Failure to segregate fees means no contempt for failure to pay fees, and 62 days of makeup time was excessive

Archive, Blog, Brad M. LaMorgese

On December 1, 2015, the Houston Court of Appeals (14th District) considered whether attorney’s fees may be enforced by contempt in a custody enforcement case, in In re Braden. Mother denied Father possession when she failed to follow a court order and did not place the child on an airplane. Father then filed a modification and enforcement action and the court held Mother in contempt, awarded Father attorney’s fees that were enforceable by contempt, reimbursed Father for the missed flight, and awarded Father 62 additional days of possession.
Mother filed petition for writ of mandamus.

The Court of Appeals held that the trial court did not abuse its discretion by holding Mother in contempt for failing to surrender the child. The trial court awarded Father attorney’s fees that were enforceable by contempt, but the Court of Appeals held that violated the Texas Constitution for an unlawful imprisonment for a debt because Father did not segregate his modification fees from his enforcement fees. The Court of Appeals also held that a trial court is within its discretion to award additional periods of possession to compensate for the denial of court ordered possession or access. However, the 62 days was excessive because it was not “of the same type and duration” of the possession that was denied. In this case, the Mother had denied Father four days of possession.