Summary
holding that the trial court's order clarifying a divorce decree made a substantive change to the decree and was therefore unenforceable
Summary of this case from In re S.D.Opinion
No. 05-04-01010-CV
Opinion Issued October 18, 2004.
Original Proceeding from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-50695-02.
Writ of Habeas Corpus Granted.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Relator Mona Naguib was held in contempt for violating a divorce decree and order requiring her to turn her minor child over to the child's father for summer possession. The court sentenced her to thirty days in jail. The court also ordered her to pay the father's attorney's fees and travel expenses, and the child's travel expenses. Mona Naguib requests a writ of habeas corpus. We grant the writ and order Mona Naguib unconditionally released from custody.
The pleadings and orders in the record before this Court refer to relator as Mona Naguib. During the contempt hearing, relator stated her real name is Mohammad Naguib. We will refer to relator as Mona Naguib because that is the name under which she filed all documents in this case.
BACKGROUND
Mona and Latif Naguib have one minor child. Latif resides in Canada and Mona resides in Collin County, Texas. Mona and Latif divorced in Collin County, Texas. The divorce decree provides that Latif is to have extended possession of the minor child during the summer under the terms of a standard possession order. If Latif notifies Mona in writing by April 1 each year, he can choose the dates of his summer possession of the child. If Latif does not notify Mona before April 1 of any year of the dates he wants possession of the minor, he is to have possession of the child from June 15 to July 27 of that year.
Latif did not notify Mona by April 1, 2004 of the dates he wanted to have possession of the minor during the summer of 2004. Latif did not take possession of the child by June 15, 2004. On June 18, 2004, Latif filed an "emergency motion to compel production of the child," which states that he purchased a ticket for the child to fly to Canada on June 21, 2004 at 4:05 p.m and that Mona emailed him that she would not turn over the child on June 21, 2004. The certificate of service on the motion states that Mona's attorney of record was served by facsimile and hand delivery. The motion includes a fiat setting a hearing for June 21, 2004 at 9:00 a.m. On June 21, 2004, the trial judge signed an order waiving the three day notice requirement of Rule 21a and compelling Mona to deliver the child to the airport by 2:30 p.m. that day for the flight to Canada. Mona did not deliver the child to the airport on June 21, 2004.
Mona also contends that although Latif filed this as an emergency motion to compel production of the child, it was really an application for a writ of habeas corpus because that is the only procedure for determining the right to possession of the child, TEX.FAM.CODE ANN. § 157.372 (Vernon 2002), and that it did not comply with those requirements. We do not reach that issue.
Latif filed a "motion to enforce and order to appear" requesting that Mona be held in contempt for refusing to obey the divorce decree and the June 21, 2004 order. After a hearing, the trial judge signed an order holding Mona in contempt and committing her to jail for thirty days. The trial court also ordered Mona to pay attorney's fees and costs, Latif's costs of travel to and from Canada, the child's return travel expenses, and child support while the child is in Latif's possession. The order assessed these costs as child support. The trial court awarded Latif immediate possession of the child until Mona's release from jail and suspended his obligation to pay child support while he has possession of the child. Mona then filed this petition for writ of habeas corpus. This Court ordered Mona released on bond and also ordered a response to the petition to be filed. Thereafter, Mona filed for bankruptcy protection.
BANKRUPTCY
We must first address the effect of the bankruptcy filing on her petition for writ of habeas corpus with this Court. Mona argues that this original proceeding is automatically stayed under the provision of 11 U.S.C. § 362. The automatic stay stops all judicial proceedings "to recover a claim against the debtor that arose before commencement of" the bankruptcy case. 11 U.S.C. § 362 (a)(1). However, the automatic stay does not apply to criminal contempt proceedings. In re Wiese, 1 S.W.3d 246, 248-49 (Tex.App.-Corpus Christi 1999, orig. proceeding). The order holding Mona in contempt committed her to jail for thirty days with no means of securing her own release. Thus, this is a criminal contempt proceeding and the bankruptcy stay does not apply to that portion of the order committing Mona to jail. Further, the overarching purpose of the order is to secure Latif's right to spend an extended period of time with his child during the summer of 2004. Because the main purpose of the order is not for payment of money, Mona's bankruptcy does not stay this Court's proceedings.
CONTEMPT ORDER
For this Court to grant a writ of habeas corpus, we must conclude that the that trial court's contempt order is void, either because it was beyond the power of the court or because it deprived Mona of her liberty without due process of law. Ex Parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding). The trial court's "order holding respondent in contempt and for commitment to county jail" includes the following findings:
On February 6, 2003 the Court signed an Order entitled Final Decree of Divorce, that appears in the minutes of this Court, and states in relevant part as follows:
"IT IS ORDERED that MONA NAGUIB shall deliver the child to the airport from which the child is scheduled to leave at the beginning of each period of possession at least one hour before the scheduled departure time. IT IS FURTHER ORDERED that MONA NAGUIB shall surrender the child to a flight attendant who is employed by the airline and who will be flying on the same flight on which the child is scheduled."
On June 21, 2004, the Court also signed the Order Compelling Production [of the] Child, that appears in the minutes of this Court, and states in relevant part as follows:
IT IS THEREFORE ORDERED that MONA NAGUIB deliver the child ALLEN KARIM NAGUIB to DFW International Airport on June 21, 2004 by 2:30 p.m. at the Terminal B gate wherein the Air Canada Flight for Toronto will depart at 4:50 p.m.
The Court further finds that Respondent has failed to comply with and has violated the provisions of the orders set forth above as follows:
Violation 1. By intentionally failing and refusing to deliver the child to DFW International Airport on June 21, 2004 by 2:30 p.m. at the Terminal B gate wherein the Air Canada Flight for Torono was to depart at 4:50 p.m.
The Court based its contempt order on both the Divorce Decree and the June 21, 2004 order. For Mona to be held in contempt for violating the divorce decree that decree must specify what she must do to comply. Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). However, the divorce decree does not specify that Mona must deliver the child to Latif on June 21. Instead, the decree provides as follows:
6. Extended Summer Possession by LATIF NAGUIB
With Written Notice by April 1 — If LATIF NAGUIB gives MONA NAGUIB written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, LATIF NAGUIB shall have possession of the child for forty-two days beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice. These periods of possession shall begin and end at 6:00 p.m.
There is no dispute that Latif did not notify Mona in writing by April 1, 2004 of the dates he wanted possession of the child during the summer of 2004. The divorce decree also specifies the periods of extended summer possession as follows:
Without Written Notice by April 1 — If LATIF NAGUIB does not give MONA NAGUIB written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, LATIF NAGUIB shall have possession of the child for forty-two consecutive days beginning at 6:00 p.m. on June 15 and ending at 6:00 p.m. on July 27 of that year.
Consequently, because he did not provide notice by April 1, 2004 the decree provided that the dates for his possession were June 15-July 27, 2004. The decree does not specify any action that must be taken by Mona if Latif does not take possession of the child by June 15. Although the portion of the decree quoted in the court's findings in its contempt order establishes the procedure for Mona's delivery of the child to the airline, it does not modify the dates of possession otherwise established by the decree. Accordingly, since the decree established the dates of the extended summer posession and did not require her to deliver the child to Latif on any other date, Mona cannot be in violation of the divorce decree for not sending the child to Latif on a date other than those dates specified in the decree.
Latif also contends that the June 21, 2004 order was a clarification of the divorce decree and that the trial court could find Mona in contempt for not complying with the clarification. However, clarification of orders must be made by the procedure established in § 157.423 of the Family Code which provides as follows
(a) A court may not change the substantive provisions of an order to be clarified under this subchapter.
(b) A substantive change made by a clarification order is not enforceable.
To constitute a clarification, the original order must not be specific enough to be enforced by contempt. Tex. Fam. Code Ann. § 157.421 (Vernon 2002). Although a court does retain the inherent power to clarify, interpret or enforce a provision of a divorce decree, a court may not set aside or alter a judgment after the expiration of its plenary power, and an order attempting to do so is void. Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex.App.-Tyler 1998, pet. denied) A court may not change the substantive provisions of an order to be clarified, and a substantive change is not enforceable. Id. Respondent contends that the June 21, 2004 order was a clarification of the decree because the decree did not establish what would happen if Latif did not follow the procedures in the decree for either specifying a date for possession of their son or picking him up on the specified date. However, the Naguib's divorce decree is specific enough to be enforced by contempt because it specifically provides for Latif's method of selecting the extended summer possession period and for the dates of the extended summer possession if he does not follow the selection method in the decree. By requiring Mona to deliver the child to the airport on a date that was not specified in the decree, the court's June 21, 2004 order created a term that did not exist in the decree. As a result, the order is not enforceable as a clarification because the change made by the June 21, 2004 order was substantive. Tex. Fam. Code Ann. § 157.423 (Vernon 2002); Lundy, 973 S.W.2d at 689. The only way to make substantive changes to the decree was by the procedure established in TEX.FAM.CODE ANN. § 156.001 et. seq. (Vernon 2002) for modification of the decree. Latif does not contend that he followed those procedures or that the June 21, 2004 order constitutes a modification of the decree. Consequently, we find that the court's divorce decree does not contain terms supporting the order of contempt and that the June 21, 2004 order made substantive changes to the decree and is not enforceable. Accordingly, we conclude that the order of contempt is void because it is based on an unenforceable order. Ex Parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983) (orig. proceeding); In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio 2003, orig. proceeding).
In addition to changing the date of the father's possession of the child, the June 21, 2004 order also made other substantive changes in the divorce decree.
Based on the foregoing, we conclude that the trial court's judgment of contempt and commitment order signed July 12, 2004 is void. We grant Mona Naguib's petition for writ of habeas corpus and order her unconditionally released and discharged from the custody of the Sheriff of Collin County pursuant to, and only from, the commitment order dated July 12, 2004 issued by the 380th Judicial District Court of Collin County in cause number 380-50695-02 styled In the Interest of Allen Karim Naguib.