Slavin Project: Sandefer II

On May 21, 1971, the Eastland court of appeals released Ex parte Sandefer, a follow up to an opinion of the year before which I previously blogged about. In Sandefer I, the court of appeals paraphrased (but did not quote from) the decree at issue which prohibited the parents from removing the children from the jurisdiction without the consent of the other parent or court order. It was undisputed the mother moved the children from Taylor County to Dallas County. While the trial court found her in contempt, the court of appeals reversed but it was not entirely clear why.

That confusion has been cleared up by Sandefer II, which presents what appears to be the exact same issues and in which the court of appeals quoted the decree: “(d) The minor children shall remain permanently within the jurisdiction of this Court and neither party shall remove said children from the jurisdiction of this Court unless by mutual agreement of the parties or further order of the court.” The court of appeals held that the trial court’s jurisdiction was not limited to the geographical restrictions of Taylor County  as that county had concurrent jurisdiction with the other District Courts in the county. In other words, the word “jurisdiction” as used in the decree was not a reference to a map, but to subject matter.

It is remarkable that the confusion and equivocation over the meaning of one word resulted in Mrs. Sandefer being jailed twice, necessitating two habeas corpus proceedings. The Sandefer cases and Slavin at bottom are cases about unclear language, but the Sandefer cases turn upon the multiple, plausible meanings of one word. Nowadays, orders and decrees spell out the geographic restrictions which hopefully eliminate this kind of unnecessary confusion.


Opinions, Feb. 24, 2015

The Fourteenth Court of Appeals has released two family law opinions today, Brandon Watson v. Meghan Clark, 14-14-00031-CV, and In the Interest of D.B.J., 14-14-00285-CV.

In the Interest of D.B.J. represents a conflict between contractual child support and the Texas Constitution’s prohibition on imprisoning someone for a debt. Tex. Const. art. I, sec. 18. The parents entered into an agreed final decree under which the father would pay “child support” until four years after the non-disabled child had turned eighteen and graduated from high school, i.e. extending child support through college. Six months after the child graduated from high school, the mother filed a motion for enforcement by contempt and did not assert any other theories of recovery such as breach of contract. The trial court denied the motion for enforcement, finding: 1) the support provisions were not enforceable by contempt because the child had turned eighteen and graduated from high school; and 2) that the agreement extending child support through college could be enforced by breach of contract remedies only if the agreement specifically so provided. In one of many footnotes, the Court of Appeals noted this second finding was premised on cases which relied on superseded sections of the Family Code and, as will be seen below, telegraphs the Court’s doubt on this holding. Relying upon the Supreme Court’s opinion in In re Green, 221 S.W.3d 645 (Tex. 2007) (per curiam), the Court of Appeals found that an agreement by the parties is enforceable by contempt only if the agreement meets the Family Code’s other requirements. Because the Family Code does not permit child support for a nondisabled child to be ordered after the child has turned eighteen and graduated from high school, the agreement at issue was not enforceable by contempt.

The most interesting thing about the opinion is the larger issues referenced in footnotes. First, the Court of Appeals specifically addressed an approach taken by the Dallas Court of Appeals in a similar case. In In re W.R.B., No. 0-12-00776-CV, 2014 Wl 1008222 (Tex.App.–Dallas, Feb. 20, 2014), that Court of Appeals found that the term “child support” as used in Chapter 154 does not include support for nondisabled children who have turned eighteen and have graduated from high school, and thus section 154.124 of the Texas Family Code which provides for agreements concerning child support does not apply. The Fourteenth Court of Appeals expressed doubt: “We are not convinced that this definitional approach to interpreting section 154.124 is valid” because, the Court of Appeals said, Chapter 154 contains no definition of “child support” and section 101.003(b) provides that in the context of child support, the term “child” includes “a person over 18 years of age for whom a person may be obligated to pay child support.” This definition, the Court of Appeals noted, applies to all of Title 5, including section 154.124. Then the Court of Appeals noted that the Supreme Court has previously interpreted section 154.124 (or its predecessor) as applying in the context of agreed child support past the age of eighteen and graduation from high school, which it would not have done if it agreed with the Dallas Court of Appeals’ approach. It is interesting that the Court of Appeals went out of its way to distinguish the reasoning of a sister court.

Secondly, the Court of Appeals noted somewhat ominously that the court was not reaching an opinion on whether the mother could “properly seek to enforce the support agreement through other means of enforcement provided in the Family Code” (such as obtaining a lien on real or personal property) or through a breach of contract action because “[w]e do note, however, with some concern, that this issue is not entirely clear given the current state of the law.” Stay tuned, folks.

Watson v. Clark is an unfortunate reminder that a motion to reinstate a case must be verified lest, as in this case, appeal rights be lost. Tex. R. Civ. P. 165(a)(3). Watson and Clark entered into an MSA before trial. The mediator filed a mediation disposition report representing the parties had settled; Watson did not appear for trial and the trial court dismissed the case for want of prosecution. Watson then filed two motions, both unverified: 1) a motion to enter an order on the MSA; and 2) a motion to reinstate the case. The trial court denied the motion to reinstate (which the Court of Appeals ruled was a void order). Watson then appealed the order DWOPing the matter. The Court of Appeals cited the Supreme Court’s holding that an unverified motion to reinstate does not extend appellate deadlines and thus the motions did not extend Watson’s appellate deadlines (even if the motion to enter judgment on the MSA was construed as a motion to reinstate the case). Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). Because Watson’s notice of appeal was not timely filed, the Court of Appeals lacked appellate jurisdiction.

Slavin Project: Ex Parte Sandefer

After the Pope Trilogy of 1967, Slavin was not cited by another case until Ex parte Sandefer, 461 S.W.2d 193 (Tex.App.–Eastland 1970, no writ) (per curiam). It’s a bit of a conundrum.

The opinion is short, not even 800 words. Though it cites Slavin for the proposition that to be enforceable by contempt, a decree must “set out the details of compliance in clear, specific, and unambiguous terms,” the opinion does not quote or provide the specific language at issue in the decree. It paraphrases the decree and states that the decree prohibited the parents from removing the children from the jurisdiction without the other parent’s consent or a court order. Yet the mother, Darlene Sandefer, moved with the children from Taylor County, Texas, to Dallas County–conduct the trial court found was in contempt of the judgment. Moving with the children to another county without the other parent’s consent or court permission might appear to violate the provisions, yet the court of appeals ordered Mrs. Sandefer discharged and held that the decree did not in clear, specific and unambiguous terms “make it mandatory that Mrs. Sandefer and the children live at the Abilene address.” Without knowing what the decree actually said, it’s hard to ask the question of whether or not the court of appeals got it right, much less divine some guidance for future cases.

Confusing Waters & Amorphous Doctrines

Today while researching an issue concerning premarital agreements, I happened upon and was amused by the following concurrence in Hunter v. Clark, 687 S.W.2d 811 (Tex.App.—San Antonio 1985, no writ) penned by former Chief Justice of the 4th District Court of Appeals Carlos Cadena (1917-2001) which states, in its entirety: “I concur in the result.  The case involves only the interpretation of a written contract.  I see no reason to embark on an excursion leading us into the confusing waters engulfing the amorphous doctrine of waiver.”

But what an interesting excursion it could be.

“I think the world of him, but he’s sometimes wrong.”

On Thursday, February 12, 2015, I had the pleasure of attending the HBA Appellate Section’s luncheon which featured a panel of two past Texas Supreme Court Chief Justices (CJ Wallace B. Jefferson and CJ Thomas R. Phillips) and the present Chief Justice Nathan L. Hecht. Chief Justices Jefferson and Phillips have returned to private practice, but shared fond memories of their time on the court. Justice Phillips in particular shared anecdotes about when the court was so budget-strapped that it did not even have a copier. Justice Jefferson was praised for his work in spearheading the effort to establish the Equal Access to Justice Commission.

My favorite moment, however, was when Chief Justice Hecht jokingly noted that while he thinks the world of Chief Justice Wallace, “he’s sometimes wrong.” It was also noted that Chief Justice Hecht and former Justice Doggett did not often agree and that the Justices refer to each other in conference as “Justice” and not by first names to help maintain professional decorum.

Opinions, Feb. 12, 2015

The Fourteenth Court of Appeals released one family law opinion yesterday, a one-page denial of petition for writ of mandamus in In re Harrison, No. 14-15-00054-CV. The opinion simply stated the Relator had not established her burden to demonstrate her entitlement to mandamus relief. Out of curiosity, I pulled up the brief. In the trial court, the 311th Judicial District, Relator had moved to dismiss her spouse’s motions for enforcement. According to Relator (no response brief was filed), Judge Franklin permitted the movant to amend his motions. Relator argued the judge abused her discretion by failing to dismiss the motions for enforcement.

The Pope Trilogy of ’67

The estimable Texas Supreme Court Justice Jack Pope (b. 1913) authored Slavin and the majority opinions in the first two cases which cited it in 1967, Ex parte Hooks, 415 S.W.2d 166 (Tex. 1967) and Ex parte Conway, 419 S.W.2d 827 (Tex. 1967). Justice Pope was appointed Chief Justice of the Texas Supreme Court in 1982 (the position in which he served until his retirement in 1985) but in 1967, when Slavin was handed down, he was just an associate justice who had been on the court for two years.

Slavin was issued on March 1, 1967. Its successor, Ex parte Hooks, three weeks later on March 22. While Slavin was evidently unanimous, Hooks was quite controversial with four justices dissenting and two justices, Justice Smith and Chief Justice Calvert, filing dissents. The first dissent, authored by Justice Smith, was joined by three other Justices–Chief Justice Calvert, and Justices Smith, Greenhill, and Steakley. The second dissent was authored by Chief Justice Calvert and joined by Justices Greenhill and Steakley. (Thus Justice Smith did not join the Chief Justice’s dissent for whatever reason.)

In fact, Slavin is not cited by the Pope-written majority, but by Chief Justice Calvert in the second dissent (making the title of this blog post a bit of a cheat). The majority did not cite Slavin because the relator did not challenge the specificity of the language of the underlying contempt judgment. Earl Hooks, like Eugene Slavin, had been ordered to make child support payments until his children turned eighteen. He had fallen behind in his payments and, before the children turned eighteen, was found in contempt for a sum certain of arrears. Indeed, the judgment held him in continuing contempt until such arrears were paid in full. Mr. Hooks dutifully made monthly payments until the children turned eighteen whereupon he argued the district court lacked authority to enforce the judgment. The sole issue asserted in his original habeas corpus proceeding was whether or not the district court could enforce the judgment after the children turned eighteen. Reviewing Article 4639a, the controlling statute at the time, the majority found it could. It also noted that to hold otherwise would reward a spouse behind on payments for hiding out and evading service until the children reached eighteen. “We should cautiously attribute such reasoning to the Legislature.”

The first dissent, authored by Justice Smith and evidently joined by the other three dissenting justices, argued the contempt judgment was not enforceable by contempt because it was an agreed judgment. This strikes me as an odd argument as the contempt judgment–whether agreed or not–clearly states repeatedly that Mr. Hooks was in contempt. I look forward to seeing if this distinction is ever raised in future cases. Further, the dissent admonishes Mr. Hooks’ former spouse, perhaps stridently, for “harassing” him with a contempt action when she “should have filed a suit in [sic] behalf of the child to collect the $4,070.00 delinquency.” I doubt this course would have been fruitful, however, as Ms. Hooks had already filed the enforcement action to find him in contempt in the first place. Even if she had taken that course and procured a judgment, she would still need to enforce it, which is where she was before she filed her contempt action.

The second dissent, authored by Chief Justice Calvert and joined by two other justices, argued that the contempt judgment was void for two reasons: 1) the judgment was not definite and certain enough; and 2) the trial court lost jurisdiction of the subject matter when the contempt judgment was entered. As mentioned above, Mr. Hooks’ sole issue in his habeas proceeding was whether or not the district court had jurisdiction to enforce the contempt judgment after the children turned eighteen, and did not contest whether or not the contempt judgment was specific enough. Obviously, Mr. Hooks would (almost certainly) not be able to argue that the judgment did not comply with Slavin because Slavin was issued just three weeks before the opinion in Ex parte Hooks. Nonetheless, Chief Justice Calvert argues the contempt judgment was void and cites the Slavin opinion in support. Indeed, had Mr. Hooks argued that the contempt judgment was insufficiently specific, he might have been successful because, as Chief Justice Calvert states, the language of the contempt judgment is not exactly crystal clear.

Six months after the Supreme Court issued Ex parte Hooks, the court issued its unanimous opinion in Ex parte Conway, 419 S.W.2d 827 (Tex.1967). Conway is not a family law case, but an outgrowth of a dispute over a thirty-foot strip of land. The trial court found relators in contempt for violation of an expired temporary order or, stated another way, there was no order which extended the injunction to the time of the violation. The Supreme Court agreed, citing Slavin for the proposition that unless the relator has notice, he cannot be held in contempt which is a much broader point than Slavin‘s demand for clear, unambiguous contempt orders.

Thus at the close of 1967, Ex parte Slavin had been cited twice, but once in a dissent and once in a non-family law case but not for propositions concerning the necessary specificity in the language of contempt orders.