Opinions, December 3, 2015

If you couldn’t make it to the HBA’s holiday party last night, you missed a charming soiree and great honor for Pam Hunt, the 247th’s exemplar coordinator and recipient of this year’s professionalism award.

This morning, the Fourteenth Court of Appeals issued its published opinion in In re Baden, No. 14-15-00698-CV, in which Ms. Baden challenged an order of contempt entered by the 328th in Fort Bend County. The Court of Appeals sustained the challenge in part and denied it in part.

Mother and Father were not married. In November 2013, Judge Farr in the 312th Harris County Judicial District Court appointed both parties JMCs and named Mother as primary with the exclusive right to designate the residence of the child in Texas and New York. The case was later transferred to Fort Bend.

In May 2014, Father filed a motion for enforcement for possession and access and, alternatively, to modify. He alleged 29 violations including failing to deliver the child to the airport in January 2014 for a four-day visit in New York. Father requested Mother be held in contempt and that he be awarded make up time. He also asked for a modification to be named primary.

In her response, Mother alleged that she was not required to put the child on the plane because Father did not buy tickets.

At the conclusion of an evidentiary hearing in December 2014, the AJ found Mother in contempt for not turning over the child and sentenced her to 60 days’ confinement, suspended upon compliance. He granted Father 62 days of make up possession and also awarded attorney’s fees of about $5,000 (enforceable by contempt), which included the price of airline tickets and $300 cancellation fee.

The Court of Appeals found that Father complied with the order in regards to the purchase of tickets. However, the Court of Appeals found: 1) that the trial court erred in ordering attorney’s fees enforceable by contempt because the testimony on fees was not segregated between work on the enforcement and work on the modification; 2) 62 days of make up time for a missed four day visit was too much, as the Tex. Fam. Code sec. 157.168 requires the trial court to award make up time in similar amounts; and 3) the trial court erred by awarding Father a $300 cancellation fee reimbursement that he did not ask for at trial.

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