in Re Pamela Janson

IN THE SUPREME COURT OF TEXAS
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No. 19-1109
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IN RE PAMELA JANSON, RELATOR

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ON PETITION FOR MANDAMUS
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PER CURIAM

In this mandamus proceeding, Pamela Janson (Mother) argues an order holding her in

criminal contempt is ambiguous and unenforceable. The court of appeals denied Mother’s

mandamus petition, but we agree with Mother and conditionally grant relief.

Mother and Richard Cheng (Father) (collectively, the parents) are joint managing

conservators of their two children (Daughter and Son). Upon the parents’ separation, the trial court

entered an agreed order that included a section addressing the children’s extracurricular activities.

This section provided that (1) “Mother and Father shall place each child in one extracurricular

activity at a time;” (2) the parents’ “agreement as to which extracurricular activity shall be in

writing;” (3) each parent, during his or her time of possession, will transport each child to the

agreed-upon activities; (4) if the parent having possession is unable to do so, the parent will notify

the other parent and make the child available so the other parent can transport the child; (5) each

parent can independently choose to enroll the children in additional extracurricular activities, but

the other parent can choose, “at their elective,” whether to transport the child to such additional

activities during that parent’s time of possession; and (6) the parents will each pay one-half the

costs of the children’s extracurricular activities. At the end of this section, the order recited the
parents’ acknowledgement and agreement that, “At the time of this agreement . . . [Son] is enrolled

in baseball and [Daughter] is enrolled in Soccer.”

After the agreed order became effective, Son completed his baseball season and Daughter

completed her soccer season. Mother and Father then texted and emailed in an attempt to agree on

other activities in which to enroll them. Both children were subsequently enrolled in tennis. Son

was also subsequently enrolled in tae kwon do.

Father then decided to enroll Daughter in an indoor soccer league, which involved different

teams, coaches, and players than the outdoor soccer league in which Daughter was enrolled when

the agreed order became effective. Father informed Mother that he was enrolling Daughter in the

indoor soccer league and requested that Mother transport Daughter to her practices and games

when Mother had possession, but Father acknowledged that Mother was not “legally obligated” to

do so. Both Mother and Father apparently believed this new soccer league was an “additional”

activity to which Mother could transport Daughter “at [her] elective.”

After Mother failed to transport Daughter to some of her indoor soccer activities, Father

apparently came to understand the agreed order differently. Father’s attorney sent a letter to Mother

demanding that she transport Daughter to her indoor soccer activities. Father also began sending

Mother text messages and emails, threatening to file an enforcement action and hold Mother in

contempt if she failed to comply.

After Mother continued to fail to transport Daughter to some of her indoor soccer activities,

Father filed an enforcement action alleging Mother violated the agreed order. Specifically, Father

alleged that because the agreed order identified soccer as Daughter’s agreed-upon activity, the

order required Mother to (1) transport Daughter to her soccer activities, or (2) if she was unable to

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do so, notify Father that she was unable to and (3) make Daughter available so Father could

transport her. Father alleged that Mother did none of these three things for sixteen different soccer

activities, resulting in forty-eight separate violations of the agreed order. Father also alleged that

Mother failed to transport Son to one of his tae kwon do activities, resulting in three additional

violations.

After a hearing at which Mother and Father testified, the trial court signed an enforcement

order finding Mother in contempt for the forty-eight violations of the agreed order related to soccer.

The enforcement order committed Mother to jail for 180 days but suspended the commitment and

placed Mother on two years’ deferred adjudication for each violation, to run concurrently. It also

ordered Mother to pay $1,500 of Father’s attorney’s fees. The trial court based its violation

findings, in part, on the parents’ acknowledgement in the agreed order that Daughter was enrolled

in soccer when the agreed order was entered. Because neither party produced a written agreement

establishing that Daughter had subsequently enrolled in a new agreed-upon activity, the trial court

reasoned that soccer remained Daughter’s agreed-upon activity, rather than an “additional” activity

to which Mother could choose to transport Daughter at Mother’s “elective.”

Based on this reasoning, the trial court found that Mother violated the agreed order by

failing to either transport Daughter to her soccer activities or give Father notice and allow him to

transport her. The trial court found no violations with respect to Son, however, because the agreed

order specified that Son was enrolled in baseball and neither party produced a subsequent writing

changing Son’s agreed-upon activity to tae kwon do.

Notably, the trial court also found that the agreed order’s provision requiring the parents to

agree in writing to “place each child in one extracurricular activity at a time” was too ambiguous

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to be enforced by contempt. Specifically, the court concluded that the order did not make clear

whether each parent could enroll each child in a separate agreed-upon activity, or whether the

parents had to agree upon one activity per child. The court thus modified the order to clarify that

“Mother may place each child in one extracurricular activity at a time and Father may place each

child in one extracurricular activity at a time. The designation of the extracurricular activity shall

be in writing.”

Mother asserts that the agreed order is too ambiguous to be enforced by contempt because

(1) it specifies only that Daughter was enrolled in soccer at the time of the agreed order, not that

soccer would always remain Daughter’s agreed-upon activity until changed by a subsequent

writing; (2) it fails to explain how or when Daughter’s activity would no longer be soccer and,

instead, reasonably suggests that Daughter ceased being “enrolled in” soccer when the outdoor

soccer season ended; and (3) the trial court’s finding necessarily relied on the provision that the

trial court itself found too ambiguous to be enforced by contempt. We agree with Mother.

“A criminal contempt conviction for disobedience to a court order requires 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). Because contempt orders are not appealable, they are reviewable only by writ of

mandamus or habeas corpus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding).

When the contemnor is not jailed, the proper vehicle to challenge a contempt order is a writ of

mandamus, which requires the contemnor to show that the trial court abused its discretion. Id.

Because criminal contempt is a harsh sanction, we have strictly required clarity in the

underlying court orders. See Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding)

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(“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree,

the decree must spell out the details of compliance in clear, specific and unambiguous terms so

that such person will readily know exactly what duties or obligations are imposed upon him.”);

see also Ex parte Glover, 701 S.W.2d 639, 640–41 (Tex. 1985) (orig. proceeding) (holding that an

order that failed to specify whether a party owed simple or compound interest could not support a

contempt finding). A trial court necessarily abuses its discretion if it holds a person in contempt

for violating an ambiguous order. See Long, 984 S.W.2d at 626. To avoid such ambiguity, the

order allegedly violated “must spell out the details of compliance in clear, specific and

unambiguous terms so that such person will readily know exactly what duties or obligations are

imposed upon him.” Slavin, 412 S.W.2d at 44. The order’s interpretation may “not rest upon

implication or conjecture.” Id. (quoting Plummer v. Superior Court, 124 P.2d 5, 8 (Cal. 1942)).

Rather, the alleged violation “must be directly contrary” to the order’s express terms. Ex parte

Blasingame, 748 S.W.2d 444, 446 (Tex. 1988). If the order’s “interpretation requires inferences

or conclusions about which reasonable persons might differ,” it cannot support a contempt

judgment. Chambers, 898 S.W.2d at 260. But any alternative constructions must be reasonable:

“The order need not be full of superfluous terms and specifications adequate to counter any flight

of fancy a contemnor may imagine in order to declare it vague.” Id. (citing Ex parte Johns, 807

S.W.2d 768, 774 (Tex. App.—Dallas 1991, orig. proceeding)).

Under this standard, the agreed order at issue here cannot support the contempt order

because it does not “set forth the terms of compliance in clear, specific, and unambiguous terms.”

Ex parte Acker, 949 S.W.2d 314, 317 (Tex. 1997) (orig. proceeding) (quoting Chambers, 898

S.W.2d at 260). Although the agreed order states that Daughter was enrolled in soccer at the time

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of the agreed order, it is silent as to Daughter’s agreed-upon activity at the time of the alleged

violations. “The allegedly contemptuous acts must be directly contrary to the express terms of the

court order.” Blasingame, 748 S.W.2d at 446 (emphasis added). In finding Mother in contempt,

the trial court necessarily inferred that the children’s agreed-upon activities would remain as stated

until changed by a subsequent written agreement, which is why the court found violations as to

Daughter’s soccer activity but not as to Son’s tae kwon do activity. Yet the agreed order never

expressly addresses that question. Cf. Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d

624, 632 (Tex. 2018) (“A contract that is silent on a matter cannot speak to that matter with

unmistakable clarity . . . .”). As Father himself concedes, Daughter stopped participating in outdoor

soccer after the trial court entered the agreed order and began participating in tennis until Father

unilaterally enrolled her in indoor soccer.

The agreed order is, at best, ambiguous as to whether soccer remained Daughter’s agreed-

upon activity at the time of the alleged violations. It is “not beyond the realm of reason” that

Mother and Father intended to agree that Daughter’s agreed-upon activity was soccer only until

the outdoor soccer season ended or she was enrolled in another activity. Acker, 949 S.W.2d at 317.

Indeed, Father initially agreed that Mother was not obligated to take Daughter to her indoor soccer

activities, conceding that indoor soccer was an “additional” activity to which Mother could

transport Daughter “at [Mother’s] elective.” Father now argues that Mother’s interpretation is

unreasonable, even though they both previously interpreted the agreed order exactly that way.

Because Mother could reasonably have understood that soccer was Daughter’s agreed-upon

activity only until the outdoor soccer season ended, and the agreed order does not clearly establish

that soccer was Daughter’s agreed-upon activity at the time of the alleged violations, the agreed

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order was not sufficiently clear to support the trial court’s contempt finding. See Chambers, 898

S.W.2d at 260.

Moreover, the trial court found the agreed order’s provision requiring the parents to agree

in writing to “place each child in one extracurricular activity at a time” too ambiguous to be

enforced by contempt, and thus modified the order to clarify that provision. Because no other

provision imposed a duty on Mother with respect to soccer at the time of the alleged violations,

any violations necessarily involved violations of the provision the trial court found too ambiguous

to be enforced by contempt.

Because a trial court abuses its discretion by holding a person in criminal contempt for

violating an ambiguous order, and because Mother has no appellate remedy, we hold Mother is

entitled to her requested relief. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without

hearing oral argument, we conditionally grant mandamus relief directing the trial court to vacate

its order holding Mother in contempt. Our writ will issue only if the court fails to comply.

Opinion delivered: December 18, 2020

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