                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-18-00253-CV
                              _________________


                        IN RE KRISTEN ANN MILLER

________________________________________________________________________

                              Original Proceeding
              418th District Court of Montgomery County, Texas
                       Trial Cause No. 16-03-03293-CV
________________________________________________________________________

                           MEMORANDUM OPINION

      In this original mandamus proceeding, the Relator (Kristen Ann Miller)

argues that an associate family law judge abused her discretion by holding Kristen

in contempt, sentencing her to one year in jail, and then, rather than requiring her to

serve the sentence, placing her on community supervision. See Tex. Gov’t Code

Ann. § 22.221(b)(3) (West Supp. 2017) (authorizing appeals courts to issue writs of

mandamus against associate judges of a district or county court that are appointed

under the Family Code); see also Tex. Fam. Code Ann. § 157.165 (West 2014)

(allowing judges in family law cases to probate orders of contempt and place

individuals held in contempt on community supervision); Tex. R. App. P. 52
                                          1
(procedure for filing original proceedings in appellate courts). According to Kristen,

the trial court abused its discretion:

   • by finding that she did not surrender the children to the Real Party in Interest,
     Scott Timothy Miller, and by holding her in contempt for failing to surrender
     all of her children to Scott on four occasions when the order allowed Scott to
     gain possession of them;

   • by finding that Kristen willfully failed to surrender the children to Scott and
     holding her in contempt for failing to have all of the children at her residence
     on one of the days that the order allowed Scott to gain possession of them;
     and

   • by assessing a punishment exceeding the infractions that the trial court found
     Kristen committed by violating the trial court’s orders governing Kristen’s
     and Scott’s rights to possess their children.

                                         Background

      Scott and Kristen, who have four children, divorced in 2017. Under the

possessory order accompanying the final decree, Kristen had to surrender the

children to Scott during his possessory periods at her residence. In March 2018, the

trial court modified the periods that are relevant to Scott’s possession in several

ways. Relevant to the circumstances of this original proceeding, the modified order

required Kristen to surrender the children to Scott at five o’clock p.m. on the

weekends that Scott had the right to have the children in his possession, and at five

o’clock p.m. every Thursday during the year. 1 Additionally, the modified order


      1
       The appendix to Kristen’s petition for mandamus includes the agreed
temporary possession order, signed in November 2016 before Scott and Kristen
                                             2
states that the requirements not changed in the modified order are to continue in

effect. Thus, the modified order also required Kristen (1) to surrender the children

to Scott at her residence, (2) to surrender the children to Scott if a child’s birthday

fell during a period in which Kristen had them in her possession beginning at six

o’clock p.m., and (3) to surrender the children to Scott on Wednesday at two o’clock

p.m. in even-numbered years when the children were on spring break.

      In March 2018, Scott moved to enforce the modified order, asking that the

trial court hold Kristen in criminal and civil contempt because she failed to surrender

three of the children to him on five separate occasions. Scott alleged, and the trial

court found, that on five occasions in March 2018—March 8, March 14, March 22,

March 23, and March 26—Kristen had violated the trial court’s orders that govern

her obligation to surrender the children to Scott. The trial court sentenced Kristen to

serve ninety days in jail for each of the violations, and to serve the sentences

concurrently. Then, the trial court suspended Kristen’s sentences and placed Kristen


divorced. However, the documents Kristen included in her appendix do not include
the trial court’s March 2018 temporary order, and in some situations the March 2018
order slightly changed the hour that Kristen was to surrender the children to Scott.
In any event, Scott’s motion to enforce and the trial court’s order finding Kristen in
contempt reveal the date and hour the order required Kristen to surrender the children
to Scott, and Kristen did not claim in the hearing and has not argued in this original
proceeding that Scott’s motion failed accurately to describe the relevant hour that
the trial court’s orders required Kristen to surrender the children to Scott. Thus, we
will assume that the March 2018 order required Kristen to surrender the children on
the hour as reflected by that order.
                                          3
on community supervision for one year if Kristen “surrender[s] the children to

[Scott] pursuant to all Court Orders[.]”

                     Mandamus Review of Contempt Judgment

       In this original proceeding, Kristen challenges the evidence supporting the

trial court’s finding that she violated the requirements in the relevant orders that she

surrender the children to Scott. The term surrender is not defined in either the final

decree or in the agreed temporary order that modified the decree.

      “To be entitled to mandamus relief, a relator must demonstrate (1) the trial

court clearly abused its discretion, and (2) the relator has no adequate remedy by

appeal.” In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial

court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law or if it fails to analyze the law correctly

or apply the law correctly to the facts. In re Cerberus Capital Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). To determine whether a party has

an adequate remedy by appeal, the appellate court asks whether “any benefits to

mandamus review are outweighed by the detriments.” In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

      Mandamus is available to challenge an order of contempt not involving

confinement. In re Reece, 341 S.W.3d at 370. Kristen seeks mandamus relief

because she is neither confined nor currently under threat of confinement. “A
                                            4
contempt order is void if it is beyond the power of the court or violates due process.”

In re Office of Attorney Gen., 422 S.W.3d 623, 628 (Tex. 2013) (orig. proceeding).

“If the trial court’s contempt order in this case is not void, there was no abuse of

discretion.” Id.

      “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

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). “The involuntary inability to

comply with an order is a valid defense to criminal contempt, for one’s

noncompliance cannot have been willful if the failure to comply was involuntary.”

Id. at 261.

      As the party who filed this proceeding, Kristen must establish that her

noncompliance with the trial court’s orders was not willful or that she was unable to

comply. See id. We do not weigh the evidence in reviewing the trial court’s ruling;

instead, we determine only if there is no evidence to legitimize the trial court’s

finding of contempt. Id. at 261-62.

                    No Evidence to Support Contempt Findings

      Kristen raises two no evidence claims in her petition seeking mandamus relief.

In her first issue, Kristen contends that the trial court had no evidence before it

supporting its rulings holding her in contempt for failing to surrender the children
                                          5
at her residence on March 8, March 14, March 22, and March 23. In her second

issue, Kristen argues that no evidence supports the trial court’s ruling holding her in

contempt even though she does not dispute that her two youngest children were not

at her residence on March 26 when Scott arrived to pick them up.

      Scott and Kristen were the only witnesses who testified in the contempt

hearing. The facts involving Kristen’s conduct in surrendering the children to Scott

on the dates at issue are undisputed. In the hearing, the testimony shows that Scott

appeared at Kristen’s residence on the four dates addressed in Kristen’s first issue.

Scott and Kristen agreed that during each of these occasions, Kristen put the children

outside the front door and locked it. Yet on each of these four occasions, only the

oldest child complied with the demand Scott made of his children directing them to

get into his car. Scott’s three youngest children refused his demand, and they walked

behind the house and he left. Scott testified that, to his knowledge, Kristen never

told the children they did not have to go with him.

      Kristen testified that she had encouraged the children to go with Scott and that

she had not encouraged them to refuse his requests. She explained that on the first

two occasions in March that were the subject of the motion, she sent a text message

to Scott after he left without taking the three younger children, asking if he intended

to return for them, but that he did not reply.


                                           6
      Based on the evidence admitted in the hearing, there is no evidence supporting

the trial court’s ruling that Kristen failed to surrender the children to Scott on March

8, March 14, March 22, or March 23. Kristen left them outside the house, and by

doing so, she subjected the children to Scott’s authority over them. Nothing in the

record shows that Kristen encouraged the children not to go with Scott. Because no

evidence supports the trial court’s finding that Kristen willfully failed to surrender

the children to Scott, the trial court’s order holding her in contempt based on her

alleged failure to surrender the children to Scott on March 8, March 14, March 22,

and March 23 is void. See Chambers, 898 S.W.2d at 259-60. We sustain issue one.

      In issue two, Kristen argues that no evidence supports the trial court’s finding

that she willfully failed to surrender the children to Scott on March 26. The evidence

in the hearing showed that on March 26 when Scott arrived at Kristen’s residence,

Scott’s oldest daughter and oldest son were inside but that his youngest daughter and

youngest son were at soccer practice. Scott agreed in the hearing that he knew there

was a soccer practice that day, and Kristen testified that based on past practices, she

had tried to resolve scheduling conflicts with Scott by contacting him through text

messages or with emails. According to Kristen, she knew that the practice conflicted

with the requirement that she surrender the children at her residence, and she testified

that she sent the information to Scott as soon as she could, but she did not testify that


                                           7
he contacted her or agreed to informally alter the order’s requirements after she

forwarded the information to him.

      It was undisputed that Scott’s two youngest children were not at Kristen’s

residence at six o’clock p.m. on March 26 when Scott arrived to pick them up. It is

also undisputed that Kristen never obtained Scott’s agreement allowing her to

deviate from the letter of requirement in the court’s orders requiring Kristen to

surrender the children at her residence. Thus, we conclude that the record contains

evidence showing that Kristen violated the letter of the trial court’s order by failing

to have the two younger children at her residence, where the relevant orders

contemplated the change in possession would occur.

      Kristen argues there is no evidence of willful noncompliance because when

she allowed the two youngest children to go to soccer practice, she relied on a past

practice where Scott agreed on one prior occasion to allow the children to attend a

soccer practice even though the trial court’s possession orders required Kristen to

have them at her residence when he came to pick them up. Even so,

“[n]oncompliance with an unambiguous order of which one has notice will

ordinarily raise an inference that the noncompliance was willful.” Id. at 261. Under

the circumstances here, the trial court could reasonably find that Kristen willfully

allowed the two children to attend a soccer practice even though she knew that Scott

had not agreed to alter the express requirements of the trial court’s orders as to the
                                          8
change in possession scheduled for March 26. Given the limited scope of our review

of a contempt order, and based on the evidence the trial court considered, we hold

that it acted reasonably by holding Kristen in contempt because she violated the

court’s order by failing to have her two youngest children at her residence on March

26.

      Although we might speculate about whether the trial court would have held

Kristen in contempt had the March 26 violation been the sole violation at issue in

this proceeding, we cannot do so in this case because the trial court’s order of

contempt lists each violation and punishment separately. Under such circumstances,

the invalid portions of the trial court’s order does not mean that all of the rulings in

the order are void. See Ex parte Linder, 783 S.W.2d 754, 758 (Tex. App.—Dallas

1990, orig. proceeding). Based on Kristen’s conduct on March 26, we conclude that

the evidence supports the single ninety-day sentence. See generally Tex. Fam. Code

Ann. § 157.165. We overrule issue two.

                                 Excessive Sentence

      In issue three, Kristen argues that the punishment the trial court assessed

exceeds the infraction she committed. But Kristen did not object to her sentence on

that basis when the trial court pronounced sentence. Kristen also cites no caselaw or

authorities to support her argument that the punishment imposed on her for her

conduct was excessive.
                                           9
      The legislature has authorized trial courts to sentence individuals to jail for a

period of six months upon a finding of contempt. See Tex. Gov’t Code Ann. §

21.002(b) (West 2004). So, Kristen’s sentence of three months in the county jail is

well within the statutory range of punishment that is permissible by statute in cases

involving contempt. Id. Trial courts are also authorized to place individuals found

guilty of contempt on community supervision and to suspend the commitment for

violating the terms of an order rendered under Title 5 of the Family Code, which

includes the types of orders at issue here. See Tex. Fam. Code Ann. § 157.165

(authorizing trial courts to probate contempt orders); § 153.255 (West 2014)

(showing that agreed possession orders are under Title 5).

      Kristen has not shown in this proceeding that the trial court abused its

discretion by imposing a ninety-day jail sentence, suspending the sentence, and

placing her on community supervision for a period of one year. We overrule

Kristen’s third issue.

                                     Conclusion

      We conclude that the trial court abused its discretion by finding that Kristen

violated the trial court’s possession orders by failing to surrender the children that

are the subject of the orders on March 8, March 14, March 22, and March 23. We

also conclude that Kristen lacks an adequate remedy through an appeal to correct the

rulings finding her in contempt. For these reasons, we conditionally grant mandamus
                                         10
relief on those rulings, and we remand the case to the trial court with instructions

that it vacate that part of its order. We are confident that the trial court will comply

with the Court’s ruling and vacate that portion of its order finding Kristen in

contempt for her conduct on March 8, March 14, March 22, and March 23. The writ

will issue only if the trial court fails to comply. All other relief that Kristen requested

in her petition is denied.

       PETITION CONDITIONALLY GRANTED IN PART.



                                                        _________________________
                                                             HOLLIS HORTON
                                                                  Justice

Submitted on July 9, 2018
Opinion Delivered August 30, 2018

Before Kreger, Horton and Johnson, JJ.




                                            11
                 CONCURRING AND DISSENTING OPINION

      I fully agree with the majority opinion as to its decision to vacate the contempt

findings pertaining to March 8, 14, 22, and 23.

      Nevertheless, I respectfully dissent because I would also vacate the trial

court’s contempt finding relating to the alleged non-compliance on March 26.

Although Kristen’s two youngest children were not at her residence on March 26

when Scott arrived to pick them up, as the majority discusses, the mandamus

evidence indicates that the March 26 soccer practice was rescheduled unexpectedly

by the coaches and not by Kristen because the lights were not working at the soccer

field. The evidence also established that Scott and Kristen had resolved previous

scheduling conflicts through text or email messages, that Kristen texted information

to Scott about the March 26 soccer practice as soon as she could, and that Scott was

informed about the last-minute soccer practice. Although Kristen did not present a

response to her text wherein Scott expressly agreed to “informally alter the order’s

requirements,” Kristen established that her noncompliance was not willful.

Considering the facts in our record that relate to this alleged violation, I conclude

there is no evidence to legitimize the trial court’s finding of contempt. Ex parte

Chambers, 898 S.W.2d 257, 261-62 (Tex. 1995) (orig. proceeding).




                                          1
                                        _________________________
                                           LEANNE JOHNSON
                                                 Justice



Concurrence and Dissent Delivered
August 30, 2018




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