## In the Court of Appeals Second Appellate Dis trict of Texas at Fort Worth

___________________________ No. 02

- 24

- 00212

- CV

___________________________

Original Proceeding 467th District Court of Denton County, Texas Trial Cou rt No. 2 013

- 30025

- 211

Before Sudderth, C.J.; Kerr and Wallach
, J J. Memorandum Opini on by Justice Wallach 

### I N RE 

### M.W. , Relator2 MEMORANDUM OPINIO N
In this original proceeding, Relator M.W. 1 (Father) seeks mandamus relief from

the tri al court’s April 30, 2024 Order denying his Firs t A mende d Mo tion fo r

Enforceme nt of Possession and Access (Father ’ s Motion)

. Fathe r r ais es two issues : (1)
whether the trial court arbitrarily altered its prior Order in contradiction to the plain

lan guage of the final Order and (2) whether the trial c ourt abu sed its discretion in
finding the final Order ambiguous and unenforceable

. Because the record is

insufficient to show Fathe r ’ s entitlement to the relief he seeks
, we deny Fathe r ’ s

pet ition

.
I . BACKGROUND

Since their di vorce, 2 Father and R eal Party i n Inter es t S

. W . (Mother ) have
entered into multiple mediated settlement agreements leading to multiple
modifications of their respective p arent

– child relationships with their two children

. 3

The t rial court si gn ed Order s modi fy in g Mo ther ’ s an d Father ’ s ri g hts
, duties
,

1 To prot ect the id entities of Relator a nd Real P arty i n Inter es t ’s mino r child
, we ident if

y the parties by th eir initia ls only

. S ee T ex. Fam. Code A nn. § 109.002(d )

.

2 Father states in his mandamus petition that he and Mother “ were divorced via

a Final Decree of Divorce signed on Septem ber 17, 2014

. ” Ho wever, no su ch divorce de cree appears in the record Fath er incl ud e d wit h his petition

.

3 Mother and Father are the parents of two children
, the older of whom turned 18 prior to the commencement of this mandamus proceeding

. The provisions of the Order th at Father was seeking to enforce in the tr ial co ur t pertai n only to th e y ounger chil d, B. W.3 possession of
, and access to the children in 2016 and 2 022

.
Father filed his enforcement motion on February 9, 2024, and amended it on April 9, 2024

. In his Motion
, Father alleged that Mothe r ha d r epea tedly viola ted the

2016 and 2022 modific atio n Order s

. A t a hearing o n April 30, 2024
, the trial court

found that “ the terms of the [ 2022 ] Order in regards to holiday access and possession
[ were ] ambiguous ” and denied Father ’ s Moti on

. 4

Father then filed a P e titio n for Writ of Mandamus and an Emer genc y Motion
for Temporary Relief with this court

. We denied the motion for temporary relief on
May 10, 2024

.
II . DISC USSION

Man damus r elief is an extraordinary remedy

. I n re Acad., Ltd. , 625 S.W.3d 19, 25
(Tex. 2021) (orig. proceeding). The party seeking mand amus relief must show both
that the trial court clearly abused its discretion and that the party has no adequate

4 In the 2022 Order
, under the head in g , “ ( c) Periods of P ossession for [the child]
, ” and the subheading
, “ Waiver of Obligation to Surrender the Child
, ” the trial

cour t Order ed “ that [ Mother ]’s obl igation to surren der the c hild

. . . to [ Fathe r ] shall be conditioned upon [the child]’s expres se d desire for [ Father ] to exercise any such possession period ” and further Order ed that [ Mother ] “ shall not interfere with [ Father ’s ] periods of possession that are agree d to be tween [th e child] and [ F ather ]

. ” This l an gu age is immediately followed by the heading
, “ (d ) Holidays Unaffected by Distance
, ” and the language
, “Notwithstanding the periods of possession of [ Father ]

a nd [ Mothe r ] as Order ed herein above, [ Father ] and [ Mother ] shall have the right to possession o f th e children as foll ows

. ” What “follows ” is a strict possession s c h edule for Christmas, Thanksgiving, spring vacation, the child ’s birthday, Fath er ’s Da y, a nd Mo t her’s Day

. As part of its ruling on Father ’ s M otion
, the trial co ur t stated
, “ Based

o n everything that ’ s in this Order , I would clarify that the terms under C regarding agreement of the child apply to the terms in section D. ”4 r emedy by a ppeal. In re Allst ate Indem. Co. , 622 S.W. 3d 870, 875 (Tex. 2021) (orig.
proceeding)

. T o justify mand amus relief
, t he relator mu st p rovide the appellate court

with a sufficient record to establis h his relief. Walker v. Packer , 827 S.W.2d 833, 837
(Tex. 199 2) (ori g. proceedi ng) ; se e also Tex. R. App. P. 52.7.

In his petition, Father argues that the trial court has abused its discret ion and

that he has no adequate remedy at law

. He contends that the trial court abused its

discretion by (1) “ faili ng t o inter pre t the te rm ‘ notwithstanding ’ in accordance with

it [ ] s commo nly accepted meaning and to give effect to that meaning as it pertai ns t o ”

the 2022 Order and thereby finding the 2022 Order t o be ambiguous and

unenforceable
, and (2 ) “ clarifyi ng the [ 20 22 o ] rder to hold that the ‘ notwithstanding ’

carve

- out

. . . is actually a vestigial provisio n and that all periods of possession are

sub ject to t he desire and agreement of the subject child

. ” Mother responds that
ambiguou s language i n the Order “ nece ssi tated cl arification
, ” that the trial court’s

clarification was reasonable in light of the evide nce , and that therefore the trial court

did not clearly abuse its discretion

. She also a r gues that Father has an adeq uate

r emed y by ap pea l

.
A trial court may enforce by contempt any provision of a temporary or final

Order

. Tex. Fam. Code Ann. § 157.001

. I n Father ’ s Motion
, he aske d the trial court to

h o ld Mother in contempt

. It was Father ’ s bu rden to p rove in the trial court that

Mother should be held in contempt

. See In re Aslam , 348 S.W.3d 299, 303 (Tex.
App.

— Fort Worth 2011, orig. proceeding ) ; see also In re Pursuit of Excel lence, Inc.
, No.5 05

- 18

- 00672

- CV, 2018 WL 6566644, at *5 (Tex. App. —D allas Dec. 13, 201 8,
orig. proceeding ) (mem. op.) (“ At a hearing on a motion for contempt , the movant

first has the burden of introdu cing evidence that the respondent did n ot co mply with

the terms of the Order sought to be enforced .” ); I n re W.L.C.
, No. 2- 03

- 103

- CV, 2004
WL 1218955, at *1 (Tex. App.

— Fort Worth June 3, 2004, orig. proceeding ) (mem.
op.) ( stating that movant for enforceme nt “ had the burden to prove his case in

chie f”); Ex parte McIntyre , 730 S.W.2d 411, 417 (Tex. App.

— San Antonio 1987, orig

. proceeding ) ( “At a hearing on a motion for contempt, the movant first h as the burden
of introducing evidence that the respondent did not comply with t he terms of the

Order sough t to be enforced.” ).

Here
, Father did no t bring forth a fa ctual record sufficient for us to assess the

trial court ’s ruling

. Although he detailed in his Motion how Mother had allegedly

violated the trial court ’s 2022 Order , h e did not verify his Moti on or att ach any

exhibits that proved up the a lleged violations to it. 5 Furthe r, the repo rter ’ s record of
the April 30 hearing that both Mother and Father have provided shows the trial

court ’s ruling

— and nothing else

. We have no idea what, if any, evidence wa s rece ived

5 Additionally , we note that , i n his Motion
, Father request ed “ that for each vio la ti on alleg ed

. . . , [ Mot her ] be held in contempt, jail ed for 60 days, and fined up to $500, and that each period of confinement run and be satisfied concurren tly .” Contempt Order s that involve c ommitment are considered “criminal” contempt Order s and must be suppor t ed by proof bey ond a reasonable doubt of “ (1) a reasonably specific o rder ; (2) a violation of the o rder ; and (3) the willful intent to vi olate the o rder .” Ex parte Chambers , 898 S.W.2 d 257, 259 (Tex. 1995) (orig. proceeding); see In r

e Brad en , 483 S.W.3d 6 59, 664 (Tex. A pp.

— Houston [14th Dist.] 2015, orig. proceeding) ( per curiam)

.6 by the trial co urt at the hearing

.
Be cause the record before us is totally devoid of evidence that Mother violated

the 2022 Order
, Father ha s f aile d to meet his burden to br ing forth a sufficient record

.
A ccordingly, we overrule both of Fathe r ’ s i ssue s

.
III. CONCLUSION

H avin g overr uled Father ’s iss u es , we deny his petition for a writ of m andamus

. 6

/s/ Mike Wallach

Mike Wallach Justice

Delivered: June 6, 2024

6 O n June 5, 2024
, Father filed a Motion for E xpedited R uling in this court

. Hi s Motion for Expedited Ruling is denied as moot.