In Re Nicole Renee Farmer--Appeal from 410th District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-01-446 CV
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IN RE NICOLE RENEE FARMER
Original Proceeding
OPINION

This petition for writ of habeas corpus arises from alleged violations of temporary orders issued in a suit affecting the parent child relationship; the minor children involved are M. F. and J. F., and their divorced parents are relator Nicole Farmer and respondent Jessie Farmer. On October 3, 2001, the trial court found Nicole in contempt of court for violation of a court order and ordered her confined in the Montgomery County Jail for seven days. On October 5, 2001, Nicole filed her petition for writ of habeas corpus after which this court ordered her released upon the posting of a $500 bond. See Tex. Gov't Code Ann. 22.221(d) (Vernon Supp. 2002).

Temporary Orders and Contempt Judgment

On February 12, 2001, the trial judge signed temporary orders that contained provisions relating to conservatorship, possession, child support, and medical insurance; the temporary orders also contained "special provisions" relating to mental health evaluation and treatment for the children and the parties. Prior to the signing of the temporary orders, the trial judge held hearings on October 10 and 26, 2000. (1) At the October 26, 2000, hearing, the trial judge made clear his intent to enforce the order strictly.

I'm going to sign it with the understanding between both of you . . . if it is violated at all, that there will be either monetary sanctions or jail time. . . .

Let's talk about it again. This order is going to mean what it says in every respect, so, let's talk about what the order is going to say. . . .

 

The initial thrust of this entire agreement and this order is to place [M.F.] and [J.F.] in a situation of stability. By that, I mean, emotionally and medically-medically with respect to [J.F.]. . . .

 

Whatever Dr. Parham slash his clinic advises is what we're going to do. If any of you miss one appointment, bring your suitcase. You're going to jail, period. I'm absolutely not going to put up with that at all.

Is that clear? Is that clear? And if a child misses an appointment that happens to be in your possession at the time, I'm gonig [sic] to put you in jail. . . .

 

The trial judge's intent to enforce the order was unmistakable.

Some six months later, Jessie filed a motion to enforce in which he alleged that Nicole violated the temporary orders. The pertinent provision of the temporary orders is as follows:

The parties . . . and the children, [M.F.] and [J.F.], are ORDERED to submit themselves and the children for psychological testing, evaluation, counseling, and treatment by Steven Parham, PhD, . . . or any other mental health care provider recommended by Dr. Parham and shall fully cooperate with and follow any directives established by any mental health care giver for care, therapy, evaluation, treatment or referral for the parties . . . or the children who are the subject of this order.

At the conclusion of the hearing on the enforcement motion, the trial court found Nicole in contempt of court; that same day the trial judge signed a contempt judgment which stated that Nicole violated the provision set out above in the following manner:

On or about February 12, 2001, and continuing on a regular basis thereafter, Nicole Farmer failed and refused to submit herself and her children, [M.F.] and [J.F.], for psychological testing, evaluation, counseling and treatment by Steven Parham, PhD, or any other mental health provider recommended by Dr. Parham. On or about February 12, 2001, and continuing on a regular basis thereafter, Nicole Farmer failed and refused to fully cooperate with and follow any directives established by Stephen Parham, PhD, or Leonard Bohanon, PhD., a mental health care provider recommended by Stephen Parham, PhD, for care, therapy, evaluation, treatment or referral for the parties . . . or the children who are the subject of this order.

After setting out the violations of the temporary orders, the contempt judgment ordered Nicole to spend seven days in the county jail. The judgment then provided that Nicole "shall immediately make an appointment with [Dr.] Bohannon [sic] . . . or another Ph.D.-level mental healthcare provider of her choice for psychological counseling and therapy within 7 days after being released from the Montgomery County Jail, and unless such appointment is made within such 7-day period after release from jail, Nicole Farmer is again committed to Montgomery County Jail until she shall purge herself from contempt[.]" In addition to the violations set out above, the trial court found that Nicole violated another provision of the temporary orders. However, Nicole has only challenged the violations set out herein.

In her habeas corpus petition, Nicole raises three issues: (1) she contends she did not violate those portions of the trial court's order that require her to cooperate fully with the mental health care provider and to follow his directives, and, therefore, she is not in contempt; (2) the unitary sentence for contempt imposed by the trial judge is invalid, since she is not guilty of at least one of the counts of contempt; and (3) the temporary order is too vague and indefinite to be enforced through contempt.

 
Standard of Review

A trial court has broad discretion in enforcing its orders; one method of enforcement is through an order of contempt. Ex parte Roan, 887 S.W.2d 462, 464 (Tex. App.--Dallas 1994, orig. proceeding). "Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority." Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). There are two types of contempt: direct contempt involves disobedience or disrespect occurring within the trial judge's presence, while constructive (or indirect) contempt takes place outside the court's presence. Id. In this case, the alleged violation of the court order occurred outside the trial judge's presence and therefore constitutes constructive contempt.

Contempt is also distinguished by the type of punishment the trial court imposes. While the purpose of criminal contempt is to punish the contemnor for some past conduct or disobedience to a court order, the purpose of civil contempt is to persuade or coerce the contemnor to obey an order of the court. In re Johnson, 996 S.W.2d 430, 433 (Tex. App.--Beaumont 1999, orig. proceeding). In civil contempt, the confinement is conditioned upon obedience, and, therefore, it is said the civil contemnor carries the keys of the prison in her own pocket. Id.

Here, the portion of the contempt judgment that we must consider is criminal contempt: Nicole is challenging the seven day jail incarceration ordered by the court for failing to obey the court's order. She maintains the portion of the judgment labeled "civil contempt" is not ripe for review. We agree that the civil contempt is not reviewable at this time. We will not consider questions concerning the propriety of being imprisoned in the future for civil contempt (1) until the sentence levied for committing criminal contempt expires and (2) then only if she disobeys the order concerning future conduct. See generally In re Scariati, 988 S.W.2d 270, 273 (Tex. App.--Amarillo 1998, orig. proceeding).

As a general rule, decisions in contempt proceedings are not appealable, and the validity of the contempt judgment can only be attacked by a writ of habeas corpus. See Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.--Houston [1st Dist.] 1994, writ denied.). If the contempt order does not involve confinement, the only possible relief is by writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999). Here, the order does involve confinement and Nicole properly attacks the finding of criminal contempt by her habeas corpus petition. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). As the relator in a habeas corpus proceeding, she must conclusively demonstrate her entitlement by showing the contempt order is void and not merely voidable. Ex parte Roan, 887 S.W.2d at 464.

In a criminal contempt conviction for disobedience to a court order, the trial court must be shown proof beyond a reasonable doubt of the following: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. Chambers, 898 S.W.2d at 259. The trial court has the duty and right to judge the witnesses' credibility and the testimonial weight to be given specific testimony. The trial judge can disregard some or all of a witness's testimony because, as factfinder, the judge may believe some but not all of what a witness swears. In re Reed, 901 S.W.2d 604, 612 (Tex. App.--San Antonio 1995, orig. proceeding). In our review of a habeas corpus petition that seeks to have a contempt judgment declared void, we do not re-weigh the evidence adduced at the contempt hearing to determine whether it preponderates against the judgment. Chambers, 898 S.W.2d at 259. Our function is to determine if the trial court's contempt findings are so completely without evidentiary support as to render the trial court's judgment void on the ground that it deprives the relator of due process. Ex parte Howell, 843 S.W.2d 241, 245 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding).

Public Policy

We begin our analysis by noting that it is the public policy of this State to "provide a safe, stable, and nonviolent environment for the child . . . ." Tex. Fam. Code Ann. 153.001(a)(2) (Vernon Supp. 2002). In child custody matters, an appellate court gives deference to the trial court in its determination of what is in the best interest of the child. See Doyle v. Doyle, 955 S.W.2d 478, 481 (Tex. App.--Austin 1997, no pet.). What we have before us, however, is not a child custody matter, but instead a habeas corpus petition asking us to order Nicole Farmer released from the confinement (2) mandated by a contempt judgment. Her petition is not an appeal, and she does not raise a child custody issue -- i.e., the designation of a conservator, the amount of child support, or visitation time frames. Nonetheless, we are presented with a record evidencing a child in need of professional medical and psychological attention, and the trial judge's efforts to see that the child receives it. The trial court must be given great deference in its efforts to assure that the child is not deprived of those needs by the parties to the litigation; if the contempt findings are not so completely without evidentiary support as to render the judgment void on due process grounds, we will uphold the judgment. See generally Ex parte Howell, 843 S.W.2d at 245.

Was There A Violation Of The Temporary Orders?

Nicole first argues there is no evidence to support the trial court's finding that she violated the temporary orders. In particular, she directs us to the allegation that she "failed and refused to fully cooperate with and follow any directives established by [Parham] or [Bohanon], a mental health care provider recommended by [Parham], for care, therapy, evaluation, treatment or referral of the parties . . . or the children who are the subject of this order." Nicole argues the disjunctive language of the order requires her to "fully cooperate with" and "follow any directives established by [Parham] or [Bonhanon]." (Emphasis added). Since the order employs disjunctive wording, she maintains that if there is evidence she cooperated with just one of the two men, i.e., Bonhanon, then the requirement of full cooperation and adherence to the directives is satisfied. However, we need not address the grammatical or syntactical aspect of her argument; regardless of the import of the "or" language, the record reveals evidence of Nicole's failure to abide by the trial judge's order even as applied to Bohanon.

To support her contention that she did not disobey the trial court's order, Nicole directs us to testimony from Dr. Bohanon. In describing his involvement in the case, Bohanon indicated he understood his function to be limited to "family therapy" treatment -- the family being "Nicole, Jessie, Dawn [Jessie's wife], and all of their children." In evaluating Nicole's conduct in the confines of his understanding of his role, Dr. Bohanon testified that Nicole "ha[d] been cooperative with [him]," had "aid[ed] the process," and had "fully complied with all requests" he had made of her.

The record, however, contains other conflicting evidence from Dr. Bohanon that the trial judge could have believed and on which he could have based his order of contempt. Dr. Bohanon agreed there had been extreme difficulties between Jessie and Nicole Farmer in the on-going custody litigation. In his role as family therapist, Bohanon acknowledged he recommended (1) that Nicole see him or someone else and (2) that she take J.F. to see Carla Wynn, a licensed masters social worker and psychotherapist. Regarding his recommendation concerning J.F., Dr. Bohanon testified as follows:

Q. (Jessie's Attorney): Is it not a fact that you wrote a letter saying that you recommended therapy with Carla Wynn?

 

A. (Dr. Bohanon): Yes, it is a fact.

 

Bohanon's letter recommending a visit to Carla Wynn is contained in the record.

Upon further questioning, Dr. Bohanon again testified of his communication with Nicole:

A. Carla Wynn was recommended to perform an initial assessment of [J.F.] and herself at that point to determine what treatment regimen would be indicated.

 

The trial judge asked his own questions to clarify the situation:

 

THE COURT: Let me ask the question of the doctor. You said previously that you didn't feel like you were qualified to make an evaluation concerning a child of this age.

 

THE WITNESS: That's correct, sir.

 

THE COURT: Is Ms. Wynn?

 

THE WITNESS: Yes, she is.

THE COURT: Okay. And let me apologize. Who did you recommend that -- who did you tell, as far as these parties are concerned, that you wanted the child taken to Carla Wynn? All of them; one of them?

 

THE WITNESS: To the best of my knowledge, that representation has been given to both Jessie and Nicole.

 

THE COURT: Jessie and Nicole, did you say?

 

THE WITNESS: Yes, sir.

 

There is no indication from Bohanon that Nicole ever expressed to him a lack of understanding of his recommendation or of the requirements of the order. Instead, he "felt that [she] was concerned enough about the fairness of the order that she might be better served in another venue." Since he understood her to have reservations about his own fairness, he indicated he left the decision regarding future visits to her. In describing the frequency of the family therapy visits, Bohanon indicated that Jessie had brought M.F. (the child living with Jessie) some nineteen times for treatment, while Nicole had never brought J.F. in to see him at all and had come only two times to see him herself. It was during those two visits that Nicole expressed her reservations about the fairness of the trial court's order and of Dr. Bohanon himself. It was also Bohanon's understanding that Nicole had never taken J.F. ( who lives with her) to any mental health care provider after the issuance of the temporary orders. In assessing the results of the family therapy treatment, Bohanon testified the progress with J.F. had been "quite slow," while M.F.'s progress had been "very good."

In considering the testimony before him, the trial judge concluded the temporary order was violated. As detailed above, the record demonstrates evidentiary support for his conclusion. The following colloquy, which occurred during the October 3, 2001, hearing on the motion to enforce, illustrates the point:

Q. (Jessie's Attorney): And you didn't ask Nicole to come back, but -- why didn't you ask her to come back?

 

A. (Dr. Bohanon): When I reach the end of an initial visit with a client, . . . we do a collaborative review of what that person's goals are and how I might be able to be helpful to them. That review was done. We left it so that if Nicole wanted to come back for treatment with me, she was entitled to do that. She is also entitled to seek somebody else for treatment if she felt more comfortable in that arrangement.

 

Q. Well, now, the problem with that is that . . . may be a good clinical approach; but . . . we were working under a Court order for Nicole to be evaluated and going to family counseling. You understood that, right?

 

A. And I'm a clinician, sir, so my approach is clinical.

 

Q. So, by not asking her and encouraging her to come back to participate in the family therapy, it didn't really fulfill the needs of why you were in the picture in the first place, as far as the Court order was concerned.

 

A. I believe it was consistent with the request to do family therapy. Family therapy doesn't even require everybody to see the same therapist. It is possible for more than one therapist to collaborate in just an office visit and still work on the same case.

 

THE COURT: The bottom line . . . is, you told her you recommended she come to see you or see someone else in your profession, as long as it's one or the other.

 

A. Yes, sir.

 

THE COURT: You recommend that today.

 

A. Yes, sir. I'd recommend that today.

 

THE COURT: She didn't come back to see you.

 

A. She came back to see me one additional time.

 

THE COURT: After that, she didn't.

 

A. No.

 

THE COURT: And has she seen anybody else in your profession, to your knowledge?

 

A. Not to my knowledge.

 

. . . .

 

THE COURT: Okay. And the only failure is, that you're seeing here, if you want to call it a failure - and I don't mean legally -- but the only follow-up or testing that has not been done is two. Ms. Wynn has not see the child [J.F.].

 

A. No, she's not, to my knowledge.

 

THE COURT: And Nicole has not gone back to you or someone else, to your knowledge.

 

A. That's correct, sir.

 

The trial judge succinctly stated the violations: Nicole had not gone back to see Dr. Bohanon or anyone else, and Nicole had not taken J.F. to see Bohanon, Carla Wynn, or anyone else. Though the record contains testimony from Dr. Bohanon that Nicole cooperated in the process -- at least to the limited extent she chose to do so, there is also evidence in the record of her violation of the trial court's order. Jessie also testified, and the trial court heard his testimony in support of the motion. After the movant rested, Nicole presented no evidence.

The record reflects the judge's concern for the child's welfare and his intent to punish Nicole for her contempt of his order and to assure that the parties comply with his orders in the future. Based on our review of the record, we conclude there is evidentiary support for the trial court's finding Nicole Farmer in contempt for failing to obey the trial court's order. We overrule her first issue.

Unitary Sentence

Nicole contends the "unitary sentence" (the single sentence for all the contempt violations) imposed by the trial court is invalid, because she is not guilty of at least one of the counts of contempt. When, as here, a trial court assesses a single punishment for more than one contemptuous act, and at least one of the acts was not punishable by contempt, the entire contempt judgment is void. See Ex parte Jordan, 787 S.W.2d 367, 368 (Tex. 1990). Because Nicole's issue is predicated on a challenge to only one of the violations, and we have affirmed she did commit that violation, the unitary sentence is not void. Her issue two has no merit and is overruled. Further, we need not address Jessie's suggestion that we rely on the "modified contempt order" signed by the trial court on October 29, 2001. The only change in the modified order -- the assessment of a separate punishment for each violation, to run concurrently -- apparently represented the trial court's attempt to resolve the "unitary punishment" problem in the event this court found Nicole did not commit the violation she challenged. Because we have determined Nicole committed the only violation she challenged on appeal, it is not necessary to consider Jessie's suggestion that we review the "modified order." Issue two is overruled.

Are The Temporary Orders Vague And Indefinite?

In issue three Nicole argues the temporary orders are too vague and indefinite to enforce through contempt. The language she challenges is that which requires her to "submit" herself and the children for "psychological testing, evaluation, counseling and treatment," and to "fully cooperate with and follow any directives established by any mental health care giver for care, therapy, evaluation, treatment or referral for the parties, . . . or the children who are the subject of this order." Claiming the language makes it impossible for her to determine exactly what she is required to do, she argues there is no proper basis for the trial court's having found her in contempt. In support of her claim, Nicole points out that Dr. Bohanon himself characterized the requirement of submission to "psychological testing, treatment, evaluation, counseling, and treatment" as being "too vague" to give him and his colleagues sufficient guidance regarding the kind of evaluation they were to perform. In addition, Dr. Bohanon characterized his recommendation to have J.F. see Carla Wynn as simply providing "information" to Nicole, rather than giving a directive.

To support a judgment of contempt, Texas law requires that the underlying decree set out the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed. Ex parte Chambers, 898 S.W.2d at 260. "A court order is insufficient to support a judgment of contempt only if its interpretation requires inferences or conclusions about which reasonable persons might differ." Id. Only when there are reasonably alternative constructions will the order not be enforced. Id. Interpretation of the provisions of the court order should not be grounded in implication or conjecture. See Ex parte Hodges, 625 S.W.2d 304 (Tex. 1981). On the other hand, the court "order need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine in order to declare it vague." Ex parte Chambers, 898 S.W.2d at 260. Our review is not limited to only the phrases alleged to be vague; we consider the trial court's order as a whole in determining whether the challenged language is ambiguous. Ex parte Johns, 807 S.W.2d 768, 773 (Tex. App.--Dallas 1991, orig. proceeding).

The temporary orders in this case are sufficiently specific to apprise Nicole of the actions required of her. Unlike cases that involve vague or ambiguous orders concerning the amount or timing of child support payments or the place, time, and duration of visitation, the orders here concern mental health evaluation and treatment for the parents and their children. In reviewing the entire order, we are cognizant of the customary provisions pertaining to conservatorship, child support, possession, and medical insurance. We also take note of the section entitled "Special Provisions." Five of the six "special provisions" deal in some way with the psychological evaluation and treatment of J.F., M.F., Nicole, and Jessie. Being "special provisions," they address the special needs and circumstances inherent in a case where, by all accounts, the parents are "bitterly conflicted."

Through these special provisions in the temporary orders, the trial judge sought to stabilize the situation and afford the children, as well as their parents, mental health evaluation and treatment. By ordering the parties to submit themselves and their children for psychological testing, evaluation, counseling, and treatment to Dr. Parham or any other mental health care provider recommended by him, the trial judge, in effect, took the matter out of the hands of the parties. He accomplished a similar result by ordering Nicole and Jessie to fully cooperate with and follow Parham's or Bohanon's directives regarding the "care, therapy, evaluation, treatment or referral for the parties [Nicole and Jessie] . . . or the children." We find a reasonable person could read the order and readily know what duties and obligations were imposed upon her. The record also reflects that at the October 2000 hearings, the trial judge warned that he would jail any party who failed to keep the mental health care appointments. We find the order is reasonably specific and capable of being understood. Put simply, both phrases require the parties to do what the specified health care providers convey to them should be done. Nicole cannot disobey the order because she does not consider the order "fair."

Viewing the provision in question and the order as a whole, we conclude that the temporary orders are clear and unambiguous. We overrule issue three.

The petition for habeas corpus relief is denied. Our previous order granting bail is revoked.

WRIT DENIED.

PER CURIAM

Submitted on January 2, 2002

Opinion Delivered March 14, 2002

Do Not Publish

 

Before Walker, C.J., Burgess and Gaultney, JJ.

1. The official transcript from the October 26, 2000, is not contained in the record. However, both parties include the motion to enforce as an attachment to their pleadings before this court. The enforcement motion quotes extensively from the hearing, and no one says that the quoted portions are less than accurate.

2. We note that Ms. Farmer is out on bail.