Michelle O'Neil:
Hi everybody. This is Michelle O'Neil with O'Neil Wysocki, family lawyers
in Dallas, Texas. Today, we are so excited to bring you our contempt litigation
and appeals webinar. We are joined today by two lawyers in my firm and
then also by a former judge. So today with me, obviously I'm Michelle
O'Neil. I've been doing contempt litigation and family law for 28 years,
which makes me sound really old, but that's okay. I'm also joined by Jere
Hight, who's a partner in my law firm and he does a lot of contempt litigation
at our firm as well. Karri Bertrand is one of our associate attorneys
at our firm and she's gonna help me with talking about the appellate remedies
particularly. And then we're very honored today to have retired Judge
Bill Harris. He's retired out of the 233rd district court in Tarrant County,
Texas. I brought him in specifically to talk to you guys about this contempt
litigation because in my practice and all the judges that I have practiced
in front of, Judge Harris is the most technical judge on contempt cases
that I ever practiced in front of. He did criminal litigation as a lawyer
and he really always was very conscientious to follow all the rules that
should be followed very technically in contempt litigation. So we're really
excited to hear from him. That I think covers the introductory session.
So hangout for just a minute and we will get started. Keep in mind that
this is a webinar that's aimed at attorneys. This is for continuing legal
education. If you're out there watching this webinar and you're not an
attorney, we welcome you to watch it, but remember that we are not giving
you any specific legal advice. We cannot comment on any specific case
or situation without knowing all the facts. So if you need legal advice,
this webinar is not a substitute for legal advice. Please, please seek
the advice of a lawyer as to your specific situation and get specific
advice to that, because if you rely on just what we're talking about here,
we're being general, we're talking about general legal principles that
may not actually apply to your situation. This is for continuing legal
education only and we cannot create an attorney client relationship just
through the video camera. Okay, thanks.
Michelle O'Neil:
Welcome back everybody. This is Michelle O'Neil with O'Neil Wysocki, family
law. So here we go. The first topic that we're going to present to you
today is contempt as an enforcement remedy. So this is going to be a pretty
general overview of contempt and enforcement remedies from kind of the
thousand foot level. And then the other presentations, we'll dig in a
little deeper. All right everybody, so let's get started. Contempt as
an enforcement remedy, I think a lot of times people confuse the words
contempt and enforcement. So Judge Harris, if you don't mind kicking us
off here. Let's talk about what's the difference between the term enforcement
and the term content?
Judge Bill Harris:
Well, I think enforcement is a very broad area. It entails use of contempt,
post judgment orders, all sorts of things that are available under Texas
Law to enforce a judgment. But contempt in the family law context particularly,
in the enforcement of support and possession access orders is the most
effective because it's the scariest to people because criminal contempt
can get put you in jail up to 180 days per violation and be fined $500
per violation. So that's the sort of thing gets people's attention more
so than perhaps a writ of execution or something like that.
Michelle O'Neil:
So what are some other remedies for enforcement that aren't contempt? Just
so we can draw those distinctions.
Judge Bill Harris:
Well, if you have a judgment, particularly child support judgment, a child
support judgment never goes away. It's one of the few judgments in the
law nationally that you cannot shake. So a child support judgment, they'll
collect it even after you die. Under Texas law we have the turnover statute
where you can have a receiver appointed to require the person you're enforcing
against to turnover nonexempt property and you have what's called a charging
order in which you can actually force a partnership or a limited liability
outfit to turnover a partner's share as a collection too. So there's a
variety of things you can use, but contempt I think is by far the most
commonly used.
Michelle O'Neil:
Yes, Scary. Jere, are there other enforcement remedies that you can think
of besides the ones we've talked about so far?
Jere Hight:
In property, there is specific performance. If there's a provision, for
instance, requiring that a one party sign off on a transfer of property
or physically deliver property, then you can have the court require them
to specifically perform that act at a date and time certain. And if they
say, well, I don't have the property it's gone, then the court is empowered
to a grant them a money judgment for the value of whatever property that
is magically disappeared since the entry of the decree. And then in regards
to possession, you can of course always order makeup time.
Michelle O'Neil:
So Karri, are there any others that you can think of? Especially in the
child support realm, there's some other avenues that you can use to get
compliance that don't involve a deprivation of liberty.
Karri Bertrand:
I think they can restrict your ability to renew your driver's license or
other professional licenses. They can capture your tax return funds at
the state level. I've had clients call in and say, I don't know where
my refund when I'm like, Oh, do you have a child support judgment? Yes,
exactly. They can garnish your bank account. They can get pretty aggressive
and like I said, it doesn't go away.
Judge Bill Harris:
I can tell you when the legislature passed a statute on the licensing,
particularly hunting license you’d be astounded with how much compliance
we got from the people you wanted to go out and hunt.
Michelle O'Neil:
Want to go dove hunting and deer hunting. It is Texas, we have our priorities. I mean we do have our priorities.
Judge Bill Harris:
That's right.
Michelle O'Neil:
All right. So in order to be enforceable, so we've talked about enforcement as the umbrella remedy. We've talked about the different types of things I've remedies that are available for contempt, contempt being one of them, but also the other types of remedies that are available for enforcement. So in order to enforce an order by contempt, Judge Harris, what are the basic requirements that an order has to have in order to be enforceable by contempt?
Judge Bill Harris:
Well, the requirements under Texas law have been set up by a line of helicases
that define what you have to have. In a nutshell, the order has to be
clear and specific. It has to command someone in order language. It has
to have language that conveys an order as opposed to a condition or something
like that. It has to be valid. And there's a lot of ways for orders can
turn out to be not valid. But the clearest specific nature of it is where
there's a lot of Texas cases. The Slavin case says has to be clear, specific.
There's a case, I can't remember the case name, that says if it orders
a person to do two different things and they do neither, they can't be
held in contempt. There's just a lot of little variations on that. But
most of these things fail on being clear and specific.
Michelle O'Neil:
I had the Depree case many years ago, 2003, that was actually the first
seminal case on whether you can enforce contractual alimony by contempt.
And one of the things that was interesting about that case, and there've
been some cases since then that talked about kind of a similar issue,
but in that case, instead of saying it is ordered, it said the parties
agree that blah, blah blah, the parties agree that blah, blah blah. And
so that was one of the issues that the court pointed out that that took
it out of contempt land. Even if it had been chapter eight maintenance,
which they determined that it was contractual alimony and therefore not
contemptible. But even if it had been chapter eight, the fact that it
did not have order language was a key. So order language is obviously
kind of a bottom line of having a clear and specific order and then having
like spelling out the obligation. In other words, it can't just say something
vague about what you're supposed to do. You actually have to have the
time, place specifically laid out as to what you're supposed to do. So
Karri, you read the Slavin case before we got on air. So talk about the
Slavin case. That's always the main one that we quote, just almost like
everybody ought to know it, but I think sometimes we shortcut around things.
So tell me about the Slavin case.
Karri Bertrand:
So the Slavin case, there were three children and the father was ordered
to pay child support and the child support language basically said that
he would pay the child support every month as long as the children were
above the age of 18 or under the age of 18, sorry. And so it was unclear
as to when the child support would end because as long as all of the children
were under 18, he would continue to pay the child support. But it didn't
say that he would continue to pay it for each child for that entire time.
So I think he stopped paying it after the first child turned 18 and decrease
the amount by agreement with the mother and then she filed for enforcement
wanting to enforce the full amount.
Michelle O'Neil:
So when we talk about the Slavin case in relation to these contempt things,
what's the kind of seminal point of why we talk about Slavin?
Karri Bertrand:
Well, as he was saying that the clarity and the specificity of the language
is very important. I went through Slavin and I pulled out all the different
verbiage they use to describe how the order needed to be worded. Clear,
specific, unequivocal, may not mislead the parties, must state the details
of compliance, like you said, unambiguous, precise. It has to inform the
person of the acts for which they're being restrained from doing. If there's
restraint language in there, there must be a measure of certainty ,if
the order is to indefinite to be enforced, it's void. So like he said,
there's a history of case law that they kind of piled into Slavin that
led to all of this, why the order has to be so specific. And it comes
down to like a due process issue. Like you have to know what you're doing
wrong and it has to be clear and unambiguous before it can be enforced
against you by content.
Michelle O'Neil:
So the most common types of orders that are enforced by contempt in the
civil world, in our family law civil area, child support obviously is
the one that comes to mind. Possession schedules can be enforced by contempt.
Medical support can be enforced by contempt, but there's a lot of orders
that cannot be enforced by contempt. So let's talk through some of those
and then I'll post some questions to you guys about whether you think
certain things can be enforced by content. So a Judge Harrison a ward
of property or a order to pay a money judgement or a money amount.
Judge Bill Harris:
It has to be money judgement, it has to be an amount of money in existence
at the time the judgment is made. And the turnover of property, it has
to be clear and specific what property it, it can't just say turn over
the candlesticks or all the living room furniture. It has to be a clear
specific award. And a lot of times on these, that's a real difficulty
with contempt cases. And a lot of lawyers will tell you, experienced family
lawyers. And I think that you guys were all experienced enough to know
that if you want personal property and things like that, if you don't
have it in your possession on the day that the divorce is granted, you
will never ever see it again.
Michelle O'Neil:
So that is the reality.
Judge Bill Harris:
That's the reality of the situation.
Michelle O'Neil:
So an order that says turn over all the living room furniture by date certain,
probably not contemptible. How specific do you think that needs to be?
Judge Bill Harris:
I think it has to be specific enough where you can identify the individual
piece of furniture.
Michelle O'Neil:
Red Couch with the green stripe, that might be an ugly couch.
Judge Bill Harris:
But if it's a specific item like the football helmet signed by so-and-so
athlete. That would be something specific. A collection of coins, perhaps.
It has to be that would be specific. But it has to be, like Karri was
saying, it has to comply with Slavin and all of those cases as to clear
language, exactly what you're supposed to do when you're supposed to do
it, things like that.
Michelle O'Neil:
So, Jere what about, and we see this fairly often. What about when you
have a ruling that's like a memorandum ruling, but you don't have the
order entered yet. And in the memorandum ruling it tells somebody to do
something by a date certain and the order doesn't get entered by that
date certain, is contempt remedy for that?
Jere Hight:
No. You need the final order, you need an order and you need the action
for which you're seeking contempt to have occurred after the entry of
the order. It's enforceable beforehand, but not by contempt.
Michelle O'Neil:
So let's have a scenario on that and I'll be curious to get the judges
take on this. So let's say you have a trial and a ruling and that child
support is supposed to start, let's say the trial was in January and child
support in the ruling is supposed to start by February 1st. And then the order doesn't get entered until mid-February, but the order
says that child support started on February 1st but the order one sign
till after February 1st. How do you think that affects child support enforcement
for February 1st and then the second question is how does that affect
child support enforcement for all the dates after the order actually was signed?
Judge Bill Harris:
It's collectible, it's not enforceable by contempt. It's the same situation
as, in a lot of the urban counties that have associate judges, you have
associate judges reports, you know what the associate judges reports it.
Everybody knows what it says. You can't enforce it by contempt with an
exception if an associate judge’s report is written out specifically
to where it contains ordered language and all this other stuff, there
are some cases say you can enforce those by contempt. And it's the same
way with a written rendition from the court. If it is specific enough,
which I know mine typically we're not. My written renditions we're just
the recitation of my decision and they were not written specifically enough
to support contempt.
Michelle O'Neil:
That brings up an interesting point and we will post the case name in the
comments because I can't think of it right now off the top of my head,
but there was a case out of Collin County I think recently where there
was a memorandum ruling and the Court of Appeals held it to be an order,
actually the order because it contained all the correct order language
in it. And that I think the lawyers on that got caught by surprise.
Judge Bill Harris:
I have in contempt classes I've taught and presentations I've made in the
past, I have always opined that that is the case. I was not aware of any
cases until the Collin County order came down that actually confirmed
that, but he's always been my opinion that you could, if the other criteria
were there, it was enforceable by contempt. But so many of the renditions
and associate judges report where it has a fill in the blank and all that,
they just don't get there.
Michelle O'Neil:
And so one of the things that I think you have to have as distinguishing
between a memorandum ruling versus an actual order would be language indicating
that this is the order. In other words, if it says in the ruling the petitioner
is to prepare an order and compliance with the Texas family law practice
manual by a certain date, then that would naturally mean that the judge
did not intend it to be the order. But if it actually says it is ordered
and signed on and whatever, I mean, I think it's probably the order. And
obviously outside of contempt litigation, but that creates a problem from
an appellate standpoint if a lawyer misses that. So let's talk about geo
restrictions. I have had a case recently where, um, a party moved outside
of the geo restriction and so there was some questions about what enforcement
remedies are available and whether contempt is a remedy that's available
for forcing compliance with a geo restriction. What are your thoughts
on that, Judge Harris?
Judge Bill Harris:
Well, I think that a geographic restriction, my personal opinion I don't
think it is specific enough to be enforceable by contempt cause the geographic
restriction typically says that so and so is appointed the primary or
whatever the language is of the child with the right to establish the
child's residents primary residence in blank county. Well that is a right,
but it is not an order. It doesn't say it is ordered that so and so maintain
the child's primary residence in x county. And of course then there’s
even a trickier deal that I've run into before and it's a matter of interpretation.
But if it says, whoops, for example, the order says maintain the child's
a primary residence in Dallas and contiguous counties. Well, depending
upon your interpretation of that, you could be every county in Texas because
all the counties in Texas, all 254 are contiguous to one another. But
a lot of the lawyers who got around that by drafting it to say Dallas
and counties contiguous to Dallas.
Michelle O'Neil:
Very good. That I think that's an important point.
Judge Bill Harris:
It is splitting hairs, but
Michelle O'Neil:
It is splitting hairs and I'm not sure that most judges are as technical on the hairsplitting as you are, which I am going to point out the irony of hairsplitting…
Judge Bill Harris:
It's not lost over you, Michelle.
Michelle O'Neil:
But I'm not sure that most judges that I practice in front of what would split those hairs quite so closely, but I think it is a point of interpretation that when it says Dallas County and contiguous counties, that is an imprecise drafting. Where if you say Dallas County and counties contiguous to Dallas County than it does tighten that up a little.
Judge Bill Harris:
I think the biggest thing of domiciled restrictions is that the judge is
probably going to, at least on a temporary basis, make the person who
violates it move back or bring the child back. Obviously under the constitution
the judge can't make anybody live anywhere, but the children they can,
so I think that's typically what's your remedy is going to be.
Michelle O'Neil:
So do you think that changing custody is a remedy for enforcement on a
geo restriction?
Judge Bill Harris:
I think it sure could be one.
Michelle O'Neil:
Interesting, because I think it's an open question. My opinion is that
there's kind of a loophole here in the enforcement of geo restrictions
because while I think the judge can order the party to move the children's
residence back to the county by date certain and then that act could be
contemptible. I agree that generally speaking, the geo restriction probably
wouldn't be contemptible, but there's a case. I handled a case in Enray
MAM, which we'll post the link in the comments, that said that you can't
modify an order in an enforcement order and in MAM the judge in that case
modified the child support in an enforcement order because it wasn't in
compliance with the amendments to the statute and the Court of Appeals
set aside that modification and said an enforcement order can’t
modify an order. So I'm not sure that I think that a judge could flip
custody on an enforcement order. There'd have to be a temporary hearing
with the standards and with the standards being so high modification on
temporary order, you'd have to prove significant impairment.
Judge Bill Harris:
I stand corrected, I misunderstood your question, on a contempt order no.
I don't think they can, on a modification filed based on the violation
of a domicile restriction, that's where you get into that, maybe but again,
you get into those factors for the temporary orders under 156 there's
an increased standard. And I think what she would have to do is you would
have to somehow bootstrap in that the violation of the geo restriction
is harming the child, which it might be a task.
Michelle O'Neil:
So interestingly, this high tower case out of Texarkana 2017, September
of 2017, this new case basically kind of addressed this point, not on
the geo restriction, but this point that we were talking about that a
draft or a proposed order cannot be contemptible. So that's a more recent
case that addresses that issue specifically. Speaking of new cases, there's
also a brand new case March 27th, 2019 out of San Antonio in enray Caldwell-Bays,
we'll post the link in the comments. So that was a standing order case
and in this case out of San Antonio, the mom was held in contempt for
violations of the standing order and sentenced to three days in jail,
concurrently, criminal contempt plus 180 days civil contempt because she
was ordered in the standing order not to encumber property, yet she entered
into an agreement to execute a deed for property in favor of her attorneys.
So the trial court found that she violated the standing order and held
her in contempt. So does anybody have any opinions about this case?
Judge Bill Harris:
Well, you keep looking at me and I know why because you know about my thoughts
on standing orders and just simply put, I don't think they're legal. The
legislature,
Michelle O'Neil:
at least not contemptible…
Judge Bill Harris:
Not Contemptible. I believe that they're unconstitutional because they're a one size fits all, they are not specific, they don't inform people of what they're doing. But there's just a variety of reasons. Now the legislature said, no they're good. The legislation in the family code authorizes those. And I know a lot of counties have standing orders and there have actually been some appellate cases, I know two out of the Fort Worth Court of Appeals on the Denton County standing order. Tarrant County of course follows the law. We don't have standing orders, but…
Michelle O'Neil:
Not yet, now you’re not on the bench anymore.
Judge Bill Harris:
I retired December 31s, so let's wait and see. There are two cases I'm
aware of that did affirm a contempt finding on violation of Denton counties
standing order. So that is not consistent with my opinion, but it's that's
the opinion of the Court of Appeal.
Michelle O'Neil:
Well, and I haven't read the standing order that this case is based on,
so I'm just assuming some things about most standing orders, but most
standing orders say that you can do things to incur, to pay your reasonable
necessary living expenses, your reasonable and necessary business expenses
and reasonable and necessary attorney's fees. So I would be curious to
know the underlying situation in this case where she executed a deed in
favor of her attorneys. I'm assuming that that was to pay attorney's fees,
although it doesn't necessarily say that. I'm interested to see what this
case, if they go up to the Supreme Court or something on this case, because
it would seem that you can do things in violation of the standing order
if it's to pay your attorney's fees or to buy groceries with.
Judge Bill Harris:
It's interesting to see if it goes up. Again, I'm not aware of this San
Antonio standing order, but I think you're right. Most of the standing
orders I've seen around Texas, Dallas, Denton, Wise, several of the counties
or usually just basically a recitation of what the typical boilerplate, TRO.
Michelle O'Neil:
Right. The standard.
Judge Bill Harris:
And they have a few things thrown in there, so who knows.
Michelle O'Neil:
So in Tarrant county, y'all still do standard TRO’s. So just as an
fyi to all of the people that are watching this webinar, on my blog I
did a comprehensive list of all the counties that have or don't have standing
orders. And it's also contained in my book, “What You Need to Know
About Divorce Law”, which is available on Amazon, back to the program.
So let's see, we talked about child support contempt. What about maintenance
alimony? Karri, I know that you helped me prepare for the Dalton argument
a year ago in front of the Supreme Court on this question. So let's talk
about maintenance and alimony. What is contemptible and what Is not contemptible?
Karri Bertrand:
So if it's chapter eight maintenance and it's ordered properly under chapter eight and the judge has made finding as to all of the requisite chapter eight requirements for maintenance under chapter eight, then it can be enforced by contempt. If it is contractual alimony, then no, you're not getting contempt remedies.
Michelle O'Neil:
So contractual alimony would be subject to other remedies?
Karri Bertrand:
Contract remedies.
Michelle O'Neil:
Possession schedules, Jere?
Jere Hight:
yes, are enforceable by contempt, but they have to be specific.
Michelle O'Neil:
So do you remember the judge in Dallas that had the opinion that the standard possession schedule was not enforceable by contempt. Judge Elder, you remember that?
Jere Hight:
Oh I remember that.
Michelle O'Neil:
So Judge Elder had an opinion and I'd be curious to get your take on this, Judge Harris. Judge Elder’s opinion was that because the standard possession schedule starts with, if y'all can agree on whatever, then you all can agree, an absent agreement then the standard order applies. So his splitting of hairs was that you had to prove the condition precedent of agreement or not agreement and that the fact of that language kind of took it out of contempt land. I never really subscribed to that opinion, but I thought it was an interesting one.
Judge Bill Harris:
I want to have to disagree with Judge Elder on that. I think that is a
conditional sort of a thing, that family mutual agreement. Well, it seems
to me that family mutual agreement, by definition, if there's denial position
there is no mutual agreement.
Michelle O'Neil:
But it might be a point to ask when you're proving up a contempt to just
kind of check that box and say y'all couldn't agree on this? No.
Judge Bill Harris:
Well it might be that if you're alleging and questioning your witness to
prove your content, perhaps you're saying you attempted to agree on this
possession, correct? Yes, I did. And then go from there.
Michelle O'Neil:
All right. So let's talk kind of fast forward a little bit and talk about
the difference between civil and criminal contempt. So civil contempt
is coercive in nature. I always like this or I remember it by, you carry
the keys to the jail cell in your own hand. In other words, you're in
jail until you do something and if you'll do it, then you can get out.
Criminal contempt, it looks backwards and is punishment oriented, and
it's not conditioned on performance. So interesting. discretionary good
time credit available for criminal contempt but not civil contempt. Probation
and early release, again, available for criminal contempt but not civil
contempt. So Judge, moving to direct versus indirect contempt. I've been
dying to ask you, I did not warn you that I was going to ask you this
question, but I've been dying to ask you. In your, how many years as a judge?
Judge Bill Harris:
24
Michelle O'Neil:
In your 24 years as a judge, can you tell me how many times you ever held
somebody in direct content or was it so many times?
Judge Bill Harris:
Twice.
Michelle O'Neil:
I was going to say, I didn't think it was very many. And did you stick
with it to the point where it had to have a hearing or did you kind of
do it and then let it up?
Judge Bill Harris:
I held this lawyer in contempt and I was afraid that she didn't really
understand her rights to personal recognizance. So before the bailiff
took her away I said, “miss so and so, you do want to exercise your
right to make a written request for personal recognizance, don't you?”
And she said yes. And refer the order, they released her on reconnaissance,
refer the order to the presiding judge, the eighth administrative region
along with my contempt order for referral to another judge for trial de
Novo. And the judge, the eighth administrative region, called me and asked
me if I was any particular hurry for a trial setting. And I said I was
not. And he said, do we understand each other? And I said, I think we
do. And the lawyer apologized very sincerely. And I’ll be darned
if the assigned judge never got around to it. I don't know how that happened,
but it just did.
Michelle O'Neil:
So an indirect contempt, the difference between direct and contempt and
indirect contempt. Jere?
Jere Hight:
Don't ask me, I have no idea.
Michelle O'Neil:
Oh, now you're being silly. So direct contempt is when the judge physically
observed with his own two eyes, the contemptuous behavior in the courtroom.
Not at the 7-11. Nope.
Judge Bill Harris:
It’s not in the hall outside of the courtroom. That's the Bonnie
Le Bell case where Judge Bell was late coming back from lunch and one
of the jurors kinda smarted off to her in the hallway saying something
to the effect he wished he could just be any time, she had him brought
into the courtroom and held him in contempt. And the special court of
inquiry said no, no, a thousand times no, it has to be in the courtroom.
It has to disrupt the proceedings of the court. I've always told lawyers
if I'm on the bench and you want to talk ugly to me. You tell me you do
and we'll go back to my chamber and you can say anything you feel like
saying and I'm not going to hold it against you, but if you do it in open
court, I have to. The difference is, at least the way I always looked
at it, is you're not going to hurt Bill Harris’s feelings, but the
judge of the 233rd has to maintain the decorum.
Michelle O'Neil:
So indirect contempt then is things that happen outside the courtroom,
outside the presence of the judge. And that's why due process and notice
and fair hearing and personal service and trials have to happen, right?
. Alright, so I think we're at 30 minutes. We're going to end this session.
We're going to take a little bit of a break and we will come back in a
couple of minutes with contempt enforcement pleadings, affirmative pleadings,
and defensive pleadings. So we'll be right back.