Petition for Writ of Mandamus Denied and Memorandum Opinion filed February
2, 2012.




                                         In The


                      Fourteenth Court of Appeals

                                   NO. 14-11-01080-CV


                     IN RE CAROLINA I. ZEVALLOS, Relator

                             ORIGINAL PROCEEDING
                               WRIT OF MANDAMUS
                                 311th District Court
                                 Harris County, Texas
                           Trial Court Case No. 2002-53178

                        MEMORANDUM OPINION

      On December 15, 2011, relator Carolina I. Zevallos filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52.
In the petition, relator asks this court to compel the Honorable Denise Pratt, presiding
judge of the 311th District Court of Harris County to set aside the Order of Enforcement
of Possession by Contempt and Suspension of Commitment.

                                        I. Background

      The parties were divorced in 2003, and were appointed joint managing
conservators of their only child. The father, real party in interest Angel Gomez, filed a
motion for enforcement of the possession order in which he alleged the mother, relator:
       1.      Failed to provide appropriate written authorization to allow the child to
       travel with the father,

       2.      Twice, failed to surrender the child’s passport in order for the child to
       travel with the father beyond the territorial limits of the United States,

       3.     Twice failed to timely surrender the child for a 30-day period of
       extended summer possession,

       4.     Nine times, failed to timely surrender the child for the father’s weekend
       period of possession, and

       5.    Seven times, failed to timely surrender the child for the father’s
       Thursday period of possession

The father sought to have relator held in contempt, and sought ―make-up‖ periods of
possession to compensate for the periods of possession he had been denied.

       The trial court held a hearing over several days and concluded that relator had
violated nine counts of the terms of the possession order including denying possession
and failing to give appropriate written authorization to allow the child to travel out of the
country with the father. The court further found that relator failed to surrender the child’s
passport for international travel with her father.

       In an order signed December 1, 2011, the court found relator in criminal contempt
and sentenced her to 180 days in jail for each count with the periods of confinement to
run consecutively. The court suspended the commitment and placed relator on probation
until such time as she purged herself of contempt by complying with the terms of the
enforcement order. One of the conditions of probation requires relator to allow the father
to have possession of the child over the Christmas holiday for 2011.

       On January 6, 2012, the trial court amended the order of enforcement to reflect
that the 180-day periods of confinement are to run concurrently.

       Relator challenges the ―Order of Enforcement of Possession Order by Contempt
and Suspension of Commitment‖ on the grounds that the trial court abused its discretion

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in (1) finding relator in criminal contempt on a ―serious‖ charge without holding a jury
trial or admonishing her as to her right to a jury trial; (2) granting the father additional
periods of possession that were not of the same type and duration of the possession or
access that was denied, and (3) holding relator in contempt of an order that was vague
and unclear.

                                   II. Mandamus Standard

       Courts will issue mandamus to correct a clear abuse of discretion or the violation
of a duty imposed by law when there is no other adequate remedy available by appeal. In
re Prudential Ins. Co. of America, 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Contempt orders are not
reviewable by appeal; therefore, if a trial court abuses its discretion by holding someone
in contempt, there is no adequate remedy by appeal, and the second prong of mandamus
review is satisfied. In re Long, 984 S.W.2d 623, 625 (Tex. 1999).

                                          III. Analysis

       A. Finding of criminal contempt

       Relator argues first that she was charged with a ―serious offense,‖ and was
therefore entitled to a trial by jury. An absolute right to trial by jury in contempt
proceedings does not exist. See Muniz v. Hoffman, 422 U.S. 454, 475–77 (1975); Ex
parte Griffin, 682 S.W.2d 261, 262 (Tex. 1984) (orig. proceeding).              An alleged
contemnor has the right to a jury trial in criminal contempt cases where the punishment
assessed is ―serious.‖ See Muniz, 422 U.S. at 476–77; Ex parte Werblud, 536 S.W.2d
542, 546 (Tex. 1976).

       Section 21.002(b) of the Government Code provides that punishment for a single
act of contempt of court is a fine of not more than $500 or confinement in the county jail
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for not more than six months or both. Tex. Gov’t Code Ann. § 21.002(b). Punishment
imposed within the parameters of section 21.002(b) is generally classified as ―petty.‖ See
Werblud, 536 S.W.2d at 546. By contrast, if a sentence exceeding the limits of section
21.002(b) is imposed, the proceeding is generally classified as ―serious.‖ See Ex parte
Sproull, 815 S.W.2d 250, 250 (Tex. 1991) (orig. proceeding). Where the contemnor is
sentenced to no more than six months confinement for each of several acts, the
punishment is nonetheless serious if the sentences must be served consecutively so as to
add up to more than six months’ confinement. In re Hammond, 155 S.W.3d 222, 226
(Tex. App.—El Paso 2004, orig. proceeding).

       In addressing whether trial by jury was required, the court looks at the actual
punishment, not the possible punishment. See In re Radmacher, No. 14-08-00346-CV;
2008 WL 2261278 at *2 (Tex. App.—Houston [14th Dist.] May 23, 2008, orig.
proceeding) (mem. op.) (five 180-day sentences ordered to be served concurrently); In re
Bourg, No. 01-07-00623-CV, 2007 WL 2446844, at *3 (Tex. App.—Houston [1st Dist.]
2007, orig. proceeding) (mem. op.) (same); Hammond, 155 S.W.3d at 226 (examining the
length of confinement and whether the sentences are to be served concurrently or
consecutively); In re Brown, 114 S.W.3d 7, 12 (Tex. App.—Tyler 2003, orig.
proceeding) (―Werblud states clearly the applicable dividing line between petty and
serious contempt ... the punishment imposed determines whether the contempt is petty or
serious, not the punishment possible.‖); Ex parte Casillas, 25 S.W.3d 296, 299 (Tex.
App.—San Antonio 2000, orig. proceeding) (looking at the ―punishment assessed,‖ and
what was ―imposed‖); In re Levingson, 996 S.W.2d 936, 938 (Tex. App.—Houston [14th
Dist.] 1999, orig. proceeding) (granting habeas relief because the contemnor was
sentenced to jail for a period of almost nine months).

       Although the trial court originally sentenced relator to nine 180-day sentences to
be served consecutively, the trial court has now amended its order to reflect that the 180-
day sentences are to be served concurrently.        If relator violates the conditions of
                                             4
probation, her confinement will not exceed 180 days. Relator’s punishment, therefore, is
not classified as ―serious‖, and relator was not entitled to a jury trial. See Werblud, 536
S.W.2d at 546. Relator’s first issue is overruled.

       B. Assessment of periods of possession that were not the same type and
duration of the possession or access that was denied.

       In her second issue, relator argues that the trial court violated section 157.168 of
the Texas Family Code by assessing an additional period of access or possession for the
father that is not ―of the same type and duration of the possession or access that was
denied.‖ For this proposition, relator cites Romero v. Zapien, No. 13-07-00758-CV; 2010
WL 2543897 (Tex. App.—Corpus Christi–Edinburg June 24, 2010, pet. denied) (mem.
op.) disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 78, n. 2 (Tex. 2011).

       Relator was found in contempt for failure to permit possession over several
weekend visits plus one month in the summer. As an additional period of access, the trial
court awarded the father possession over the 2011 Christmas holidays. Section 157.168
of the Family Code provides that a party may be awarded additional periods of access to
a child to compensate for the denial of court-ordered possession or access. Tex. Fam.
Code Ann. § 157.168(a). It is within the discretion of the trial court to determine whether
to grant such an award; however, if the trial court chooses to grant the award, the
additional periods of access or possession ―must be of the same type and duration of the
possession or access that was denied.‖ Id. § 157.168(a)(1).

       In Romero, the Corpus Christi Court of Appeals interpreted ―of the same type and
duration‖ to mean the same amount of time. 2010 WL 2543897 at *15. Relator seems to
argue that since she deprived the father of weekend and summer visitation, he should not
receive Christmas visitation as an additional period of access. The statute does not
require summer or weekend additional periods to be awarded for denial of summer or
weekend visitation. In fact, if anything, the father has received less make-up possession

                                             5
than he was denied. The trial court did not abuse its discretion in awarding an additional
two weeks to the father during the Christmas holiday as compensation for the denial of
several weekends plus one month in the summer. Relator’s second issue is overruled.

       C. Allegation that order is vague

       In her third issue, relator contends the trial court abused its discretion in holding
her in contempt on the basis of an allegedly vague order. Under this argument, relator
complains that the violations found in counts 1 and 9 were based on purportedly vague
portions of the underlying order. The trial court’s order stated:

       Count 1: May 23, 2009, CAROLINA I. ZEVALLOS failed to provide
       ANGEL J. GOMEZ with appropriate written authorization, within ten days
       after her receipt of written request, to allow the child to travel with ANGEL J.
       GOMEZ beyond the territorial limits of the United States.

       County 9: Saturday, June 4, 2011, at 6:00 P.M., CAROLINA I. ZEVALLOS
       failed to timely surrender the child’s passport to ANGEL J. GOMEZ in order
       for the child to travel with ANGEL J. GOMEZ beyond the territorial limits of
       the United States.

       Relator asserts the term ―appropriate written authorization‖ is void as vague and
ambiguous. Relator claims she could not readily know exactly what duties were imposed
on her. She also asserts the order to exchange passports was vague and ambiguous and
failed to notify her in clear terms ―what, where, when and how she must act to avoid
violation of the underlying order.‖

       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).              If the court’s order requires
inferences or conclusions about which reasonable persons might differ, it is insufficient
to support a judgment of contempt. Id. at 260. Only reasonable alternative constructions,
however, prevent enforcement of the order.          Id.   ―The order need not be full of
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superfluous terms and specifications adequate to counter any flight of fancy a contemnor
may imagine in order to declare it vague.‖ Id.

       In reference to international travel, the divorce decree required:

       Each party is ORDERED to provide the other party appropriate written
       authorization, within ten days after written request is received, as is necessary
       to allow the children to travel with the other party beyond the territorial limits
       of the United States. The parties are ORDERED to exchange passports as is
       necessary to allow such travel.

       During the enforcement hearing, relator was asked whether she failed to give the
father appropriate written authorization for international travel. She responded, ―I gave
him written authorization but not on the 23rd. I mailed it on the 18th of May.‖ She was
questioned about the written authorization as follows:

       Q. (by MR. PHILLIPS real party’s counsel) Real quickly, Mrs. Zevallos, I’m
       going to hand you what’s M-2. Is that the letter that you sent back to him?

       A. Yes.

       Q. Okay. And it says, if I may, it says you received it on May 13th of 2009; is
       that correct?

       A. Correct.

       Q. All right. So, you understood, and correct me if I’m wrong, but you
       understood that you had ten days to give him written authorization?

       A. Which I did.

       Q. And when did you — When do you claim you gave him written
       authorization?

       A. It was mailed out on the 18th.

       During her testimony, relator did not question what was expected of her with
regard to the definition of ―appropriate written authorization.‖ Her testimony reveals that
she knew what was expected of her, but that she disagreed about whether it was timely.

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       With regard to the exchange of passports, relator denied that she failed to tender
the passport on May 23, 2009. She admitted she failed to tender the child’s passport or
written authorization on June 4, 2011. Relator testified that she refused to turn over the
child’s passport because the father told conflicting stories as to where he was taking the
child. She did not testify that she did not understand ―what, where, when and how she
must act.‖

       We conclude the terms of which relator complains are not subject to reasonable
alternative constructions. Relator’s third issue is overruled.

       Relator has not established entitlement to the extraordinary relief of a writ of
mandamus. Accordingly, we deny relator’s petition for writ of mandamus and lift the
stay of the contempt order.

                                                  PER CURIAM



Panel consists of Chief Justice Hedges and Justices Frost and Christopher.




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