Opinions, October 13, 2015: The War of the Roses

Remember the movie/book The War of The Roses? We may have found the appellate version of that tale.

The Fourteenth Court of Appeals has released its memorandum opinion in In re Harrison, No. 14-15-00370-CV, a habeas corpus original proceeding out of the 311th. If you’re thinking to yourself, didn’t we just read about a habeas out of the 311th last week, well, points for memory and studious readership. In fact, the parties in today’s habeas are the same as the In re Harrison case from a week ago. In further fact, this appears to be just the latest installment in a long saga between the parties. If you run the trial court cause number through the TAMES search, you get seven appellate cases. Three of these were Connie Harrison’s and were dismissed earlier this year, but I did not blog about them because they are one-page dismissal orders. Connie’s luck has apparently turned, however, as today’s opinion is her second win in a week. But, as noted below, we have not seen the last of the Harrisons.

Clifford Harrison filed for divorce from Connie Harrison in October 2006. The parties were initially divorced in June 2010, but their decree was reversed on appeal in April 2012, the first of the seven appellate cases. Harrison v. Harrison, 367 S.W.3d 822 (Tex.App.–Houston [14th Dist.] 2012, pet. denied) (noting that Clifford is an attorney and Connie has a law degree but has never practiced law). The parties signed an MSA in January 2014. An Agreed Interim Order was signed on April 10, 2014. In August 2014, Clifford filed an enforcement motion seeking to have Connie held in contempt of these three documents.

Crucially, on October 16, 2014, during the hearing on the enforcement, while Connie was testifying to her defense, Clifford’s counsel moved for directed verdict on the grounds that Connie had not filed an answer or any affirmative defenses in response to the enforcement petition. The trial court granted the motion for directed verdict and denied Connie’s requests to continue her testimony.

On October 24, 2014, the trial court signed an Order of Enforcement by Contempt that: 1) found Connie in contempt of the (reversed) decree, the MSA, and the Agreed Interim Order; 2) ordered her to pay fines for some of the violations and approximately $25,000.00 in attorney’s fees and costs; and 3) suspended Connie’s commitment to jail contingent upon her compliance.

On December 9, 2014, Clifford moved to revoke the suspension. After a hearing on December 18, 2014, the trial court revoked the suspension of commitment and committed Connie to jail until the $25,000.00 in fees were paid.

On January 2, 2015, Connie was ordered released and ordered to pay the fees on an installment schedule. Connie was released on January 5.

On March 27, 2015, Clifford again moved to revoke the suspension of commitment, alleging Connie had not made installment payments. That same day, the court signed an order for Connie to pay the fees in agreed installments and for Connie to be released by agreement of the parties, but that agreement would be revoked if she failed to comply.

On April 10, 2015, the trial court found Connie had violated the March 27, 2015 order, and ordered Connie confined. On April 27, 2015, Connie filed a petition for writ of habeas corpus and on April 29, 2015, the Court of Appeals ordered Connie released upon posting of a $500 bond.

In its analysis, the Court of Appeals cut straight to the heart of the matter, finding the entire October 24, 2014 enforcement order void because the trial court improperly denied due process to Connie by granting the directed verdict and truncating Connie’s defense testimony. Civil contempt proceedings are quasi-criminal in nature and, under the Fifth Amendment, the contemnor is entitled to an opportunity to establish a defense by offering evidence and argument.  The Court of Appeals noted it was “not aware of any authority that requires a respondent to file an answer to a motion for enforcement and plead affirmative defenses to have the right to testify or to avoid a directed verdict.” Accordingly, the entire October 24, 2014 order was ruled void and, consequently, all the orders thereafter predicated on it.

Additionally, the Court of Appeals held the October 24, 2014 order was void to the extent the order held her in contempt for violation of the MSA because the trial court had not ordered the parties to comply with the terms of the MSA. The Interim Agreed Order incorporated the MSA but, the Court of Appeals held, merely incorporating the MSA into an order does not constitute command language sufficient to hold a party in contempt. Further, even if Connie was sufficiently commanded to comply with the terms of the MSA, several of the purported violations occurred before the trial court issued the Interim Agreed Order and an alleged contemnor cannot be held in contempt for actions taken before the entry of the order.

Finally, the Court of Appeals held the October 24, 2014 order void to the extent it held Connie in contempt for a violation of the decree which was reversed and thus rendered “a legal nullity” by the Court of Appeals in 2012.

Of the seven appellate cases in the Court of Appeals arising from this one divorce, six are now disposed of. The one remaining case, No. 14-15-00430-CV, is ongoing, with Connie’s brief due yesterday. I imagine, but cannot say for certain, this is an appeal of a decree finally entered in this matter earlier this year. If that’s right, it’ll mean almost nine years passed from Clifford’s filing of his original petition to the entry of the final decree (assuming it is not also set aside on appeal). Like I said, it looks like we haven’t seen the last of the Harrisons.

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