in jail for 130 days for

violating a SAPCR order which restricted the primary residence of the children to

Harris and Montgomery Counties, after Kluge rented an apartment in Bryan, Texas,

for a teen-aged son, M.K.J., who matriculated at Texas A & M University. Not long

after his sixteenth birthday, M.K.J. filed a petition for removal of disabilities of a

child and a Brazos County court emancipated him before his father, Vojin Jovanovic,


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filed the motion for enforcement that resulted in the judgment of contempt. In this

original proceeding in habeas corpus, Kluge argues the trial court’s judgment of

contempt is void because (1) the order she has been found to have violated does not

provide clear, specific, and unambiguous terms of compliance; (2) she was deprived

of her due process right to present an affirmative defense where the evidence is

insufficient with regard to a finding that she violated a reasonably specific order with

willful intent; and (3) the court lacked jurisdiction to sign a contempt order because

it no longer had jurisdiction over the subject matter of the suit. We conclude the trial

court had jurisdiction to enforce the SAPCR by contempt, but the underlying

SAPCR order made the basis of the contempt judgment failed to provide clear,

specific, and unambiguous terms of compliance and thus, is not enforceable by

contempt as it deprives the relator of liberty without due process of law.

Accordingly, we set aside the judgment of contempt and order Kluge’s release from

confinement.

      Kluge and Jovanovic have two children, born in April 2001 and September

2003. The younger of the two children is referred to in this opinion as M.K.J. The

trial court signed an order in a suit to modify the parent-child relationship on

December 20, 2011. In the 2011 SAPCR order, “child” for purposes of the

possession order “includes each child, whether one or more, who is a subject of this

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suit while that child is under the age of eighteen years and not otherwise

emancipated.” The 2011 SAPCR order gave Kluge the exclusive right to make

decisions about the child’s education after consulting with the other parent. The

order gave Kluge the exclusive right to designate each child’s primary residence

within Harris and Montgomery Counties. The order contains the following

geographical restriction:

             The Court finds that, in accordance with section 153.001 of the
      Texas Family Code, it is the public policy of Texas to assure that
      children will have frequent and continuing contact with parents who
      have shown the ability to act in the best interest of the child, to provide
      a safe, stable, and nonviolent environment for the child, and to
      encourage parents to share in the rights and duties of raising their child
      after the parents have separated or dissolved their marriage. IT IS
      ORDERED that the primary residence of the children shall be within
      Harris County, Texas and Montgomery County, Texas, and the parties
      shall not remove the children from Harris County, Texas or
      Montgomery County, Texas for the purpose of changing the primary
      residence of the children until modified by further order of the court of
      continuing jurisdiction or by written agreement signed by the parties
      and filed with the court.

      On April 27, 2018, the trial court signed a modification order that included

language addressing the situation of having a teen-aged college student. Like the

earlier order, the 2018 SAPCR order in part states that “[t]he periods of possession

ordered above apply to each child the subject of this suit while that child is under the

age of eighteen years and not otherwise emancipated.” The 2018 SAPCR order

modified Jovanovic’s periods of possession that begin and end on a student holiday
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“pursuant to the school district calendar where the child primarily resides or a teacher

in-service day that falls on a Friday during the regular school term pursuant to the

school district calendar where the child primarily resides[.]” [emphasis omitted]

Furthermore, the 2018 modification order provided for spring vacations based on

“the day the child’s college or university is dismissed” for the spring vacation. The

order provided for Christmas and Thanksgiving holidays unaffected by distance,

with the period of possession beginning “on the day the child’s college or university

is dismissed” for the vacation. [emphasis omitted] The order required that Kluge

surrender the child “at the college or university in which the child is enrolled.” The

order stated, “All other terms of the prior orders not specifically modified in this

order shall remain in full force and effect.”

      On November 25, 2019, Jovanovic filed a motion for enforcement that alleged

87 separate violations of the SAPCR orders. He alleged that Kluge failed to

surrender M.K.J. on ten dates from December 12, 2018, through July 9, 2019, took

the child from Jovanovic’s residence on a date of his possession in February 2019,

and violated the order by removing the child from Harris and Montgomery Counties

for the purpose of changing his primary residence on seventy-six dates from August

1, 2019, through October 14, 2019.



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      The trial court heard Jovanovic’s motion for enforcement on December 18,

2019. Much of the hearing focused on M.K.J. filing a petition for removal of

disabilities of a minor in a Brazos County district court on September 6, 2019. In his

Brazos County pleading, M.K.J. alleged that he is sixteen years of age and lives apart

from his parents in Bryan, Brazos County, Texas, as a third-year student at Texas A

& M University. Nicola signed a verification agreeing to the emancipation requested

in M.K.J.’s petition. The Brazos County district court heard the petition on October

10, 2019, and signed an order removing the minor’s disabilities on October 14, 2019.

On October 22, 2019, Jovanovic filed a motion for new trial and supporting affidavit

in which he claimed that he was a necessary party to the emancipation petition but

had not been served with citation, that M.K.J. was not and had never been a resident

of Brazos County, and that M.K.J. is not living apart from his parents and is not self-

supporting. There is no evidence in the habeas record that the Brazos County district

court granted a new trial.

      An apartment complex manager testified that Kluge leased an apartment for

M.K.J. in Bryan, Brazos County, Texas, in August 2019. M.K.J. signed a separate

lease after his disabilities were removed. M.K.J. testified that he occupied the

apartment beginning August 21, 2019, and Kluge drove him to Bryan when he

moved into the apartment to attend classes at Texas A & M University because at

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that time he could not legally drive. M.K.J. indicated he did not change his

permanent residence when he moved into the apartment, but he admitted that he

signed a petition that stated he resides in Brazos County.

      A habeas corpus proceeding is a collateral attack on a contempt order. Ex

parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). The relator

bears the burden of showing that the contempt order is void in that the order is

beyond the power of the court to enter it, or it deprives the relator of liberty without

due process of law. In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig.

proceeding). In a habeas corpus proceeding, the relator is entitled to relief if we

determine the trial court’s contempt finding is so completely without evidentiary

support as to deprive the relator of liberty without due process of law. In re Pruitt, 6

S.W.3d 363, 364 (Tex. App.—Beaumont 1999, orig. proceeding). Evidentiary

complaints are addressable in a habeas corpus proceeding if the trial court precluded

the relator from presenting evidence which, if credited, would disprove the

willfulness of the violation. In re Campbell, No. 01-17-00251-CV, 2017 WL

3598251, at *3 (Tex. App.—Houston [1st Dist.] Aug. 22, 2017, orig. proceeding)

(mem. op.).

      “A criminal contempt conviction for disobedience to a court order requires

proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation

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of the order; and (3) the willful intent to violate the order.” Ex parte Chambers, 898

S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). To be enforceable by contempt, the

underlying order 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. Id. at 260. The

existence of reasonable alternative constructions to the order will prevent

enforcement of the order through contempt. Id. Although the inability to comply

defense technically rebuts the willfulness element of contempt liability, the relator

bears the burden of conclusively establishing her inability to comply. Id. at 261–62.

      First, we address Kluge’s third issue, which claims the trial court lost

jurisdiction to enforce the SAPCR order by contempt because the SAPCR order

defined a child as a person not yet eighteen or otherwise emancipated. The court

retains jurisdiction to render a contempt order for failure to comply with a possession

order if the motion for enforcement is filed within six months of the date the child

becomes an adult. See Tex. Fam. Code Ann. § 157.004. Kluge argues section

157.004 does not apply because the controlling SAPCR order defines a child as a

person under the age of 18 and not otherwise emancipated, but the trial court’s

statutory authority to enforce its judgment extends to violations that occurred before

the trial court lost continuing jurisdiction if the motion for enforcement is filed not

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later than the sixth month after the date on which the right to possession terminates

under the SAPCR order. See id. § 157.004(2). We conclude the trial court had the

authority to hear Jovanovic’s timely-filed motion for enforcement. Issue three is

overruled.

       In her first issue, Kluge contends the trial court erred in issuing the judgment

of contempt because the underlying SAPCR order failed to spell out the details of

compliance in clear, specific, and unambiguous terms so that she would readily

know exactly what duties and obligations the SAPCR order imposed. See Ex parte

Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). In Slavin, the child

support order was reasonably subject to two constructions: one that required the

obligor to pay the same amount each month until his three children reached the age

of majority and one that allowed for a reduction in the amount of monthly support

as each child turned eighteen. Id. at 44. The order was not enforceable by contempt

because the order could not be reasonably understood when all the commands and

the provisions of the applicable statute were read together. Id. at 45.

      Although the trial court modified the SAPCR in anticipation of M.K.J.

entering college, the order places no limitation on establishing a residence other than

the child’s primary residence. The SAPCR order allowed Kluge to remove M.K.J.

from Montgomery County to Brazos County for the purpose of temporarily changing

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M.K.J.’s residence. The SAPCR order is susceptible to a construction where living

in an apartment separate from the family home is not a change in the “primary

residence” of a college student absent an intent to live there permanently. We

conclude that because the SAPCR order failed to spell out the details of compliance

in clear, specific, and unambiguous terms so that Kluge would readily know exactly

what duties and obligations the SAPCR order imposed with regard to M.K.J.’s

residence while pursuing his college education, the SAPCR order is not enforceable

by contempt and the judgment of contempt should be set aside. See Chambers, 898

S.W.2d at 259; Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (orig. proceeding)

(“A writ of habeas corpus will issue if the commitment order is void because it

deprives the relator of liberty without due process of law”). Issue one is sustained.

          Our resolution of this issue makes it unnecessary to address Kluge’s second

issue, in which she complains the trial court precluded her from presenting evidence

that would negate allegations that she violated the trial court’s order with purposeful

intent.

          We grant the petition for writ of habeas corpus, set aside the trial court’s order

of contempt, order that Nicola Kluge be discharged from custody under the order of

commitment issued on December 18, 2019, by the judge of the County Court at Law

Number 3 of Montgomery County, Texas in trial cause number 04-09-07778-CV,

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and order that Nicola Kluge be released from the bond posted to secure her

temporary release pursuant to this Court’s order of January 17, 2020.

      PETITION GRANTED.


                                                         PER CURIAM


Submitted on January 21, 2020
Opinion Delivered March 12, 2020

Before McKeithen, C.J., Kreger and Horton, JJ.




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