## In the Court of Appeals Second Appell a te District of Texas at Fo rt Worth

___________________________ No. 02

- 24

- 00266

- CV

___________________________

On Ap peal fro m the 481st District Court Denton County, Texas Trial Court No. 21

- 6418

- 393
Before Sud derth, C.J.; Kerr and Bassel, JJ.

Memorandum Opinion by Justice Kerr 

### I N RE 

### D AVID 

### M ARK 

### L OYD2 MEMORANDUM OPINION I. Introduction In two issues, relator D a vid M ark Loyd seeks re lief from a judgm ent of criminal contempt and related confinement orders
. In his first issue, he complains that the trial court ’ s orders are void because the real party in interest ( RPI), his ex - wife, failed to plead the amount of child

- s u pport ar rearage s as requir ed by Fa mily Code Section 1 57.002. In his second issue, he asserts that the trial court abu sed its discretion when it fail ed to timely determine whether incarceration was a possible

resu lt of the contempt proceedi n g a nd thereby failed to ti mely adm onish him of his Fifth Amendment privilege against self

- incrimination
. The trial court ’ s April 17, 2024 order of contempt and confinement sentenced relator to a 60

- day peri od of custody based on three violations of t he trial court ’ s orders : (1) f ailure t o pay the full amount of child support on January 1, 202 4 ; (2) failure to pay the full amount of child support on February 1, 2024 ; a nd (3) calling RPI “ one trampy woman ” in front of their son on November 20 , 2021, in violation of the trial court ’ s temporary injunction against making dis parag ing remark s about each other in the children ’ s presence . The trial court ’ s April 18, 2024 order clarified that relator w as to serve 60 days for each separate v iol a t ion but that each period of confinement “ shall run and be satisfied concurrently ” an d was not to exceed a3 cumulative 60

- day total
. After rela tor filed his petition in this origi nal proceeding, 1 we ent ered a stay of the co nfinement order requir i ng r ela tor to surrender to the county jail on June 14 , 2024, and reques ted a respon se from RPI
. Because w e sustain relator ’ s first issue, we grant his petition in part and sever out the two child

- sup port findings and related p r ovisions 2 f rom the contempt order
. B ecause we overrule his second issue, we leave the r emainder of the co ntemp t order and its related confinement orders intact. II. Discussion Contempt orders ar e not appealable. Janson , 614 S.W.3d at 727
. A contempt orde r is void if it is beyond the power of the court or violates due process. In re Off
. of Atty. G en. , 422 S .W.3 d 623, 628 (Tex. 2013) (orig. proceeding). If the trial court ’ s contempt order is not void, then there i s no abus e of discretion. Id.

1 Relator ch ar acterize d his filing a s a petition for writ of habeas corpus, but because he was not confined at the t ime he filed his petition, we construed it a s a petition for writ of mandam us. See In re M.H. , No. 02

- 23

- 00253

- CV, 2024 WL 273498, at * 1

– 2 (Tex. App.

— Fo rt Worth J an. 25, 2024 , orig. proceeding) (mem. op.) (explaining that appellate courts have, on occasion , treated a petition seeking habeas relief a s a mandamus proceeding when there is a threat of imminent incarceration); see also In re J anson , 614 S.W.3d 7 24, 727 (Tex. 2020) ( o rig. proceeding) (“When the conte mnor is not jailed, the proper vehicle to chall enge a contempt order is a writ of mandamus , which requir es the contemnor to show that the trial court abused its discretion.”).
2 The trial court confi rm ed a chi ld

- support ar r e arage of $9,100 through April 17, 2024, and ordered that it be paid by 5 p.m. o n May 16, 2024.4 Contempt o r d ers that involve commitment are consi de red “criminal” contempt . In re M.W. , No. 02

- 24

- 0 0212

- CV, 2024 WL 2 862535, at *2 n.5 (Tex. App.

— Fort Worth June 6, 2024, orig. proceeding) (mem. op.). A cri minal

- contempt
con viction for disobedience to a court order r e quires proof beyond a reasonable doub t of: (1) a reasonably specific order; (2) a viola tion of the order; and (3) the willful intent to violate the order. Janson , 614 S.W.3d at 727
. A. Notice I n a c ase involving conduct outside the court ’ s presence , due p rocess requires that the alleged conte mn or receive full and unambiguous notification of the

acc usation of any contempt , which should state when, how , and by what means the defendant has been guil ty of contempt. E x parte Vetterick , 744 S.W.2d 598, 599 (Tex
. 1988) (granting relief when no motion f or contempt was filed and no show

- cause order or equival ent legal process was issued before the contempt hearing) ; see Tex. Fam. Code Ann. § 157.002(a)

– (b) (setting out gen eral requirements for a motion for enforcem e nt and s etting out specific requiremen ts for a motion for enf orcement of child support). A perso n may be h eld in contempt and imprisoned for failing to pay child support because the obligation to pay child suppor t is a duty, not a debt. In re C.F. , 576 S. W .3d 761, 770 (Tex. App.

— Fort Worth 201 9, orig. proceeding) ; see Tex. Fam. Code Ann. § 15 7 .001(b) (“The cou rt may enforce by contempt any provision of a temporary or final order.”).5 As relator points out , Family C ode Section 15 7.002(b) specifies th at the

c o ntents for a motion for enforcement of c hild support “ must include the amount owed as pr ovid ed i n the o rder, the amount paid, and the amount of arrearages
. ” Tex. Fam. Code Ann. § 157.00 2(b)(1 ) (emphas e s added). “ [ T] he Legislature has carefully crafted a fr a mework for ensuring compliance with ch i l d support orders through contempt and other enfo rcem ent mechan isms. ” Off
. of Atty. Gen. , 422 S.W.3d at 627
. “ [ A

]

re spondent ma y be found in contempt only for violations tha t are specifically pled in the moti on for e n forcement under section 157.002. ” Id. a t 630. The supreme court has instructed us that i n ma tter s of s tatut ory constru ction,

“ [

w

] here text is clear, text is determinative. ” Id. at 629 (quo ting Entergy Gulf States , Inc. v. Summers , 282 S.W.3d 433, 437 (Tex
. 2 009)) ; see Ochsner v. Ochsner , 517 S
. W .3d 717, 720 (Tex. 2016) (quoting same provision ). I n O c hsner , the court noted t hat Section 157.002(b)(1) required a trial court in a child

- support

- enf orcement action to ta ke into
account t he “ amount of arrearages, ” which could not simply be “ the amount o w ed as provided in the order. ” 517 S.W.3d at 721 ; see In re Roi sman , 651 S.W.3d 419, 435 (Tex. App.

— Houston [1st Dist.] 2022, orig. proceeding) ( explaining that Section 15 7. 0 02 se ts out the pleading requirements for e nforcement motions “ [t]o assure full

a n d complete notification ” ). RPI ’ s first amended mo tion for enfor cement as to violations 1 and 2 set out the
amount of child suppor t ow ed and the amount relator had paid as t o each but not th e amount of arrearages
. Although RPI argues that “ pleading the spe c i fic amount of t he6 arrearage is not nece ssar y if t he pleadings are sufficient to provide [relator] reasonable notice of the claims against him ” and that relator could easily calculate the amount from the facts pleaded, to agree with her would require us t o ignore Section 15 7.00 2(b) (1 ) ’ s plain language
. We s u stain relator ’ s first issue and sever out the two child

- sup port findings f rom the contempt order
. Because relator failed to challenge the trial court ’ s remaining finding, howeve r, the contempt order, as m odified, remains in p lace
. See 6 McDonald & Car lson Tex. Civ. Prac. App. Prac. § 36:8 (2d ed.) (noting tha t, generally, “ if any portion of the contempt order can stand as valid, the cou r ts will make every effort to sever the orde r and let the valid porti o n s stand ” ). B. Wai ver In his second issue, r elator argues that the trial court ’ s orders are void because he was not timely admonished, rel yin g on Family Code Section 157.163 (a) and the
tr ial court ’ s erroneous statement of law to support his argument that h e is entitled to rel ief
. Family

- law contempt proceedings are considered quasi

- criminal in nature, and their proceedings shoul d conform as nearly as practicable to those in criminal cases. In re Marks , 365 S.W.3d 843, 845 (Tex. App.

— Fort Worth 2012, orig. p roce edin g). This includes the Sixth Amendment right to counsel if the contemnor is at risk of incarceration
. Id. At a hearing on a n enforcement motion , the trial court “ must first determine whether incarceration of the r espondent is a possible result of t h e procee dings. ” Tex.7 Fam. Code Ann. § 157.163( a ) . If incarceration is a pos sible result, then the trial court

“ shall inform a respondent not r epresented by a n attorney o f the right to be

re presented by an attorney and, if the respondent is indigent, of t h e right t o the appointment of an attorney. ” Id. § 157.163(b)
. Section 157.163 does not require the trial court to info rm the a lleged contemnor of his constitutiona l righ t to remain silent. See Marks , 365 S.W.3d at 846 ( “ The trial court also went beyond th e m andates of [F ] amily [C] ode [S] ection 157.163 by informing Marks that he had the constitutional right to remain silent and th at he did not hav e to testify at the h earin g . ” ). The record reflects that relator was represented by cou nsel at the hearing; acc o r d i ngly, t he trial court did not violate Section 157.16 3. Further, while “ [m]any constitutional rights are accorded crim inal co ntem nors, includi ng the privilege agai nst s e lf

- incrimination , ” Ex parte Werblud , 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceedin g ) , t he alleged conte m nor may waive the privilege by failing to claim it
. Ex parte Tankersley , 650 S.W.2d 550 , 551 (Tex. App.

— F ort Worth 1983, orig. proceeding)
. A nd “ the trial court has no duty to inform a testif ying defendant , represented by counsel, of h i s right not to test i fy , ” Go mez v. State , No s . 02

- 19

- 00129

- CR, 02

- 19

- 00130

- CR , 2020 WL 1808484, at *2 (Tex. App.

— Fort Worth Ap r. 9, 2020, no pet.) (mem. op. , not designated for publication ) (quo ting Jo h nson v. State , 169 S.W.3d 223, 235 (Tex. Crim. App. 2 0 0 5) ) , and “ no independent duty to implement a defend a nt ’ s Fi fth Amendment pr ivilege , ” Johnson v. State , 357 S.W.3d 653, 65 8 n.3 (Tex. Crim. App. 2012)
.8 Here, after RPI testified, her counsel ca lled re l ator to testify. Her counsel ’ s first question was, “[D ] o you acknowledge that you failed to pay the full amount of child support that was due on December 1st, 20 2 4?” Relator replied , “I would have to look at my records, but I a cknowledge that I’ve been unable to pa y the full amount after I depleted my savings
. ” RPI’s couns e l objec ted to the nonresponsive answer , and the trial court sustained her objection and ask ed her whether RPI was req uesting criminal contempt. When RPI’s counsel said y es, the trial court proceeded to admonish relator abou t the privilege ag a i nst se l f

- incri mination, stating, “[Y]ou have the right to remain silent because anything you say can and will be used against you in a court of law , ” and i n form ed him that he had to asse rt the right himself and to indicate that he was refusing to answer o n the groun d s that his reply might incriminate him and that asserting that privilege would allow the trial court to make a negative inference against him o n the topic upon which the privileg e was invoked
. 3 The trial court then gave relator time

— off the r e c o rd an d outside the courtroom

— t o confer with his counsel. When relator returned fro m conferring with his counsel , he testified and did not invoke his privilege against self

- incrimination at any point. Base d on the reco rd before us, we conclude that relato r has waived his priv ilege. And in light of our disposition of his first issue, we further conclude that he

3 This last ad m oni tion pertains to civil cases, not to criminal proceedings. See Tex. Dep ’ t of Pub. Safety Officers Ass ’ n v. Denton , 897 S.W.2d 757, 763 (Tex. 1 9 9 5)
.9 wa s not harmed by his testimony

— willing or unwilling

— a bout child support. The record conclusively supports the tr ial cour t ’ s finding on the third vi o l ation , 4 which relator did not challenge in this original proce edi ng . Accordingly, we ov errule relato r ’ s
seco n d issue. III. Conclusion Because w e sustain relator ’ s first issue, we grant his petition in part and sever
o ut the two child

- sup port findin g s and r elated provisions f rom the contempt order
. Because we overrule hi s second issue, we leave the remainder of t h e contemp t orde r and its related confinement orders intact.

/s/ Elizabeth Kerr E l i z a b e th Kerr J ustice Delivere d: June 28, 2024

4 RPI produced a digital recording and transcr ip t of the Novem ber 20, 2021 voicemail from the parties ’ so n in which relator could be heard in the backgr ound telling him that she was “ one trampy woman; I don ’ t know why I ever married her. ” The trial co u r t admitted the recording and tr an script i nto ev idence o ver relator ’ s objection, which relator does not complain a bout in the instant p roceeding , and listened to the recording in open court. After listening to the recording, the trial court stated, “ With r e g ar d to vio lation 3, that is on e of the most hear tbreaking t h ings I have e ver heard, and [relator] does not appear moved at all by that. ”