Due process requires that a suitable judgment of contempt is necessary in order to imprison a person for contempt of court. “Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (1959). A judgment of contempt is a court order finding the confined person in contempt for violating the court’s order. One purpose of a contempt order is to notify the contemnor of how he has violated the provisions of the previous order. In re Nesevitch, 93 S.W.3d 510, 513 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). Thus, it is well-established that a contempt order must clearly state how the court’s earlier order has been violated. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.1997).
CaseLaw
The contempt judgment must specify how the person accused of violating the orders violated the orders with specificity. In In Re Alexander, the Court found the contempt judgment deficient because although it specified the exact date when each child support payment was due. In re Alexander, 243 S.W.3d 822 (Tex. App. 2007). Further in In Re Alexander, the Court found that since the enforcement judgment, didn’t exactly quote the underlying order the enforcement judgment was deficient. In that case, the exact, ambiguous, language of the underlying order was modified to make it more specific. However, the appellate court realized the change and cited it as a ground for releasing the person from jail.
Statutory Law
Sec. 157.166. states that:
CONTENTS OF ENFORCEMENT ORDER. (a) An enforcement order must include:
(1) in ordinary and concise language the provisions of the order for which enforcement was requested;
(2) the acts or omissions that are the subject of the order;
(3) the manner of the respondent’s noncompliance; and
(4) the relief granted by the court.
(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent’s failure to comply with the order was found to constitute criminal contempt.
(c) If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement.
This section of the family code has undergone many revisions and in Re Builder summarizes the evolution:
2. The Evolution of Family Code § 157.166(b)
This proceeding turns on the current version of Family Code § 157.166(b), but some of the cases discussed below involve prior versions of that provision. Thus, we briefly review the evolution of § 157.166 to put the case discussions in context. In 1985, the legislature adopted Family Code § 14.33 concerning the required contents of enforcement orders. It provided, in pertinent part:Section 14.33. ORDER OF COURT. (a) Contents. An enforcement order shall contain findings setting out specifically and with particularity or incorporating by reference the provisions of the order, decree, or judgment for which enforcement was sought, and the time, date, and place of each and any occasion on which the respondent failed to comply with such provision . . . .
Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1162 (emphasis added).
We applied the 1985 version of the statute to a pair of cases involving a respondent who had been held in contempt for failing to pay child support. In one, we held that an enforcement order was void because it did not specify either (i) the provisions of the prior order that the respondent had violated or (ii) the time, date, and place of each occasion on which the respondent violated the prior order. Ex parte Durham, 708 S.W.2d 536, 537-38 (Tex. App.-Dallas 1986, orig. proceeding). In the other, however, we held that the omission of the place of the violation was not fatal to the contempt order because (i) the contempt order referred by date, volume, and page to the divorce decree establishing the child-support obligation and (ii) the divorce decree required the respondent to make his child-support payments through the Dallas County Child Support Office. Ex parte Conoly, 732 S.W.2d 695, 697 (Tex. App.-Dallas 1987, orig. proceeding). Under those facts, we concluded that the omission of the place of each of the respondent’s failures to pay did not make the enforcement order so ambiguous as to be unenforceable. Id.
In 1987, the legislature added the word “final” before the words “order, decree, or judgment.” Act of July 20, 1987, 70th Leg., 2d C.S., ch. 73, § 7, 1987 Tex. Gen. Laws 225, 229. In 1989, the legislature substantially rewrote § 14.33(a) as follows:
(a) Contents. An enforcement order shall contain findings setting out in ordinary and concise language the provisions of the final order, decree, or judgment for which enforcement was sought, the acts or omissions that are the subject of the order, the manner of noncompliance, and the relief awarded by the court. If the order imposes incarceration or a fine, an enforcement order must contain findings setting out specifically and with particularity or incorporating by reference the provisions of the final order, decree, or judgment for which enforcement was sought and the time, date, and place of each occasion on which the respondent failed to comply with the provisions
Act of July 16, 1989, 71st Leg., 1st C.S., ch. 25, § 27, 1989 Tex. Gen. Laws 74, 86 (emphases added).
Applying the 1989 version of the statute, the Texas Supreme Court twice granted habeas relief to a respondent who had been found in contempt for failure to pay child support because the enforcement order did not contain the required time, date, and place findings. Ex parte Garcia, 795 S.W.2d 740, 741 (Tex. 1990) (orig. proceeding) (per curiam); Ex parte Holland, 790 S.W.2d 568, 568 (Tex. 1990) (orig. proceeding) (per curiam). We also held that “[t]he punitive portion of an enforcement order that does not comply with the statutory requirements of section 14.33(a) of the Texas Family Code is void.” Ex parte Stanley, 826 S.W.2d 772, 773 (Tex. App.-Dallas 1992, orig. proceeding) (enforcement order did not sufficiently identify prior order that was being enforced).
In 1993, the legislature struck § 14.33(a)’s requirements that the trial court find the time and place of each violation:
. . . If the order imposes incarceration or a fine, an enforcement order must contain findings setting out specifically and with particularity or incorporating by reference the provisions of the final order, decree, or judgment for which enforcement was sought and the [time,] date[, and place] of each occasion on which the respondent failed to comply with the provision . . . .
Act of May 28, 1993, 73rd Leg., R.S., ch. 798, § 13, 1993 Tex. Gen. Laws 3169, 3174 (deletions from prior version indicated).
In 1995, the legislature repealed § 14.33 and enacted § 157.166, subsection (b) of which provided as follows:
(b) If the order imposes incarceration or a fine, an enforcement order must contain findings setting out or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent failed to comply with the order.
Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 182. Applying this version of the statute, we held that an enforcement order was void because it did not list the dates of each occasion when the respondent failed to pay child support as ordered or the amount of child support that came due on each date. Ex parte Pina, No. 05-97-01478-CV, 1998 WL 10222, at *1 (Tex. App.-Dallas Jan. 14, 1998, orig. proceeding) (not designated for publication).
Finally, in 1999, the legislature amended § 157.166(b), bringing it to its current form:
(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent’s failure to comply with the order was found to constitute criminal contempt.
Fam. § 157.166(b).
In Texas codes, the word must “creates or recognizes a condition precedent” unless the context necessarily requires a different construction or the statute itself provides a different construction. Tex. Gov’t Code Ann. § 311.016(3). And the ordinary meaning of date, in this context, is the day when an event happened or will happen. See In re Walkup, 122 S.W.3d 215, 217 (Tex. App.-Houston [1st Dist.] 2003, orig. proceeding) (citing Black’s Law Dictionary 400 (7th ed. 1999)); see also Date, The New Oxford American Dictionary (2001) (“a particular day or year when a given event occurred or will occur”).
Under the current version of the statute, at least one court of appeals has granted habeas relief because a contempt order did not “identify the date of any occasion when relator’s failure to comply constituted criminal contempt.” Ex parte Merrikh, 361 S.W.3d 209, 210 (Tex. App.-Houston [14th Dist.] 2012, orig. proceeding) (per curiam).
Finally, we note the legislative purpose of § 157.166(b) and its predecessors. A contempt order must contain specific findings to provide sufficient information for adequate review and to enable the contemnor to overcome the presumption of the order’s validity by proof, if any is available. Ex parte Conoly, 732 S.W.2d at 697. Another purpose of the statute is to protect the delinquent party from being prosecuted more than once for a particular unpaid child-support payment.
In Bilder, the person alleged to have violated the order complained that his contempt order did not contain the date of each violation, instead the court found as follows:
“Violation 5: For the month of January 2020, Stanislav Bilder paid $200.00, but failed to pay $1,200.00 of the $1,400.00 in child support due and owing to Olga Lesya Sytnianska Zedrick and violated the Order in Suit to Modify Parent-Child Relationship entered with the Court on December 19, 2019.
Thus, the actual date was not listed. Thus the Court released the contemnor because the specific dates were not listed in the order.