# Jonna G. Peltier and James Peltier v. Grant Garrison, Vogel Reanon, Nicole Hopson, Debbie Smith and Patrick Smith > Texas Court of Appeals, 3rd District (Austin) · December 23, 2016 URL: https://www.frixlaw.com/law-library/cases/4111746 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** December 23, 2016 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4111746 ## Opinion text ACCEPTED 03-16-00855-CV 14440815 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/23/2016 1:14:53 PM JEFFREY D. KYLE CLERK FILED IN 3rd COURT OF APPEALS No. 03-16-00855-CV AUSTIN, TEXAS 12/23/2016 1:14:53 PM [N THE COURT OF APPEALS JEFFREY D. KYLE Clerk 3RD JUDICIAL DISTRICT AUSTIN, TEXAS In re Mark Peltier and Jonna Peltier, Appellants APPELLANTS' MOTION FOR EMERGENCY STAY JAMIE GRAHAM & ASSOCIATES, PLLC Jamie L. Graham State Bar No. 24027335 Audrey E. Manriquez State Bar No. 24029704 Tower Life Building 310 S. St. Mary's St., Suite 2500 San Antonio, Texas 78205 Tel: (2 IO) 3 08-6448 Fax: (210) 308-5669 E-mail: jamie@jamiegrahamlaw.com Attorneys for Appellants Pelitionfhr Emergency Stay: Peltier Page 1 TO THE HONORABLE COURT OF APPEALS: 1. Appellants are Mark Peltier and Jonna Peltier. Real Party in interest is Jacek R. Bogle. Appellees are Patrick Smith and Debbie Smith. 2. An Order of Enforcement by Contempt and Suspension of Commitment (Possession or Access) against Appellants was entered on December 9, 2016. (See Exhibit "A"). It is from this order, which holds Appellants in criminal contempt, that Appellants are now appealing. 3. Appellants filed a Notice of Appeal of the Order of Enforcement by Contempt and Suspension of Commitment (Possession or Access) on December 14, 2016. (See attached Exhibit "B"). 3. Appellees filed a Motion to Revoke Suspension of Commitment and Order to Appear on December 15, 2016. (See Exhibit "C"). A hearing is set on said motion on December 30, 2016 at 9:00 a.m. in the 433 rd Judicial District Court of Comal County, Texas. Appellees seek to have Appellants pay criminal fines and placed in jail for alleged violations of the Order of Enforcement by Contempt and Suspension of Commitment regarding the possession and access of the child. 4. The underlying order is "insufficient to support a contempt conviction" because the record is void of any evidence to support same. In re R.E.D., 278 S.W.3d Petition.for Emergency Stay: Peltier Page2 850 (Tex. App.-Houston [1st Dist.] 2009). (See Exhibit "D"). The transcript of the trial court proceeding has been requested, and will show the following deficiencies: a. At no time during the proceedings was the trial court presented with the order that Appellants allegedly violated. Because the order was not before the court, there was insufficient evidence presented of Appellants' obligations under that order, or whether such order was sufficiently clear and specific to support a criminal contempt finding. b. Appellee Patrick Smith's testimony was the only evidence presented to support the contempt finding. Appellee's testimony does not support the trial court's finding that Appellant's violated the underlying order. Appellee Patrick Smith repeatedly testified he did not know or could not recall specific incidences of alleged violations, of which the trial court ultimately found Appellants guilty. 5. An emergency stay of enforcement of the order and of further proceedings in the trial comt is urgently necessary because Appellees are seeking to enforce the en-oneous contempt order for payment of criminal fines and incarceration, which will result in a wrongful denial of Appellants' libe1ty. 6. Appellants attach a certificate of compliance certifying that counsel for Appellants notified counsel for Appellees by letter that a motion for emergency stay Petition Ji;r Emergency Stay: Pellier Page3 of the trial court proceedings would be filed. Tex. R. App. P. 52.1 O(a). (See Exhibit "E") 7. Appellants request this Court grant an emergency stay of all trial court matters and of the enforcement of the void Order of Enforcement until the court hears this motion. 8. The parties have not agreed to this Motion. Argument and Authorities 9. The Court may grant temporary relief pending its determination of an original proceeding. Tex. R. App. P. 52.10. 10. This emergency stay is necessary to maintain the status quo of the pa1ties and preserve the Court's jurisdiction to consider the merits of the original proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.-San Antonio 1995, orig. proceeding). 11. Appellants attach a certification to this motion to establish the facts stated herein are true and correct. Tex. R. App. P. 102. C. Prayer 12. For the reasons stated in this motion, Appellants ask the Comt for an emergency stay to maintain the status quo of the parties and preserve the Court's jurisdiction to consider the merits of Appellants' original proceeding. Petition for Emergency S1ay: Peltier Page4 Respectfully Submitted, JAMIE GRAHAM & ASSOCIATES, PLLC Tower Life Building 310 S. St. Mary's St., Suite 2500 San Antonio, Texas 78205 Tel. (210) 308-6448 Fax (210) 308-5669 By: Jamie L. Graham State Bar No. 24027335 Audrey E. Manriquez State Bar No. 24029704 Tracy E. Ross State Bar No. 24037399 Sarah Anne Lishman State Bar No. 24086267 Attorney for Respondents jamie@jamiegrahamlaw.com irene@jamiegrahamlaw.com Petition for E1nergency Stay: Peltier Page 5 Certificate of Conference I certify that a reasonable effort was made to confer with counsel for Appellee in interest in regard to the relief requested herein. Isl Jamie L. Graham Certificate of Service I certify that a true copy of this Motion for Emergency Stay was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows: Via Facsimile: (830) 626-1414 James E. Bettersworth The Bettersworth Law Firm 110 W. Faust Street New Braunfels, Texas 78130 Isl Jamie L. Graham Petition.for Emergency Stay: Peltier Page6 Certificate of Compliance Under Texas Rule of Appellate Procedure 52.1 O(a), I certify that on December 22, 2016, I notified attorney for Appellee by facsimile that a motion for stay would be filed. Isl Jamie L. Graham Certification I hereby certify that I have reviewed the above Motion for Emergency Stay and have concluded that every factual statement in the said Motion is supported by competent evidence. Isl Jamie L. Graham SUBSCRlBED AND SWORN TO BEFORE ME on this the 23rd day of December, 2016, to ce1tify which witness my hand and seal of office. Notary Public, State of Texas Petition.for Emergency Stay: Peltier Page 7 EXHIBIT A NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA CAUSE NO. C2013-1375D IN THE INTEREST OF § IN THE DISTRICT COURT § J.R.B. § 433 JUDICIAL DISTRICT Cl § c:, vi A CHILD § COMAL COUNTY, TEXAS~ (i -·· I -1;:n -::.. o 71 ORDER OF ENFORCEMENT BY CONTEMPT AND SUSPENSION OF COMMITMENT (POSSESSION OR ACCESS) \ :,,:::: r-._. -0 On November 17, 2016 the Court heard Movants PATRICK SMITH and DEBRA SM TH's ~elion,:_:, ..,z w for Enforcement of Possession or Access. - ){~b~rv JUDGl?PRESIDJNG In th• Interest of J,R.B., a Ch/Id; Motion to Revoke Suspension of Commitment and Onlor lo Appear Page$ 8306064133 Mida petition ,,,Jth this Court seeking a writ nfhalieas corpus along with a mution fortemporaryrdief. On August 28, ::wo8, this Courtgrantdi temporary relief by staying thecommiti:nentorder. Standard of Review ou Habeas Corpus Here, the agreed ord and hearing, the court may render an appropriate order, including the granting ofa temporary injunction fDr the praserva!ion of the property and11rott1ction oftlH.' parties as deemed necessary and equitable :tnd induding an order directed to one or both parties. (7) prohibiting the ptCCS5ary living expenses! ,J Tex. Fam.Code Aun. 9 6.502 (Vernon 2006). A trial court may eninrce any tcmpnrarycourtorder in a divorce suit by punishing a violation with contempt 'l'ex. Fam.Code Ann. S 6.506 (Vernon 2006); see also fa pa rte Butler, 523 S.W.:2d 309,311 (Tex.Civ.App.- Houston [1st Dist.J 1975, no writ) (cm1rtdenied writofhal'x'as eorpns after hitdmotion for contempt). Relator is diargL>d with construclive contempt. Constrnetive contcmi~t, as opposed to dirc.,ctconlempt, involves conduct by the rdator that occur,,; outside the presence of the trial eourt Ex pa rte Gordon, 584 S. IN. 2d 686. 688 (Tcx.1979). Such. conduct inclmfos the relator's failure to comply v,ith a court order. Id. Ajudgmentofcnnn:mpt may be either civil or criminal. Kx pa rte Werblud, 536 S,W,2d 542, 545 (Tex.1976). The purpose of civil ton tempt is remedial and coercive. Id. A judgment of civil contempt exerts the judicial authority of the comi to pcrsuack the contemnor to obey an order of tha court when obedience will bcnafit an opposing !iligant. l(l, ··tmprisonment is conditional upon obedience and therefore the ciri! con1cmnor'c::uTies the keys of(th\e} prism, in (his) own pocket.'" !(l (qaoting Shil!itnni v. Cnitcd States, 384 U.S. 364,368, 86 S.C!. 1531, 1534, 16 l,.Er,l2d 622 (1966)). When a re!ator has committed civil contempt, he may prncure his release bycomplianct.: with ti)e provisions of the court's order. Id. Criminal contempt, by contrast, is punitive in nature in that the ~l'ntence is not conditioned upon a promise of future performance; rather, the contemnor i~ being punished fof;, completed act that affronted the dignity and authority of the court. Werb!ud, 536 S. \.V,2dat 545 (citing ~hillitani, 384 U.S. at:368, 86 S.CI. at 1534). Here. thejudgmentofcontemptentered against re!ator by the trial court is ajudgrnenl of both civil and criminal contempt bL'C\'as defeclivl":! because the ,illegations made in the motion to t:>nforce neither charged him t:'::·ith violating the agn:icd order nor identified the particular stock transactions he made. Due procC'.'!S requir,;:, that a constructivccontcmnor must have full notice of any charges against him and a reasonanlcopportnnity to rebut those charges. Gordon, 584 S.\V.2d al 688. The trial court must iss1re adequate legal procmmt, or in the Alternafae, Motion for Clarification"; On ,Januaiy 16, :woll, Petitioner R.E.D. testified before this Court that he had sold all is~ues of stock with tile exception of three ls~t«:!S in thl' parties' Ameritrade accow1t and that the sale gen\":'rateddose lo S6oo,ooo, The motion to enforrn ,;pecificallyalleged that re!ator admitted under oath thal he had sold 8600.000 in stock from the parties· Amentrade account, thus giving relator notice ufthea!leglcd non-compliance-relator's admission that he soi~tpcrsonalty from a commm1iLy asset. The motion !o enforce also alleged a specific date, ct? [Rdator]: Co1Teet Based on th!s testinwityandndditiorw! t:vidence pfl.'sentNl at the hearing, the trial court made the following. finding: The> {;()urt. having h~.·~d411 (l'ex.Crim.App.1971). llffause he twice testified tliat he sold stock in the patties' Ameritrad,~ acrmml~!_1ring the period lictween December 2007 nnd,Janumy2008, rdator had sufficient information in the n10tior1 lo identify the stock transactions iu question. Rebtor rdies OH fa µ\iflt' t'arm:yto argue that S.C,D.'s motion to enforce is so Jacking in specificity as to deny rclator fair notice. See 903 S. \\'.2.d 345, :141-47 (Tex.1995). Carney is inapplicable tu U.is case. In Carney, the re)atorwas gmnilf,! rdief after ajucl~menLcrcditor's motion for contempt based on the trial court's turnover order was found Jacid11g "the requisite sp&.:ificity'' ,mfficie11t for fair nol!ce. Id. at :346. In that case, the motion for con temp\ ihat charged rel a tor with guilt did not give relator notice of U1e subject matter of the mo!ion for contempt because ij'le turnover order the relator w,is held in contempt for violating ordered the turnover of broadcateiories ofa~sets and documents without identif::,ing any specific docrnnenliness and occupation. Rein tor agrees tliat tht' plain meaning of section 4-3(k) of the agn,..-..,dorder permits only !he reasonable interpretation that reh,torwas prohibited from selling the stock in the Ameritrade accorntt. liowe\·er, relator http://case!aw. fi ndlaw.corn/tx-Q(:iurt-of-appea!s/1139626,htm I 4/6 12/22/2016 In re R.E.D. j Findlaw arguiJ 4.,.1(d) is ma(!e dear when read in context. The following sections comprise the entirety of section 4.4 of the 1i,;reed urder: 4,4 Jt is furt!wrunki~ that Petitioner, R.E.n. and Respondent S.C.D. an•autlwrizedori!yas follows: a. To nmke f'Xj301ll)\!Ures and incur indebtedness for reasonable and !lecessary li,ini:; e;;penses fnr fuod, clothing, shelter, trnr,nxmai-ion and medical care; b. To make exp,:ndi!itres and incur indebtedness for reasonable attorney's foes and expenses in connection ~,;ith !his suir: c. To make withdnn,·als from accounts in finandul institutions only forU1e pmposes authorized by the C'om·t's Orderand d. To engage in t1Cl>' reasoaahJe und necessary to conduct Petitioner or Respondent's usual tmsiness and occupation. The purpose of SL'{;tion 4,4 is merely to create narrow exceptions to the prohibitions outlillL'tl in section 4.3 of the agreed ord€r of immml temporary injunctions. These exceptions allow the parties to use funds for basic living expenditures, bosiness expense;;, and legal help. 11w exception in section 4.4(d) does not modify the language in section 4.J. S.C.D. crm"t:,'Ctly statt>s that the plain meaning of section 4,:l(k) could ht' interpreted only as a dear prohl!iifion against selling personal community property, including stock in the Ameritrade account. Relator's own testimunyestablishhose characterization as community propc:iywas disputc