Texas Divorce Attorney Blog
When a parent in a Texas custody case fails to comply with a court order, the other parent may petition for enforcement of the court order. The parent seeking enforcement may pursue an order of contempt, which can result in six months’ jail time, a fine of $500 per violation, or both. A father recently appealed a contempt order against him, arguing in part that the trial court failed to inform him of his rights to an attorney and against self-incrimination.
Mother Files Enforcement Action Against Father
Several months after the divorce, each party filed an enforcement petition alleging the other violated the decree. The mother asked the court to hold the father in contempt, incarcerate him for up to 180 days, put him on community supervision for 10 years, order him to pay a $500 fine for each violation, and award her attorney’s fees. She alleged he failed to provide documents needed to file tax returns, failed to sign documents to transfer property, and repeatedly interfered with her possession of the child.
A flight delay had resulted in the mother losing two days of possession. The other incidents were related to a disagreement regarding the exchange of possession. Under the decree, the father was required to surrender the child to the mother at the daycare or school, in the parking lot of a specified grocery store if the daycare or school was closed. The decree further permitted each party to “designate any competent adult to pick up and return the child. . .” and required either the party or a designated adult to be present for the drop off.
The mother had sent a message telling the father to deliver the child to the daycare after his possession periods. She stated she was “designating them a competent adult,” but did not name an individual. The father refused to go into the daycare and wanted the mother to pick the child up in the daycare parking lot.
The Enforcement Hearing
The father did not have an attorney at the hearing and the court told him he was not entitled to one because the mother was not asking for more than six months of jail time. He argued he was not responsible for the delayed flight. He also argued the mother failed to designate an individual as a competent adult to receive the child, so he handed the child off directly to the mother. The court questioned him, and he ultimately admitted that he had not read the message regarding the designation.
The trial court found the father in contempt on all of the allegations. The court found the decree was not ambiguous or confusing. It further found the mother’s designation complied with the decree. The court required the father to sign the tax and property transfer documents and awarded the mother attorney’s fees.
Father Appeals
The father appealed, arguing the trial court erred by not advising him of his rights to counsel and against self-incrimination. He also made several arguments relating to the substance of the order and the trial court’s findings.
The appeals court found the trial court’s order was not a “true contempt order.” A true contempt order may be challenged only through a writ of habeas corpus or a writ of mandamus. A criminal contempt order must punish violation of a court order through a fine, jail, or both. A civil contempt order coerces compliance. The trial court’s order did neither, so it was reviewable on appeal.
When incarceration is possible in an enforcement proceeding, the trial court must inform an unrepresented respondent of the right to representation and the right to have an attorney appointed if the respondent is indigent. Tex. Fam. Code § 157.163.
In this case, the father could have been incarcerated so he should have been told of his right to an attorney. The appeals court found clear error in the trial court’s statement he did not have a right to counsel because the mother was not seeking more than six months incarceration.
The appeals court rejected the mother’s argument it should infer the trial court determined incarceration would not be possible. The mother had sought incarceration, and the trial court confirmed that she had requested the father be incarcerated for up to 6 months. The appeals court noted nothing in the record indicated the court had made a determination against incarceration and that it “implicitly threatened [the father] with jail time. . .”
The appeals court also pointed out the father had a right against self-incrimination due to the allegation of criminal contempt and potential jail time. The trial court failed to inform him of that right. The appeals court found the trial court erred in questioning him without a knowing and voluntary waiver.
The appeals court also rejected the mother’s argument the error was harmless, finding it likely cause an improper judgment. The trial court had focused on the father’s failure to read the mother’s message purporting to designate a competent adult. The appeals court noted that the daycare was not an “adult” and therefore could not be designated. The appeals court did not determine whether the decree would allow the mother to designate all competent adults that were working at the daycare without specifically identifying anyone. It instead focused on the fact the father only admitted he had not read the message after the court failed to inform him of his right against self-incrimination and misinformed him regarding his right to representation. The appeals court reversed the trial court’s order and the attorney’s fee award and remanded the case.
Need to Enforce Your Court Order? Call McClure Law Group Today
This case illustrates the potential consequences of a contempt order and the importance of having legal representation. If you cannot comply with or do not understand the terms of a custody or support order, a knowledgeable Texas custody attorney can advise you on your options before you are facing an order of contempt. In some cases, clarification or modification of the order may be possible. Call 214.692.8200 to schedule a consultation with McClure Law Group.