In the Interest of v. << (2012)

MEMORANDUM Opinion

Mark Wallen appeals from the trial court's order holding him in contempt and for commitment to the county jail.

Background Facts

Mark Wallen and Cathryn Maybin Wallen divorced in May 2010.   On August 16, 2010, the trial court entered an agreed modification order, and on March 8, 2011, the trial court entered a temporary restraining order.   These orders prohibited certain behaviors and communications between the parties.   After a hearing, the trial court found that Mark violated thirteen provisions of the August 16 order and the March 8 temporary restraining order and ordered Mark confined for ten days for each violation.   Mark filed a petition in this Court requesting habeas corpus relief.   We denied habeas corpus relief in Cause No. 10–11–00206–CV on July 12, 2011.

Contempt

In his first and second issues, Mark complains that the trial court erred in finding him in contempt.   A court of appeals lacks jurisdiction to review a contempt order on direct appeal.  Texas Animal Health Commission v. Nunley, 647 S.W.2d 951, 952 (Tex.1983).   Instead, the validity of a contempt order must be considered upon application for a writ of habeas corpus.  In re Reece, 341 S.W.3d 360, 370 (Tex.2011).   Mark challenged the contempt order in a petition for writ of habeas corpus.   This Court denied habeas corpus relief.   We are without jurisdiction to consider the validity of the contempt order on direct appeal.

Modification of Custody

In the third issue, Mark contends that the trial court's order holding him in contempt and for commitment to county jail modifies the custody of the child C.T.W. by placing him in the custody of his mother.   Mark was the joint managing conservator with the right to establish the primary residence of C.T.W. The contempt order provided that Cathryn has the right to designate the primary residence of the child until August 14, 2011, the time period Mark was to be confined for contempt.

Mark and Cathryn entered into a Rule 11 Agreement that was filed with the trial court on August 26, 2011.   The agreement provided that Mark and Cathryn will be joint managing conservators of the children, and that Cathryn will have the right to designate the primary residence of all three children.

Appellate courts do not decide cases in which no controversy exists between the parties.  Camarena v. Texas Employment Commission, 754 S.W.2d 149, 151 (1988).   Because Mark and Cathryn have agreed upon custody of the children, there is no controversy between the parties.   We dismiss this third issue as moot.

Conclusion

We lack jurisdiction to consider Mark's issues on appeal concerning the validity of the contempt order.   We dismiss as moot the issue concerning the modification of custody of the children.

[CV06]

AL SCOGGINS Justice