## In the Court of Appeals Second A ppellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00011

- CV

___________________________

Original Proceeding 367th District Court of Denton County, Texas Trial Cou rt N o. 16

- 08532

- 431

Before Kerr, B ird well, and Walker, JJ. Opinion by Justice W alker 

### I N RE 

### D.L. , Relator2 OPINION

The trial court found Mother 1 in contempt for violating its possession

- and

access o rder and assessed her p unishment at commitment to ja il for sixty days for

eac h of si x viol atio ns, probated the first t w enty days o f each punish ment , and then

ord ered her to report to the sheriff to serve the remaining forty days in jail with e ach

punishm ent to run conc urrently. Before re porting to the sh er iff , Mother filed this

pe ti tion f or writ of mandamus and a motion to stay the trial court ’ s contempt

- a nd

commitment order. We grant ed the stay pending review of Mother ’ s petit ion.

I n Mother ’ s first issue, r egarding the first five violations, Mother con te nds that

she complied wit h the p o ssession

- and

- access order when s he surrendered the children

to Father

. I n her s econd iss ue, she argues that to the extent that she did not com p ly,

her nonc ompliance was involuntary beca use the children refused to go with Fath er.

I n her third iss ue , r egarding the si xth violation

— Mother ’ s failure to compl y

with the possession

- and

- acc es s o rder ’ s right of fir st refusal

— Mother contends that

t h is provision is too vague to enforce by contempt.

In issue four
, Mother argues that to the extent any contem pt finding is vo id,

the punishment s for all the c onte mpt findings are void be cause the trial court assessed

but one punishment for all six violations.

1 We us e alias es t o iden tify the c hild ren , and we id entify family members by

t heir relat ion t o t h e child ren

. See Tex. Fam. C o d e Ann. § 109.002(d); Tex. R. Ap p. P. 9.8 (b)(2).3

Final ly, in issue five
, Mother maintains that because the contempt order is void,

th e award of attorney ’ s fees in Fa t her ’ s favor is al so void.

We hold that the trial court assessed separate punishments for each violation

, so each contempt finding and punishment stand s or falls independently o f the others.

W e hold that the re co rd sup ports t he trial cour t ’ s cont empt finding on the first

violation, so we need not address the remaining violations , all o f which carry the same

punishment as the first violation and run concurrently with it

. Because the c on tempt

order is not void, Mot her ’ s attack on the award of attorney ’ s fees fail s.

We overrule Mother ’ s issues and deny her petition for writ o f mandamus.

I. M A NDAMUS AS A REMEDY

Where a relator is not currently restr ained of h er liberty, a contempt ord er may

be challen ged in the co ntex t of a mandamus proceedi ng. See In re Long , 984 S.W.2d

623, 625 (Tex. 1999) (orig. proceeding) ; Rosser v. Squier , 902 S.W.2d 962, 962 (Tex.

1995) (orig. proceeding); In re Spates , No. 1 4

- 14

- 00603

- CV, 2014 WL 4262197, at * 2

– 3

(Tex. App.

— Ho uston [14th D ist. ] Aug. 28, 2014, orig, p roceeding) (per curiam)

(citing Snodgrass v. Snodgrass , 332 S.W.3d 653, 660, 663 (Te x. App.

— Houston [14th

Dist.] 2010, orig. proceeding) 2 ).

We grant the extraordi nary relief of mandamus only when th e trial court has

clearly abus e d i ts discretion and the re lator lacks an adequate remedy at law, such as

2 Snodgrass was a consolida ted appeal and m andamus proceeding. 332 S.W.3d at 655. On th e appeal portion, n either p arty fi led a petition fo r re view

.4

an appeal

. See In re State , 355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding) ; In re

Team Rocket, L.P. , 256 S.W.3 d 257, 259 (Tex. 2008) (orig. procee di ng) ; Walker v.

Packer , 827 S .W.2 d 833, 839 (Tex. 1992) ( or ig. proceeding)

.

A trial court abuses its discretion if i t reaches a decision so arbitrary and

unreasonable th at it is a clear and prejudicial error of law or i f it fails to correctly

analyze or a pp ly the law to the facts. In re H. E.B . Grocery Co. , 492 S.W.3d 300, 302

– 03

(Tex. 2016) (orig. proceedi ng); Walker , 827 S.W.2d at 839

– 40 ; see also State v. Naylor
, 466 S.W.3d 783, 793 (Tex. 2015) (orig. proceeding) 3 (“A writ of mandamus is an

extraordinar y remedy available ‘to correct an ac tion of a trial judge who commits an

abuse of discretion or a violation of a clear duty under the law.’” (quoting State v.

Walker , 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding)) )

. We defer to a trial

court’s factua l determinations that have evi dent ia ry support, but we rev iew the trial
court’s legal determinations de novo. In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643

(Tex. 2009) (orig. proceeding).

I I

. PRELIMINARY MATTER

W e address M o ther ’ s fourth issue firs t. She cont ends that the tria l co ur t
assessed one punishm ent for all six violations.

If the trial court finds more than one act of conte mpt but assesses only one
punishment , a nd if one act is not punishable by contemp t, the n the entire judgment is

3 In N aylor
, the supreme court decided both an appeal and a petit i on for writ of mandamus

. 466 S.W.3d at 786.5

void. In re Hall

, 433 S.W.3d 203, 207 (T ex. App.

— Houston [14th Dis t.] 2014, orig.

proceeding

) (citing In re Henry , 154 S.W.3d 594, 598 (Tex. 2005) (orig . proceeding),

and In re Gabbai

, 968 S.W.2d 929, 931 (Tex. 1998) (orig. proceeding) ). In contrast, if

the t ri al court assesses a separate pun is hment for each act of cont empt, only the

invalid portion s are void. Id. (c iting Ex parte Rus sell , 875 S.W.2d 467, 470 n. 7 (Tex.

App.

— Austin 1994, orig. proceeding) , and Ex par te Linde r , 783 S.W.2d 754, 758 (Tex.

App.

— Da ll as 1990, orig. proceeding ) ). Vo id portions are severabl e: “ It is possible to

sever the invalid portion of a contempt judgment, leaving the remainder intact, if the

trial c ourt assesses a separate punishment for each i nstance of non

- compliance with

the u nd erlying order.” Rus sell , 87 5 S. W. 2d at 470 n. 7

.

Th us, i f Mother is correct and the t rial court assessed on ly one puni shment f or

all six violations
, and if she can show that any one violation is voi d, then the ent ire

orde r is void

. See Hall

, 433 S.W.3d at 207. T he contempt order pr ovides

,

The Court furth er fi nds that on the day of this hearing [Mother] had the ability to comply with the prior order of the Court.

Relief Granted

IT IS ADJUDGED that [Mother] is i n contempt for each separate violation enum erated above[, th at is, alle gation s one, two, three
, four, six, and seven]. The Court DENIES the request of contempt for alleged viol ation 5.

Criminal Contempt

IT IS ORDERED that [Mother] shall be confined in th e county jail of Denton County, Texas, for a period of 60 da ys as punis hment for violations 1, 2, 3, 4, 6, and 7.6 IT IS ORDERED that the first twenty (20) days from the date [of] th is order is signed are probated. After twenty (20) days following entry of thi s order, IT IS ORDERED that [Mother] shall tu rn herself

over to the Den ton Co unty Sheriff and [ M other ] is ORD[E]RED to serve forty (40) days on each count. The jail time for eac h violation shall run concurrently.

We construe the order in its entirety. See Coleman v. Ha ll um , 232 S.W. 296, 297 (Tex.

Comm ’ n App. 1921 , judgm ’ t ado pted ) ; Palomin v. Z arsky Lumber Co. , 26 S.W.3d 690,

695 (Tex. App.

— Corpus C hristi

– Edinburg 2000, pet. denied)

. The first paragraph

und er “ Criminal Contempt ” is admittedly a mbiguous, but t he second p aragr a p h

removes all a mbigui ty b y stating th at the puni sh ment is “ on each co unt ” and that “ jail

time for each violation shall run con currentl y. ” If the trial court assessed on ly one

global pu nishment, the need to specif y that the pun ishment is “ on each co unt ” and

that the punishments ar e running co ncurre ntly wo uld be unnecessary

.

This con struction is consiste nt with the trial court ’ s email ruling. After the

h earing on Father ’ s motion for enfo rcement , the trial c ourt sent to the par ties a n

email memorand um finding Mother in co ntempt fo r allegation s one, two, thr ee, four,

si x , and sev en , and “ for each violation
, ” it a ssessed Mother ’ s punish ment at six ty days

in the county jail, with all si x punishments to run concurrently. The trial cou rt

su spen ded the fir st t

wenty days subject to Mother ’ s co mpliance with all exi st in g

o rders.

We ov err ule Mother ’ s fourth issue.7

Having rejected Mother ’ s argument, if any one violation is valid, we need not

address the remaining five because e ven if they a re void, M o ther would still have to

serve jail time for the one v alid v iolatio n. Cf. 1717 Bi

sson net, L LC v. Loughhead

,

500 S.W.3d 488, 496 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) ( “ A question is

immaterial when it should not have been submitted or was properly submitted bu t has

been rendered immaterial by other find in gs. ” ); McDaniel v. Con t ’ l Apart m ents Joint

Venture , 887 S.W.2d 167, 170

– 71 (Tex. App.

— Dallas 1994, writ denied) (o p. on r eh ’ g)

( “ A trial court may

. . . disregard a jury f inding when ot her jury findings render it

immaterial. ” ).

Because we hold that the fir s t vi olation is valid, w e foc us our di scuss ion largely

there. In the first alleged v iolation , Father a ssert e d that on July 30, 2021, Mother

faile d an d refused to sur ren der the children to him a t 6:00 p.m. at her residenc e , as
required by the possession

- and

- acc ess order

.

I I I

. BACKG ROUND

A. T HE P OSSESSION O RDER

O n December 7 , 2018, Mother and Fat her entered into an agreed order

regarding possession and access to their two children, Andy and B ruce

. Father ’ s

poss ession started at 6:00 p.m. on the first , third, and fifth F riday o f eac h m onth and

end ed at 6:00 p .m. on the following Sunday, and d uring the regu lar sc hool y ear, he

also had possession on Thursday s beginning at 6:00 p.m. a nd end in g at 8:00 p.m.8

Mother was ordered to surrender the children to Fa ther at the beginning of each
period of Father’s possession at Mot her’s residence. 4

B. M O THER M OVES TO M ODIFY P OSSESSION

Abou t a year and a h alf l ater, i n June 202 0, Mot her filed a motion to modify the

par en t

– child rela tionship. This motion and the h earing on it are the prelud e

— or

pe rhaps t he springboard

— to Father ’ s later motion for enforcement

. In her motion, Mother alleged th at th e ci rc umstances o f the childr en had

mat erially and substantially changed but did not specify how they had changed

.

Moth er stated that she belie ved tha t she and Fath er would r each an agreement , b ut i f

she and Father di d not reach an agreement, she requested that (1) she have the

exclu sive right to consent to the children ’ s psychiatric and psycholog ical treatment
, (2) Mother and Father ’ s current co

- pa ren t i ng c ounsel or b e discha rged, and

( 3) Father ’ s p ossession and access to the children be by mu tual agreement only or,

al ternat ively, hi s possession and access be limited to no more than forty

- e ight

consecutive hours a t a time:

The circumstances of the ch il dre n, a conserv at or, or o ther party affected by t he order to be modified have materially and s ubstantially

4 Each paren t also had t he right of fi rs t refusal: “IT IS ORDERED that each pa re nt sh all have the right of first refusa l to care for the children when t he parent with pos session of the children will be away from the children overnight ( the ‘absent parent’), with ‘over night’ defin ed as between th e hours of 10:00 p.m. and 6:00 a.m.” The trial court found that Mother had violat ed this pro vision too, but be cause we hold that the c ontempt order is valid b ased on the fir st violation, we need not address the merits of the ri ght

- of

- first

- refusal findi ng

.9

changed sinc e the date of th e signing of the mediated settlement agreement on which the order to be modified is based.

[Mother] believes that the pa rti es w ill ente r into a w ritten agreement contain ing provisions for modification of the order providing for conservator ship, possession
, and access of the children. If such agreement is made, [Mother] requests that the Court c onfirm and adopt the agreem en t o f the par tie s, find th e agreement is in the be st interest of the children and render the ag reement as the Order of t he Cou rt.
If ag r eement is not reached, [Mother] requests that the orders currently in place be modified in the be st interest of the ch il dre n. Specific al ly, [Mot her] requests that the C ourt enter an order granting her the exclusiv e right to consent to psy chiatr ic and psy c holog ical treatment of the children and discharging Dr. Siegel from his current role as co

paren ting counselor for the p art ies. [Mothe r] further requests that the Court modify the terms for possession of and acces s to the children such th at [Fa ther ’ s] po s se ssion times be by mutual agreement of the parties, or in the alternative, entering a modi fi ed possession schedule th at pr ovides [Fath er

] with p eriods of possession tha t do not exceed more than forty

- eight consecu tive hours per period tak ing in to conside r ation the wishes and needs of the children and the circumstances of the parties.

C

. T HE H EARING ON M O THER ’ S M OTION

At t he June 23, 2021 hearin g on Mothe r ’ s motion, Fathe r call ed Dr. Linda

Threa t s, who had a Ph.D. in clinical social work and a m aster ’ s degree in social work

.

Dr. Threats had engag ed in counseling with Andy

, Bruce , F ather, an d Mother for

about one ye ar fro m lat e 201 7 until late 2018 with the goal of reuniting the two boys

with their f

ather

.

Dr. Threats a ddressed why the boys were estranged from Father:

[ F a ther ’ s attorney] Q.

. . . And can you tell us just generally how the p rocess went during the yea r in r eunification counseling, just how did it start, wh at were the issu es dur ing the middl e, and how did it end?10 A. It began in terms of jus t getting an understanding of the dynamics between the parent s, which was severely conf lictual. It was

-- betwee n the parents, i t was rea l ly a money i ssue

. The children were estranged in tha t they saw t h e f a ther as t he p r oblem. The fa t her ’ s job kept him away frequen t ly, whi ch d i d not help the proces s , which again

c r eated a lot of emot iona l distance and just

-- and not a

-- and lack of attachment

. The mother was overly involved with th e chil dren , and the chil dren were heavil y influenced by her

.

. . . . [ F a ther ’ s attorney] Q.

. . . Did you ever find anything that the children disclose d to you that justified t heir co nc er n , t heir estrange ment with their father?

A

. The y were no t real ly able to be speci fic

. And it ’ s not something new to me

. I think o t her people reviewing notes have said the same thing

. T he y we re

-- they th ought he wa s me an , and when the y

sa y mean, they wer e kind of vague in terms of the feelings that they had: “He t ak e s my phone. ” Or [,] “ [H] e makes me go to my room

. [ ”] “I don ’t like his fo od. ” S o t hose were the kinds of things , n othing t hat I

w ould cons i der that wa s a

-- a danger to the c hildren or out o f the ordi nar y necessar i l y f

or his temp e r ament

. On cross, Dr. Threat s elaborated,

[Mother ’ s atto rney] Q. You mentioned p reviously one of the problem s in the relationship between [F] ather a nd the boys was a lack of attachment?

A. Yes.

Q. Can you expla i n a little furt her wha t you mean?

A. The children became very

-- were having a lot of difficulty with their father. Emot

io nally they saw hi m as a very neg ative person. They saw him as mean. They were angry wi th him. But, a gain, whe n you tr ied to get t hem to b e more specifi c, it was not completely clear. I t was kind of vague

.11

Over Dr. Threat s ’ s year of involvement, s h e estimated that s he h ad engaged in

over tw ent

y session s with the family and that she inte racted separately with F ather

ab ou t twelve times to teach h im “ Lov e and Logi c. ” Father completed t h e “ Love and

Logic ” coun seling.

Dr. Threat s also had on e

- on

- one se ssions wi th Mothe r. From these sessions,

Dr. Threat s d i scovered that Mother was attempti ng to barter access to t he c hild ren in

exchange for more fin ancial help from Father:

Q. W ha t did [Mother] tell you about he r willingnes s to be a p art of th e solution?

A. When we began the process , she was quite open to it

. She also talked to me about a level of trust tha t she had wit h me

. Q.

. . . And how did that change if at all?

A

. I t changed over a period o f t i me in relationship to not being able to a ddress the position that she was in

. Q.

. . . And did she ever tell you about what she was l ooki ng for i n exchange?

A

. Sh e was very clear, a nd I thin k Ms

. Shultz [(the children ’ s

counse lor)] was a part of that meeting when that occu r red too

. I t was a financia l issue, and I believe she s aid if he woul d t ake care of the fi n a n ces , t hen she would support h im

. Q. What type of finances did y ou believe t hat she was talking about at t he time?

A. Becau se of the litigious nature of cou r t , I beli eve what she was upset about , if memory ser ves me correctly, is that she had

-- her income h ad been draine d, and she w an ted him to repl ace what she had l os t

. I thi nk those were

-- wer e her wor ds

.12 Q. Do you recall where these chil dren went to school?

A. They were i n private school s

. Q.

. . . And do you recall the agreement t hat t he parties ha d had

at t h e time regar din g t he pay m ent of priv ate

- school tu i tion?

A

. He was going to be re sponsible for that, and there were a couple of issues up and down w i th the private schooling

. Q.

. . . And was private

- sc ho ol payment one of t he financial i ssues that yo u believe that [M] oth er was conc erned about?

A. Absolutel y.
Q.

. . . So is it yo ur opinion that the mother ’ s involvement changed to the effect of she didn ’ t want to help facilitate t he access b etween [F] at he r and child [ren] un less he conti n ued to pay for things?

[MOTHER ’ S C OUNSEL] : Your Honor, I ’ m going to object to leading.

THE COU RT : Sustained

. Q. (BY [ FATHER ’ S COUNSEL] ) : Dr . Threats , what was it that [M] other was looking for in exchange fo r coope ration ?

A. She said that s he wanted him to ke ep the kids in schoo l an d addres s the financial concerns.

Q. And how did her partic ipation c h ange when [ Father] pulled back on some of those financial commitments?

A. It increased her frustration s with him.

Q.

. . . And did it impact the

-- your a bi lity to reu nify the chil dren and their father?

(Brief pause)13 A. I ’ m

-- I ’ m trying to address t h e question. I think her

- - her frustration and the children ’ s sensitivity to her would have definitely had

to have played a role in the backing.

Q. Did yo u find that the children were awa r e of financial issues between the parents?

A. Yes.

Q.

. . . Were there other ma tters that the children had knowledge of t hat were concerning to you?

A. T he parents ’ relationship.

Q.

. . . And what were the chil dre n aware of that were dis cussed

w ith y ou in counseling?

A. They blamed the father for

-- for leaving the moth er.

Dr. Threat s a l so discussed one other matter

— a tickli sh one

— that arose whi le

she was counseling the family

. I mme d iately before Father ’ s peri od of s ummer
possession
, o ne of the boys mad e a n outcry o f sexual a buse against him

. The outcry

came just as Father ’ s time with the children was about to increase
, but a s a

cons eq u ence of the outcry, F ather ’ s access was decreased:

Q.

. . . And at that t ime, what was your go al for t he children ’ s summer poss ession wi t h their father ?

A. I believe we had reached a

-- a schedule where t heir time would be i n creased with their dad.

Q. Okay. How did that outcry statement and eventual ruling out [a] ffect the visitation t hat you we re antici pating?

A. It ’ s going to have a major effect.14 Q. And it w as your opinion at that time to not move forward with the visitation because of the outcry?

A. Yes.

In the end, t h e allegations proved unfounded. Dr. Threats ’ s understand ing was tha t

Fath e r had taken a poly

graph tes t , the allegatio n s had b een ruled out

, and the case had

been closed

.

When aske d how the s exual

- ab use allegation was relevant to M other ’ s behav ior,

Dr . T h reat s responded,

The fact that there was no prior out cry other than at that p eriod in time and the kids had been in counseling and th er e was a lack of awareness of tha t level of seve ri ty in interactions with the children, I would say that

-- that that woul d be the reason to establish.

P u t another way, given the tim ing a nd given the lack of any hi story o f sexual

- abuse

concerns, Dr. Threat s suspected that Mother had coached or prompted one of the

bo ys to make the allegations

.

Dr. Threat s ’ s attempt at reuniting the boys with F a ther ended unsucces sful ly

.

Dr . Threat s expla i ned that h er s ervices were terminated ; she believed that h e r

cou nseling had been a borted because Mother had become “disenchanted with [ Dr.

Threats ’ s ] process.”

A ltho ugh the goal o f Dr. Threat s ’ s counseling was reuniting the boys wi th

Fa ther, Dr. T hreat s ’ s “ process , ” if continued, would have incl uded Mother. When

terminated, Dr. Threat s thought that the parties sho u l d continue reunificatio n

counsel i n g , that M o ther should get a psychological evaluation, and that M o ther15

should receive individual cou n seling : “ I would have recommended family systems

therapy with the involvement of all four people. I would have recommen de d that the

mother have a psych e v a l and individu al therapy. ”

Before Dr. Threat s left the stand, the trial court aske d her one l ast question :

THE C OU R

T : Okay. I have a que stion. Y o u

-- you were t al king about

-- someone asked a question about whether o r not you thought reunification basically works , and your response was t hat when the other parent supports the reunific ation. And so in every thing th at you heard before, the question c o mes down to , i n

-- in working with this family
, did yo u find that mom supported the reunification of dad with these chi l dren?

THE WITNESS : N o , she did not , not in her actions

.

At the c l o se of the hear ing , t he tr ial c ourt said, “ There certainly is not a material

and substantial change such that the motion to modify should be g r anted. ” Reg ar ding

enforcing p ossessio n an d ac c e ss, the trial c ourt warned M other:

I assure you I put people in jail on a regular basi s. Okay? So if either

--
a nybody thinks that they can do what they want to and then just figur e out how

-- what to tell the Judge, j us t realize that ’ s just on e of the t hings I do.

I f you want to get put in jail for not allowing h im to see the children, that ’ s fi ne, but just understand, once every T is cros s ed and I is dotted on it, in order to ma ke your children decide whether or not t hey ’ d like to see their father o r do they want to see you in jail, becau se you ’ re the one that ’ s going to get p u nished f or it. Th ey don ’ t go to jail. Yo u do.

And if that doesn ’ t change th ei r mind, I don ’ t know. M aybe it ’ s they can ’ t get the driver ’ s license. Okay? He ’ s probably at 15? Was it 15 or 14? Whatever. Soon would have the opportunity to do that. T aking th at away mi ght change their tune on whethe r or not they are willing to be respectful to both pare nts. Th e r e ’ s lots of thi ngs that can happen.16

Just because a k

id should have a voice in it, they ’ re not the decision makers. Never shou ld be the deci s ion make rs. That ’ s why they can ’ t buy a car.

The trial court added, “ You

- all never needed to come to cou rt here. ” Along

the same lines, the trial court said, “ So I ’ ll say this did not need to happen t oday, and

so really no r elief is g r a nted. ” Bottom line
, “ I ’ m denying the motion to mod ify. ”

The t rial cour t signed a wri tt en order denyin g Mother ’ s motion o n July 27,

2021

.

D

. F ATHER M OVES TO E NFORCE P OSSESSION
Only a week later, o n A u gust 3, 2021
, Father filed a motion to enfo rce his

possession and access

. He al l e ge d one violati on: On Friday, July 30, 2021, Father was

at Mother’s residence to pick up Andy and Bruce at 6:00 p.m., and Mother failed and

r e fused to surrender Andy and Bruce to him

.

O n October 12 , 2021, Father filed an am ended motion to enforce his

posse ssion and access

. He alleged seven violations of the trial court ’ s possession

order:

1. On Frid ay, Jul y 30, 202 1, F at her wa s a t Mother ’ s resi d ence t o p ick up Andy and Bruce at 6:00 p.m., and Mother failed and refused to surre nder Andy and Bruce to Father at 6:00 p.m. at her residence.

2. On Thursd ay, August 26 , 2021, Father w a s at Mother’s residence to pick up Andy and B ru ce at 6:00 p.m., and Mot her fai l e d and refused to surrender Andy and Bruce to Father at 6:00 p.m. at her res idence.

3. On Thurs day, S epte mber 2 , 2021, Father was at Mother’s residence to pick up Andy and Bruce a t 6:00 p.m., and Mother failed and refused to s urr ender Andy and Bruce to Fath e r at 6: 00 p.m. at her residence.17

4. On Friday, September 3 , 2021, Father was a t Mother’s residence to pick up A ndy an d Bruce at 6:00 p.m., and Mother failed and refused to surren d er Andy and Bruce to Father at 6:00 p.m. at h er residence.

5. On Fr iday, Septemb e r 17 , 2021 , Fa the r was pr esent at Andy ’ s s c hool to pick him up at 6:00 p.m. after practice and Andy refus ed t o get in Father ’ s vehicle, and Andy was not surren dered to Father.

6. On Thurs day, September 2 3, 2021, Father was a t Mother’s residence to pi ck up B r u ce at 6:00 p.m., and M oth er failed and refused to surrender Bruce to Father at 6:00 p.m. at her re sidence.

7. From S atu rday , September 1 8, 2021, to Sunday, September 26, 2021, M o ther was away from the children overnight and f ailed to provide notice

to Fat h e r of her absen ce so that h e c ould have the right to care for the children du ring that period pursua nt to the right o f first refusal.

E

. T HE H EARING ON F ATHER ’ S M OTION
To put t he testimony in its proper contex t , Andy and Bruce were not small

children. At the time of the November 2021 h ear ing
, Andy was 15 ye ars o l d, and

Bruce w as al most 12 years old.

1. Por tions of the Previous Hearing are Ad mitted as Evidence

In his case

- i n

- chief

, Father i ntroduced those portions of the reporter ’ s re cord

from the June 202 1 hearing on Mother ’ s motion to modify that we discussed above

—
that is, Dr. Threats ’ s testim o n y and the trial court ’ s warnings to Mot he r

. Before proceeding, we address a c orollary complaint that Mother has with th e

admission of evi dence regardi n g Mother ’ s motion to mo dify. Without assigning a

separate issue in her petition , Mother contends that the trial court improperly

admitted Mother’s motion to modify, the order on Mo t her’s motion to modify, and18

the excerpts f

rom the hearing on Mother’s mot i o n to modify. Mother repeats these

arguments in her reply brief. Mother’s only objection at the heari ng was to r elevance
,

which the tria l court overruled

. We too overrule Mother ’ s complaint because (1) t he

exhibits were relevan t to show whether Mother willfully disobeyed the court’s order

, (2) the events that were the subject of Fa ther’s motion to enforc e did not occur in a

v acuum , and (3) the struggle over access and possessi on was a running one

. See Tex.

R. E vid. 401. To the extent Mother argues that the exhibits’ probative value was

substa n tially outweighed by the danger of unf air prejudice and c onfu sion of th e issues,

see Tex. R. Evid. 403

, Mo th er did not object on that basis a t the hearing
, and thus she

has not preserve d that issue fo r review
, see Tex. R. App. P. 33.1

.

2. Father Testifie s
Regarding the fi r st violation, Father testified that h e had tried to p ic k up the

children on July 30th at 6 :0 0 p.m. at Mother ’ s residence and that h e was n ot

succ ess ful

. Father also introduced into evide nce a calen dar for the mo nth of

July 2021 that ha d a red “X” on the date of July 30

— the f ifth Fri da y in July

.

Elaboratin g , Father testified about what “frequently” happen ed when he a n d

Mother attempted t o ex change the c hildren

. Father ex plained that w hen he went to

Mot her’s r esidence, Mother would walk out, tell F ather that she wa s turning the

ch ildren over to hi m, and tel l the boys to enjo y the i r dinner or wee kend, after which

she would go back inside. A t that point
, the children typica lly st ood outside and sa id19

that they we re not going with him, so he talk ed to them f or anywhere from five to
twenty mi nutes

. Ul timately t hough, the boys then went back ins ide Mother ’ s house

.

Fath er ’ s unders tanding was that M o ther disciplined the boys when they did not

go with him and noted one in s tanc e when Mother discipl ined one child b y n ot
allowing him to go to a football or baseball p ractice

. Fath er acknowledged , however,

that he did not know what M o ther was telling the boys:

As I ’ ve said to her, I thi n k the main thing we

. . . needed to do was to sit down with the kids so they had an underst anding tha t they

w ere going to co me and the y neede d to co me. And I think there ’ s a serious lack of communication there. I

-- I don ’ t know what she tells them, if s he

. . . tells them to come. But I think if we all sat down together, I think that ’ s the first and f oremos t, then they woul d have a g ood und erstand ing they needed to come.

On cros s

- examination, Father admitted that on J uly 30 , Mother b rought the

child ren outside when he came to pick them up

. He also conceded that o n o ne

o ccasion the boys had their sui tcase s and b ackpack s an d were re a dy to go, but he

could not specifically reca l l if that occasion w a s on July 30 or on another date.

As on direct

, Fathe r s tated that he had talked to the boys for a while before

they went back inside. H e added , ho w ever, t hat after the boys went ins id e, h e emailed

Mo ther , and the boys came back outside , where he talked w it h them a gain before the y

eventua lly wen t back inside. Father did not recall whether the bo ys came outs ide f or a

third time

. Father did not dispu te that he had asked th e boys t o get in t he car with

him.20

3. The July 30, 2021 Email Ex change Between Father and Mother

During Father’ s cr o ss

- examin ation, the t rial c ourt a dmitted in to evidenc e an

email exc hange between Father and Mot her d at ed July 30, 2021

. We present the

em ails i n chronolo gical order , alt houg h that is not how the y are presented i n the

e xhibit :

a. Moth er at 6:18 p.m.

The boys were delivered to y ou wit h their bags for the wee kend at 6:01 pm tonight in m y driveway. The y have been outside [,] [ a] nd I have answered my door thre e times now.

I told you I was tu rning them ov er to you and you accepted them verbal ly and said everything was good.

I h av e pac ked them and encouraged the m and t old them I would see the m S unday night.

I hope y ’ all have a great weekend.

Thanks

b. Father at 6:24 p.m.

[T] he kids walk ed back in again

. I am going to my place so you can dro p them off.

They said they are not c oming a n d walked ins ide.

Not su re what else you would like me to do.

I am still here and will wait a little longer.

Thx21 c. Fathe r at 6:31 p.m.

You d i d turn th em over and they said they were not coming and walked back inside.

T hey can come with me no w or may b e it would be bet ter fo r them if you dropped them off at m y place.

I am st ill here and ab out to leave.

I am not sure what else you would like m e to do.

You can let me know.

Thx

d. F ather at 9:47 p .m.

I will tr y again tomorrow morning and p ic k the bo ys up at 10. If you

wou l d pref

er to drop them off [,] you can le t me know [,] and I wi ll be home.

If I don ’ t get any respon se [,] I will be at yo u r residen ce at 1 0

.

4

. Mothe r Testi fies

Mother testi fied ab out t he steps that she has taken to encourage the children to

visi t Father :
I punish the boys when they don ’ t res p ond t o hi m. I punish th e m when they don ’ t go w

it h him. I have talked with them extensively about

t ry ing to m ake [the] effort with hi m, to s pend time with him, to give him a chance to start som ewhere. I have got ten in with Jarrod Hood, who is a pro fessi o nal couns elor, to help t h eir anxiety, to help b uild their relationship. I have also offered alterna ti ve place s and times for [Father] to pic k up the boys to spend time with them.

. . . .22 Q.

. . . Ho w man y times di d you send them out

-- for

-- for Count No. 1, how many ti me s did you send them out side to go with th eir father?

A. Three.

Q. Have you been encouraging the boys to go with their father?

A. All the time

. Q. What have you done to

-- other than t he discip line, what have you done to try to encourage the boys to g o with their father?

A. I hav e s ug

gested t hey g o for ice cream. I ’ ve sug gested they ride to and from practices with him. I ’ ve suggested i n betw een their baseball games they go have a sn a ck with h im. I have sugg ested they meet him for dinner. I ’ ve s uggeste d he

-- they go to breakfa st wi th him.

Mother testified about t he punishments that she had give n t he children for not

communicatin g wit h or visit ing Father and a bout how the punishments only made

matters worse:

A. [F a ther] had sent me a message that the boys were not

r espondi n g to his texts or his phone calls, and so I told him that I was going to ask them to respond back to him. I did s o [on] se veral occasions. Th en when I circled back with them and found out the y had

no t responded, I took aw ay their iPad s and elec tr onics f o r the weekend after they told me no.

I did the same thing again the next weekend, which wo uld have been

-- that w ould have been September 14th

. The same thing happened. They weren ’ t responding to hi m. They lost t heir iP ads for

t he week end, wh ic h is ho w they communicate with their friends.

THE COURT: Slow down. Slow down. Okay?

A. September the 6th weekend was L abor Day weekend. It was

to have been [Father ’ s] possession weekend. The boys did not go wit h him on Frid ay night as they were s uppo sed to

. They lost all privileges23

for the weekend. They could have no playdates, and they got

-- they could n ’ t do a nythi n g on Mond ay d uring the ho lida y because th ey were home.

Q. (BY [MOTHER ’ S COUNSEL] ) Le t ’ s go to September 17th, if you remember i t.

A. Se ptember 17th is the night that [Bruce] ran away from [F ather] afte r prac t

ice to th e football game. [B ruce] was punished. He lost his iPad. He lost his Xbox. He lost his Pl ayStation. And he was not allow ed to h ave fri en ds over that weekend af ter that.

Q. Now, when he is

. . . about to be picked up by his father, had
you t alked to him ahead of t i m e about going with his father when he picks him up?

A. Yes, I had.

Q. Wha t did you tell him ?

A. He could a bsolute l y no t get in a car with any one else e xce pt his father after practice.

Q. Have you told him that before?

A. Yes.

Q. Have you told him t h a t when you have arranged with [Fa ther] to pick up the bo ys even when it ’ s n ot his period of p ossession?

A. Y es.
Q. How many times has tha t happened , if you know?

A

. At least four to five.

. . . . Q.

. . . On Octob er 21st, d id you discipline either one of you r kids?24 A. Yes.

Q. W hat was that one about?

(Long pa use)

Q. I ’ m taxing y our memory, and I ’ m sorry.

A

. You are.

Q. Let ’ s g o to Octob er 22nd.

A. October 22nd I know was a Thur s day night , and I know that [Bruce] had a baseball pra ct ice which was to start at, I bel ieve, 6 :30 that night. And he was told when I turned him over, if he did not ride with his father, he would not be allow e d t o go.
Q. D id he ride with his father?

A. He did not.
Q. Did you not allow hi m to go?

A. Did n ot [sic] allow him to go

. And [An dy] als o lost his (unintelligibl e)

--

THE REPORTER: I ’ m sorry. Lost his what?

A. His privileges to play Oc ulus and Fo rt n it e.
Q. (BY [MOTH ER ’ S COUNSEL] ) October 28th, di d you disci pline them October 28 th?

A. Yes.

Q. W ha t did you do the n?

A. [Bruce] w as not allowed to go to either his baseb all practice or his football practice, and [And y] lost his elect ronics for th e ent i re weekend.25 Q. Ar e the punishments working?

A. No.

Q. Are they

-- ar e they

-- are they starting to move your kids in the right dir ection or the opposite

-- opp osite direction?

A. No. They ’ re doing exactly w hat we would want them not to do. They ’ re j u st making

-- [FATHER ’ S ATTORNEY] : O bjection; nonres po nsive after they ’ re doing what t hey ’ re not supposed to do.

THE COURT: Sustained.

Q. (BY [ MOTHER ’ S ATTORNEY] ) What are they doing?

A. Becoming more u pse t a nd angry with thei r fat her.

Q. Have you told your children what the Judge told yo u to tell th em? H av e you told them if you d on ’ t go, I ’ m go ing to jail?

A. Yes.

Q. Now, did you tell them about this ac tion that their father had filed a motion for enf

orcem e nt or anything?

A

. No.

Q. Okay. Now, who have you

-- I think you said that you ’ ve gotten yet anot he r counselor. Wh o did you ge t?

A. Jarr od Hood.

Q. Have

-- have you met with Jarrod?

A. [F ather

] and myself have met with him three times, and th e bo ys ha v e met with him

-- no, w e met with him twice

--
Q. Okay.26 A.

-- and the boys have m et three times.

A t the close of the hearing, the trial court made no oral ruling. On

November 29
, 20 21, the trial court made its email ruling. And on January 4, 2 022, th e

trial c ourt signed its contempt

- and

- commitment order.

I V

. DI SCU SS I ON

Contempt of cou rt is defined broadly as disobedience to or disrespect of a

court by acting in opposit io n to its authority. Ex parte Ch ambers
, 898 S.W.2d 257, 259

(Tex. 1 995) (orig. proceedin g)

. Contemp t of court falls withi n two basic types : dir ect

c o nt empt and constru ctive contempt. Direct contempt is that type of disobedience or

disrespect that occur s within the court ’ s presence , whi le cons tructive contempt occurs

out side the cour t ’ s pres ence. Id. The contempt alleged in this case

— violation of a

w ri tten court order outside the court ’ s presence

— is const ructive contempt. A

criminal contempt convictio n for disobe ying a court order req uires p roof beyond a

reasonable dou bt of: (1) a reasonab ly specific order; (2) a violation of the order; and

(3) the w il lful intent to v

iolate the order. Id. In reviewing the record, we determine

only if the judgment is vo id because, for example, no evid ence su pports the contempt
finding. Id. at 259

– 60. We do not w eigh or reweigh the evidence. Id. at 259.

Initi ally, we note that for c ontempt purposes , the children ’ s desires do not

override an order : “ [

The mother] ident if

ies no l egal authority, and we h ave fou nd

none, that takes consider ati on of a child ’ s de sires to the extreme of granting th at

child

— no matter ho w mat u re

— complete discre tion over pos session by a parent. ”27

In re S.V. , 599 S.W.3d 25, 37 (Tex. App.

— Dallas 20 17 , pet. d enied) (op. on reh ’ g)

(f ootnote omitted). F or other purpos e s and in other proce edings

, t he children ’ s

desir es might be relevant

. See T ex. F a m. Code. Ann. § § 1 53.134(a)(6)
, 156.101(a)(2)

( both providing that a child must be at least tw elve years o ld before the child’s

prefe rence , if an y, regarding the person to h ave the exclusive rig ht to design ate the
child’s primary residence becomes a facto r )

. Nothin g in the trial court ’ s possession

and

- access order gave the children a veto right

.

In Mother ’ s f

irst issue, she conten ds that sh e “ surr endered ” the children when

s he left the boys ou ts ide and thus complied with the possess ion

- and

- access ord er

.

M ot her has some aut hority in her fa vor. In a case decided with similar facts, t he

Beaumont Court of Appeals wrote,

[The mother] left [the chil dr en] outside the house, and by do ing so, she subjec ted the chil dren to [the father’s] authority over them. Noth i n g in the record shows that [the mother] encouraged the children not to go with [the father]. Because no evidence supports the trial court’s fi nding that [the mother

] willf ull y faile d to surren der the chil dren to [the father], the trial c ourt’s orde r hol d i ng her in contem pt based on her alleged failure to surrender the children to [the father] . . . is void.

I n r e Miller , No. 09

- 18

- 00253

- CV, 2 01 8 WL 4138980, at * 3 (T ex. App

. — B eaumont
Aug. 30, 2 018, orig. p roceeding) (mem. op.)

.

W e are not persuaded. “ Su r r ender ” is de fine d as “ to y i eld to the power,

control, or possession of another upon compulsion or demand ” or “ to give up

completely or agre e to forgo especially in favor o f an other. ” Surrender

, Merriam

We bster O n line Dictionary
, https://www.merriam

- webs t e r.com/dictionary /surrender28

( last visited Feb. 14 , 2022 ). L etting the children remain in Mother ’ s house

— th warti n g

Father ’ s posses sion

—

irreconc il abl y conflicts with her obli g ati on to s ur rend er t he

children to F a ther. Getting the boys into Father ’ s ca r was F ather ’ s pr oblem. Mo th er

made Father ’ s problem infinitely greater by l etti ng the children back in to her hou se

. To put it colloquially, regar dl ess of whether M other talk ed a g ood gam e, her act ions

showed that she was not a team player. The moment M other a llowed the child ren to

remain in her house, she interfer ed w ith Father ’ s possession

. I f the boys were in her

house after 6:00 p.m.
, Mot he r had surrendered nothing

. Cf . In re Koomar

, No . 09

- 2 0

-

00114

- CV, 2020 WL 5805571 , at * 2

– 3 (Tex. Ap p.

— Beaumo nt Sept

. 3 0, 2020, orig.

proceeding) (

per curiam) (mem. op.) (holding that the mother surrendered the child

when (1) she arrived at the airpo rt on time with the child , (2) the child refused to leave

the mother ’ s ve hicle for fifty minutes
, and (3) the child le ft t he v e h icle and

successfully c aught a flight with the father ).

To hold otherwise invites gamesmanship. Hypothetically, Mother could not

leave the children at the c urb for Fat he r and wash her ha nds of the matte r. Mother

was not ordere d to simply surrende r the children ; she was ordered to surrender the

children to Father

. By the end of the evening

, Mother still had poss ession of t he

chil dren. N o construction of t he trial court ’ s order con templa tes M o ther hav in g

p o ssession of the children after 6:00 p.m

. Thus, we overrule M o ther ’ s first issue.29

In M other ’ s second issue
, she attempts to make the children ’ s desires relevant

by arguing tha t , assuming she f aile d to comply with th e p os session

- an d

- acce s s or der

,

her no nco m pliance was involuntary because the children refused to go with F a ther.

The involuntary inability to comply with an order is a valid defense to criminal

contempt because noncompliance cannot hav e been willful if the fa ilure wa s

involu n tary

. Chambe rs , 8 9 8 S.W.2d at 261

. Although the inability

- to

- comply defense

technically rebuts contempt ’ s willfulness element , the relator bears the burden of

proving h er inability to comply. Id. Again, we do no t w eigh the evidence ; we only

de te rmine i f there is an y evi d ence to legitimize the relator ’ s confinement. Id. at 261

–

62. To s ucceed, th e relator must establish conclusively that her noncompliance was

involuntar y

. See id. at 262.

A s with her previous a r gument, Mother ha s author ity su pportin g t his

contention

. In dict um , the Amarillo Court of Appeals wrote , [ The m other] would be subject to contempt proceedings if she overtly or covertly sought to impede [ the f ather ’ s] taking possessio n of the children fo r his visitation. H owever , in t his cas e, the trial j udg e did not find that she acted in such a manner. Rather, his finding was that [the mother ’ s] passive conduct amounted to a denial of visitation. The evidence shows that [the mother] did have the ch il dr en and their bagga ge pre sent a t the

a gre ed location fo r [the father] to take possession of them. Under this record, [the mother ’ s] passivity was not punishable by contempt.30

Ex parte Morgan , 886 S .W.2d 829, 832 (Tex. App.

— Amarillo 1994, orig. proceedi ng )

. 5

Mother stresses that she en courage d t he boys to go w i th Father

. See id.

Once again, we are not persuaded

. Regardless of what M ot her told Fa ther, the

trial court, or the boys

, Mother g ave the boys the option of staying with her. M o ther ’ s

actions communicate d her posi tion

— t he ch ildren did n ot have to go w ith F ather i f

they did not want to

. And unl ike the Morgan and Miller courts , the trial court here h ad

evidence to suggest that Mother was sabotaging Father ’ s access to the children.

As the factfi nder, the trial court could choose to believ e all, some, o r none of

t he evidence. In re C.F. , 576 S.W.3d 761, 774 (Tex. App.

— Fort Worth 2019, orig.

proceeding). The factfinder may believe one witness and disbelieve others.

McGalliard v. Kuhlmann , 722 S. W.2d 694, 697 (Tex. 1986). Provided the tri al court’s

fac t u al deter minations have evidentiary support, we defer to the trial court. C.F.
,

576 S.W.3d at 768.

I n an original mandamus proceeding

, a ppellate court s do not question the trial

court ’ s credibil ity determ inations

. In re H ightower , 580 S. W.3d 248, 255 (

T ex. App.

— Houston [14th Dist.] 2019, orig. proceeding )

. Illustrating this principle in a habeas

context , where the stand ard is the same, is Ex parte Rosser
, a case in which the

evidence point ed in one direct ion ( involuntary noncompli ance )
, but t he trial c o urt

5 The c ourt in Morgan granted the mother hab eas rel ief on other grounds. See i d. Despite that , t he court addressed w heth er the moth e r had delivered possessi on of the children because the p arties had requested guidance, because of the pau city of auth or it y on the qu es tion, and because the court thou ght it likely that the issue w ould

reoccur

. See id.31

rule d in an other (v olu ntar y noncompl

iance)

. See 899 S.W .2d 382, 38 6 (Te x . App.

—

Ho uston [14th Di st.] 1995, orig. proceeding ) ( stating that “ the trial cou rt is allowed to

jud ge the credibility of the witnesses and the wei ght to b e given th eir t estimon y ” and

that “ [a]n appeals court may not substitute its judgment for that of the trial court as

trier of fact ” ). T he appellate court reconciled the apparent dichotomy on the basis o f

credibility

— or the lack thereof

:

A ll of th e ev

ide nce in the record indica t e s that [the father] encouraged the visitation an d did what he could to convince hi s

seven teen

- year

- old d aughter to see her mother. The testimony from the hear ings on August 4 and December 1 s hows that [the daughter ]

st eadfa stl y refused t o go an d t hreate n e d to r un away if she was fo rced to visit her mot he r. Neither being punished herse lf nor having her father found in contempt dissuaded her. There is no evidence in the r ecord that [the father] overtly or cov ertly sought to im p ede or dis cou rage the vis it a t ion.

[The mother] , h owever, argues that [the fa th er] was ordered to “deliver” the child, which required him to take overt action to comply. She complains that [the father] failed to do so, and that his only justification w as that the c hil d did not want t o go.

W ith in the spectru m of visitation dispu te s, there may be instances in which : (1) a parent actively disco urages or impedes visitation; (2) a parent passively fails to insist that a child comply with visitation; [ 6 ] or ( 3)

a parent is l e gitimately un a b l e t o compe l a child to comp ly with visitation. W e b elieve that the defense of invol untary inability to comply ap plies only to the third alternative, and not the first two.

As a practical matter, a trial court might be p re se nted with evid ence like that i n t his cas e i n any of the t hree situations above

. If such evidence must always be ta ken at face value to negate contempt, the ability of the courts to enforce visitation could be weakened

6 See Passive

-

Aggression , Psycholog

y Today

, https://www.psychologytoda y.com/ us/basics/ passi

ve

- aggres sion (

last vis ited Feb

. 1 4 , 2022 ).32

c onsiderably. The safeguards to pr ev ent that resul t are that the r e lato r has t he burden to conc lusively prove involu n ta ry inability, and that the trial court is allowed to judge the credibility of the witnesses and the weight to be given their testimony.

As trier of fact, a tri al court is not bound by the testimony o f an interested witness merely because it is uncontr ad icted. Instead, testimony by an int ere sted witness may establ ish a fact as a m atter of law only if the testimony could readily be contr adicted if untrue, and is clear, di re ct and positiv e, and there a r e no circumstances tending to discredit or impeach i t. An appeals court may not subst itute i t s judgment for that of the trial cou rt as trier of fact.

In this case, [the father] had the burden to prove his involuntary inab il ity to comply with the visit a t i on order. His and [the daughter ’ s] testimony were t o the ef

fec t that he trie d to pe rsuade her to visit her mother, but because she re fused, he was unable to do so.

However, [the father] and [the daughter ] were interested wi tnesses, and t heir testimo ny c o uld not readily be contradicted if

untrue. Thu s, th e trial court was not bo und by t his te s timony if it disbeli eved it, and we may not substitute o ur judgme nt for that of the trial court on that determination. The contempt o rder stated th at [the father ] h ad the ability to comply with the visitation order

, a nd, by implication, that h e h ad not co nclus ively established his involuntary inability to comply. Th er efore, as to [the father ’ s] first and second complaints, the order di d not deprive [the father] o f h is liberty wi thout due process of law.

Id. at 385

– 86 (footnotes and citations omi tted).

More recently, the First Dist rict Court of App eals addressed a mother ’ s
argument that she cou ld not transport her son to counseling s e ss ions because he

refused to g o :

The mot her asserts that her son is a 17

- year

- old, 6

- foot

- tall football player, and she is unable to force him to attend counseling

ses sions if he re fuses. Both the mother and her son bo th testified that the son refused t o a ttend the Sep tember 7 sessi o n , d espite the mother ’ s33

admonitions that he must do so. The child further testified that, after telling his mother that he would not go t o the session, he took the car and left the house.

In re White , No. 01

- 18

- 00073

- CV, 20 1 8 WL 2305524, a t *4 (Tex. App

. — Ho u ston [1 st
Dist.] May 22, 2018, orig. proceeding ) (per curiam

) ( mem. op.)

. The t rial court found

the mother in contempt, and the court of appeals di d not disturb the trial court ’ s

fi nding:

In this case, the evidence suppo r ti ng the defens e of involunta r y in ability to comply came from the mother and her son, who were both interested witnesses and whose testimony could not be readily

contra dicted if it w a s untrue. Therefore [,] the trial court was not bound by the testimony i f d isbelieved, a nd this court m a y n ot subs titute its judgment for that of the trial court. The trial court determined that [th e mother] had the ability to comply, impli citly fin ding that [she] had not conclusively establis hed her involuntary inability to c om ply.

Id. (ci tations omit te d

)

. The tri al court in our case made a s imilar fi nding: “ The Court

further finds that on the day of this hearing [Mother] had the abili ty to comply w ith

the prior order of the Court. ”

Put more bluntly , t he tria l cour t was f ree to disbeliev e Mother and to conclude

that she had engaged in a dog

- and

- pony sh ow for Father ’ s and the t ria l court ’ s

cons umptio n that was designed to shi eld her from contempt findings

. See id. ; Ros ser ,
899 S.W.2d at 386. The t rial court h a d alr ea d y ma de it clear to M other that the b oy s
risked nothing by refusing to go with Father but that Mother did , an d Mother state d

that she had warned the boys that she could go to jail if they refused to go with

F at her . Desp ite th e trial court ’ s warnin g to M ot her a nd despite Mothe r ’ s warning to34

t he children , M o ther t es tified that the boy s refused to go with Father, presumably

m ea ning that th ey were willing for Mot her to go to jai l rather than go with Father

.

This would have been a curious choice i f the boys ’ g oal w as to stay away fr om Father

beca use once Mother went to j ail
, th ey would likely go str ai ght to Fat her ’ s ho me

bas ed on his right of first refusal

. M other ’ s and the boys ’ actions show that they

potentially discounted the possib ility of M other ’ s going to jai l for c o ntempt.

Furthermore, if M o ther feared being held in cont empt because the boys

refused to hono r the pos session

- and

- acce s s order, p resumably Mother would have

file d a mot ion to modify based on a material and sub stantial change in the ch ildren ’ s

circ umstances

. Alth ough Mother file d a motion to modify, she did n ot alleg e th at the

children were refusing to visit Father . A nd i n he r motion to modify, Mother ’ s

pro posed s olution was not to work t o ward ensuring that the boys visited Father but

was to make Father ’ s visits contingent on he r approval

— which, given th e history,

would have left Father ’ s p o ssession r ights in a n extremely p r ec arious pos ition

. See

S.V. , 599 S.W.3d at 37 ( “ Courts have concluded t hat giving one parent sole authority

over the other pa rent ’ s possessio n of a child can effectively deny access to the child.

Moreover, placing all c o ntrol over possession in one pa r e n t ’ s discretion leaves the

other pa rent wi thout the remedy of co ntempt if possession is denied

. ” (inter nal

citatio n omitted)). If the boys tru ly refused to go with Father, and if Mother was truly

concerned about being hel d in contempt for the boys ’ refu s a l
, the trial court as35

fa ctfinder could have reasonab ly conc lude d that M o ther would have broached that

subject in h er motion to modify, but she did not.

T he tri a l court ’ s ruling shows th at it did not b elieve Mother , an d Dr. T hreats ’ s
testimony gave the tr

i a l court an evidentiary basis for this belief. At the previo us
hearing, M other ’ s commit ment to uniting the childre n with F ather was contradicte d

cons id erably b y Dr. Threats
, who (1) thought that Mother was using the c hildren as
pawns to extract more fin a n c ial help from Father , (2) suspected that Mother was

behind the unfoun de d sex ual

- abuse allegations that adverse ly i mpacted Fathe r ’ s

summer posse ssion
, (3) belie ved that Mother had terminated her services when Dr.

Threats wanted her to get a psychological e v aluation and to receive indivi dual

counseling , and (4) stated that Mother ’ s actio ns beli ed any support for building a

re la tion ship between the boys a nd Father

.

Th us, because the tr ial court was the sole judge of Mother ’ s credibility and

demeanor and because other e v idence supported the trial court ’ s factual

determinat

ion that Mother ’ s nonco mpliance was voluntary, we overrule Mo ther ’ s

second iss ue. See Ch amber

s , 898 S.W.2d at 259 ; Rosser
, 899 S.W .2d at 38 6

.

Because we have determi ned tha t the evidence supports the tria l court ’ s
contempt fin ding on the first violation, because the trial cou r t asse ssed separate

punishment s for each of the six vi o l ation s , and b ec ause the trial court assessed the

same punish ment for eac h violation and order e d them to run c oncurrently, we need

not addres s Mother ’ s fi rst and second issues as they apply to violati o ns tw o, three,36

four, an d s ix or Mother ’ s third issu e as it applies to v iolation seven

. See g

en erally 1717

Bi ssonnet, LLC

, 5 00 S.W. 3d at 496 ; McDaniel , 887 S. W.2d at 170

– 71

. Turning to Mother ’ s f

ifth and last issue, she asserts that the award of attorney ’ s

fees i s void because the judgm ent of contempt is void

. See Ex p art e Fernandez

,

645 S.W.2d 6 36 , 639 (Tex. App.

– E l Paso 1983, o rig. pr oceeding) (per curiam) (“Any

at torney ’ s fees based upon that void order must also be void. ” )

. Because w e hold that

t he contempt

- and

- commitment ord er is valid, we overrule Moth er ’ s fifth iss ue

.

V

. CONCLUSION

We de ny M o ther ’ s petition for writ of ma nda m us. Our stay will remain in

pla c e for fifteen days after the date of this order, at which t i me it will expire

automa tically unless Mother files a ti mely motion for rehearing. S ee Tex. R. App

. P.

52.9. If Mother f

il es a timely motion for r ehearing
, o ur s tay will remain in place until

fu rther or der of this court. We will not entertain a motion t o extend time to file a

motion for rehearing

. See id. ; see also Tex. R. App. P. 49.4

.

/s/ Brian Walker

Brian Wal ke r Justice

Delivered: February 17, 202 2