In re Braden, 2015 Tex. App. LEXIS 12196

Background

Relator Jennifer Braden and Father (living in New York) are joint managing conservators of one child; relator has exclusive right to designate the child’s primary residence in TX and NY per Nov. 22, 2013 order.
Father sued to enforce possession and alternatively to modify after alleging relator committed multiple violations, including failing to surrender the child for a Jan. 17, 2014 four‑day visit to New York.
The associate judge (Judge Armatys) held a hearing, found relator in contempt for failing to surrender the child for the Jan. 17, 2014 visit, suspended a 60‑day confinement sentence, awarded Father 62 days of make‑up possession, $5,088.50 (including $4,500 attorney’s fees and $588.50 airline costs), and ordered monthly payments toward the judgment.
Relator sought rehearing and de novo review; Judge Armatys signed amended contempt and modification orders on Feb. 27, 2015; relator then filed this mandamus asking the presiding judge (Judge Pope) to vacate the amended contempt order.
This Court reviewed whether (1) contempt finding for the Jan. 17, 2014 failure was supported, and (2) portions of the remedial order (attorney’s fees enforceable by contempt, 62 days make‑up possession, $588.50 airline costs) were legally permissible.

Issues

Issue	Braden's Argument	Father's Argument	Held
Was relator properly held in contempt for failing to surrender child for Jan. 17, 2014 visitation?	Father failed to provide proper unaccompanied‑minor ticket and/or deliver ticket, so Braden could not comply.	Father purchased unaccompanied‑minor e‑ticket, provided required flight details; complied with order.	Contempt affirmed—evidence shows Father purchased unaccompanied‑minor ticket and provided required info; Braden failed to prove involuntary inability to comply.
Are the attorney’s fees ($4,500) enforceable by contempt?	Fees may not be enforced by contempt because fees include work on modification (non‑enforcement) and Father didn’t segregate enforcement vs. modification fees.	Father sought fees for enforcement and modification; court awarded $4,500 and characterized enforcement remedies including contempt.	Reformed—trial court abused discretion by making entire $4,500 enforceable by contempt; fees must be treated as debt absent segregation.
Was awarding 62 days of make‑up possession appropriate for a 4‑day denial?	Make‑up award compensates lost possession.	Court has discretion under Fam. Code §157.168 to award additional possession to compensate.	Reformed—62 days exceeds the “same amount of time” requirement; court must vacate and award additional possession consistent with statute.
Were airline costs properly awarded at $588.50?	Father incurred $588.50 (including $300 cancellation fee from other trip) and is entitled to full reimbursement.	Father produced evidence of $288.50 for the Jan. 17 no‑show and a separate $300 cancellation fee from a different (2013) trip.	Reformed—only $288.50 is supported for the Jan. 17, 2014 visitation; $300 tied to a different trip cannot be awarded for this contempt finding.

Key Cases Cited

In re Long, 984 S.W.2d 623 (Tex. 1999) (mandamus available to review nonconfinement contempt)
Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995) (elements and willfulness standard for criminal contempt)
In re Reece, 341 S.W.3d 360 (Tex. 2011) (mandamus standard: clear abuse of discretion and no adequate appellate remedy)
In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379 (Tex. 2005) (definition of clear abuse of discretion)
Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013) (limits on using contempt to enforce attorney’s fees; characterization of fees in modification suits)
In re Henry, 154 S.W.3d 594 (Tex. 2005) (constitutional prohibition on imprisonment for debt; debt enforcement remedies contrasted with contempt)