The Case of the Omitted Sentence
A recent Texas Supreme Court decision, In re: Coppock, No. 08-0093 (Tex. Feb. 13, 2009), begins:
To be enforceable by contempt, a judgment must clearly order or command a party to perform the obligations imposed and the terms for compliance must be clear and unequivocal. Because the judgment challenged in this proceeding lacks the necessary clarity, we grant the petition for writ of habeas corpus and set aside the order of contempt as void.
So what part of the judgment (a divorce decree) was unclear? The trial court found that a permanent injunction should be granted to prohibit the parties from taking a list of actions, including communicating with each other "in a coarse or offensive manner." The court ruled that the injunction should be effective immediately. The parties even agreed that the divorce decree would be enforceable as a contract. Why, then, did the Texas Supreme Court grant the former wife's petition for relief after the trial court held her in contempt for repeatedly communicating with the former husband "in a coarse or offensive manner?"
One might suspect that what amounts to "coarse" or "offensive" is so inherently subjective that no one really knows what conduct is forbidden. One might also guess that the Texas Supreme Court threw out the contempt judgment because the First Amendment does not prohibit "coarse or offensive" conduct. Although the Court discussed both issues, it decided the case on a different ground altogether: the lack of an injunction in the divorce decree.
A court order must actually be an order. A court cannot dance around a subject but must specifically and expressly order a person to do or not to do something for the court's order to be enforceable by contempt. In this case, standard, form language like this was left out of the divorce decree:
IT IS ORDERED that the parties, their agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise are permanently enjoined from:
Had the list of forbidden actions been preceded by a paragraph like this one, then the Court would have reached one or more of the issues it passed over.
