In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-24-00212-CV

___________________________

Original Proceeding

467th District Court of Denton County, Texas

Trial Court No. 2013-30025-211

Before Sudderth, C.J.; Kerr and Wallach, JJ.

Memorandum Opinion by Justice Wallach

IN RE M.W., Relator
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MEMORANDUM OPINION

In this original proceeding, Relator M.W.1 (Father) seeks mandamus relief from 

the trial court’s April 30, 2024 Order denying his First Amended Motion for 

Enforcement of Possession and Access (Father’s Motion). Father raises two issues: (1) 

whether the trial court arbitrarily altered its prior Order in contradiction to the plain 

language of the final Order and (2) whether the trial court abused its discretion in 

finding the final Order ambiguous and unenforceable. Because the record is

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

petition.

I. BACKGROUND

Since their divorce,2 Father and Real Party in Interest S.W. (Mother) have 

entered into multiple mediated settlement agreements leading to multiple 

modifications of their respective parent–child relationships with their two children.

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The trial court signed Orders modifying Mother’s and Father’s rights, duties,

1

To protect the identities of Relator and Real Party in Interest’s minor child, we 

identify the parties by their initials only. See Tex. Fam. Code Ann. § 109.002(d).

2

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

a Final Decree of Divorce signed on September 17, 2014.” However, no such divorce 

decree appears in the record Father included with 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 that Father was seeking to enforce in the trial court pertain only to the younger 

child, B.W.
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possession of, and access to the children in 2016 and 2022. 

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

April 9, 2024. In his Motion, Father alleged that Mother had repeatedly violated the 

2016 and 2022 modification Orders. At a hearing on 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 Motion.

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Father then filed a Petition for Writ of Mandamus and an Emergency Motion 

for Temporary Relief with this court. We denied the motion for temporary relief on

May 10, 2024.

II. DISCUSSION

Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25 

(Tex. 2021) (orig. proceeding). The party seeking mandamus 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 heading, “(c) Periods of Possession for [the 

child],” and the subheading, “Waiver of Obligation to Surrender the Child,” the trial 

court Ordered “that [Mother]’s obligation to surrender the child . . . to [Father] shall 

be conditioned upon [the child]’s expressed desire for [Father] to exercise any such 

possession period” and further Ordered that [Mother] “shall not interfere with 

[Father’s] periods of possession that are agreed to between [the child] and [Father].”

This language is immediately followed by the heading, “(d) Holidays Unaffected by 

Distance,” and the language, “Notwithstanding the periods of possession of [Father] 

and [Mother] as Ordered herein above, [Father] and [Mother] shall have the right to 

possession of the children as follows.” What “follows” is a strict possession schedule 

for Christmas, Thanksgiving, spring vacation, the child’s birthday, Father’s Day, and 

Mother’s Day. As part of its ruling on Father’s Motion, the trial court stated, “Based 

on 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.”
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remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig. 

proceeding). To justify mandamus relief, the relator must provide the appellate court 

with a sufficient record to establish his relief. Walker v. Packer, 827 S.W.2d 833, 837

(Tex. 1992) (orig. proceeding); see also Tex. R. App. P. 52.7.

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

that he has no adequate remedy at law. He contends that the trial court abused its

discretion by (1) “failing to interpret the term ‘notwithstanding’ in accordance with 

it[]s commonly accepted meaning and to give effect to that meaning as it pertains to”

the 2022 Order and thereby finding the 2022 Order to be ambiguous and 

unenforceable, and (2) “clarifying the [2022 o]rder to hold that the ‘notwithstanding’

carve-out . . . is actually a vestigial provision and that all periods of possession are 

subject to the desire and agreement of the subject child.” Mother responds that

ambiguous language in the Order “necessitated clarification,” that the trial court’s 

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

did not clearly abuse its discretion. She also argues that Father has an adequate 

remedy by appeal. 

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

Order. Tex. Fam. Code Ann. § 157.001. In Father’s Motion, he asked the trial court to

hold Mother in contempt. It was Father’s burden to prove 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 Excellence, Inc., No. 
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05-18-00672-CV, 2018 WL 6566644, at *5 (Tex. App.—Dallas Dec. 13, 2018, 

orig. proceeding) (mem. op.) (“At a hearing on a motion for contempt, the movant

first has the burden of introducing evidence that the respondent did not comply with 

the terms of the Order sought to be enforced.”); In 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 enforcement “had the burden to prove his case in

chief”); 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 has the burden 

of introducing evidence that the respondent did not comply with the terms of the 

Order sought to be enforced.”). 

Here, Father did not bring forth a factual 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, he did not verify his Motion or attach any 

exhibits that proved up the alleged violations to it.5 Further, the reporter’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 was received 

5

Additionally, we note that, in his Motion, Father requested “that for each

violation alleged . . . , [Mother] be held in contempt, jailed for 60 days, and fined up to 

$500, and that each period of confinement run and be satisfied concurrently.” 

Contempt Orders that involve commitment are considered “criminal” contempt 

Orders and must be supported by proof beyond a reasonable doubt of “(1) a 

reasonably specific order; (2) a violation of the order; and (3) the willful intent to 

violate the order.” Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. 

proceeding); see In re Braden, 483 S.W.3d 659, 664 (Tex. App.—Houston [14th Dist.] 

2015, orig. proceeding) (per curiam). 
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by the trial court at the hearing.

Because the record before us is totally devoid of evidence that Mother violated

the 2022 Order, Father has failed to meet his burden to bring forth a sufficient record.

Accordingly, we overrule both of Father’s issues.

III. CONCLUSION

Having overruled Father’s issues, we deny his petition for a writ of mandamus.

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/s/ Mike Wallach

Mike Wallach

Justice

Delivered: June 6, 2024

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On June 5, 2024, Father filed a Motion for Expedited Ruling in this court. His 

Motion for Expedited Ruling is denied as moot.