Opinion
No. 05-17-01260-CV
12-19-2017
IN RE YANIKA DANIELS, Relator
Original Proceeding from the 303rd Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-05-12682
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Lang-Miers
The underlying proceeding involves a suit affecting the parent-child relationship. In this original proceeding, relator Yanika Daniels seeks relief from an order of contempt rendered against her by default. By order dated November 2, 2017, we requested the real party in interest and respondent file their responses, if any, to the petition by November 17, 2017. No responses were filed. Because the default contempt order is void and Daniels lacks an adequate remedy on appeal, we conditionally grant the writ of mandamus and deny relator's alternative request for a writ of habeas corpus.
Background
On April 17, 2017, real party in interest Derrick Battie filed a motion to enforce the trial court's November 7, 2016 child support order. In the motion, Battie argued that Daniels was in contempt of court for failure to pay child support and requested, among other relief, that Battie be incarcerated for up to 180 days and fined up to $500 for each violation of the order. By order dated April 24, 2017, the trial court ordered Daniels to appear and respond to the motion at a hearing scheduled for June 16, 2017. Daniels filed a vacation letter on May 4, 2017 setting out dates that she was unavailable due to vacation or work-related travel. In the letter, Daniels asked the trial court not to set trial, hearings, or any matters on the dates listed. One of the travel dates listed was June 16, 2017, the date set for the hearing on Battie's motion for enforcement. Daniels filed a formal answer denying the allegations in the motion for enforcement on May 25, 2017.
The trial court held the hearing as scheduled on June 16, 2017 and entered a default judgment holding Daniels in contempt for failure to pay child support. The contempt order states that Daniels was present for trial on the motion for enforcement, but that is incorrect. Daniels did not appear at the hearing. The trial court found Daniels in contempt for failing to make five child support payments, found her in arrears of $375.98, awarded Battie attorney's fees, assessed an $100 fine against Daniels, and ordered Daniels committed to the county jail for 15 days. The trial court suspended commitment and, as a condition of the suspension, ordered Daniels to pay $252.00 per month beginning July 1, 2017 until she has paid the full child support arrearage and accrued interest.
Thereafter, Daniels filed a motion to set aside default judgment and motion for new trial. In an affidavit in support of those motions, Daniels stated that she did not intentionally fail to appear at the hearing. She averred that she did not see the notice of hearing when she received the motion for enforcement because it was attached to the back of the motion, and she trusted that the court would not set a hearing on any of the dates listed in her vacation letter. This original proceeding followed. Daniels argues that the contempt order is void and should be vacated because (1) Texas law prohibited the trial court from entering a default contempt order involving an order of jail time, and (2) the trial court abused its discretion by entering the default contempt order without first informing Daniels of her statutory right to counsel. She seeks habeas relief in the alternative should the Court decide that she is currently deprived of liberty based on the commitment order.
Discussion
To be entitled to mandamus relief, a relator must show that the trial court clearly abused its discretion and that relator does not have an adequate remedy by appeal. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex. 2004). In an original proceeding challenging a contempt order, the relator has the burden to show that the order is void. In re Lowry, 511 S.W.3d 256, 256 (Tex. App.—Dallas 2015, orig. proceeding); In re Aslam, 348 S.W.3d 299, 302 (Tex. App.—Fort Worth 2011, orig. proceeding) (citing In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding) (habeas context)). Daniels has met her burden of proof and is entitled to a writ of mandamus.
First, Daniels has shown that the contempt order is void. The Texas Family Code prohibits a trial court from holding a party in contempt by default. TEX. FAM. CODE §§ 157.066, 157.115(b). If a respondent fails to appear, the trial court may order a capias be issued but may not hold the party in contempt. TEX. FAM. CODE §§ 157.066, 157.115(b). Violating sections 157.066 and 157.115 renders the contempt order void. See, e.g. In re White, 45 S.W.3d 787, 790 (Tex. App.—Waco 2001, orig. proceeding). Here, the trial court violated sections 157.006 and 157.115(b) by holding Daniels in contempt by default. The default contempt order is, therefore, void. In addition, the contempt and commitment orders are void because the trial court failed to admonish Daniels of her right to counsel in accordance with section 157.163 of the family code. TEX. FAM. CODE § 157.163(b); see In re Rivas-Luna, 528 S.W.3d 167, 170 (Tex. App.—El Paso 2017, orig. proceeding) ("If incarceration is a possible result of the contempt proceedings, and the trial court fails to admonish an alleged contemnor of her right to counsel in accordance with section 157.163, renders the contempt and commitment orders void"). Second, Daniels lacks an adequate remedy by appeal because she does not have a right to appeal the contempt order. See In re Aslam, 348 S.W.3d at 302. Daniels is, therefore, entitled to a writ of mandamus. Daniels is not entitled to a writ of habeas corpus because the contempt order does not impose requirements sufficient to constitute a restraint on her liberty. See In re Rivas-Luna, 528 S.W.3d at 169; see also Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.—Tyler 1996, orig. proceeding).
Accordingly, we conditionally grant the writ of mandamus and direct the trial court to issue a written ruling vacating the June 16, 2017 default contempt order within fifteen (15) days of the date of this opinion. A writ will issue only if the trial court fails to comply with this opinion and the order of this date. We deny Daniels' alternative request for writ of habeas corpus.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 171260F.P05