Carlson v. Johnson, 13556

• Decision Date: 08 October 1959
• Docket Number: No. 13556,13556
• Citation: 327 S.W.2d 704
• Parties: William F. CARLSON, Jr., Relator, v. Honorable Byron JOHNSON, District Judge, Respondent.
• Court: Texas Court of Appeals

Page 704

327 S.W.2d 704

William F. CARLSON, Jr., Relator, v. Honorable Byron JOHNSON, District Judge, Respondent.

No. 13556.

Court of Civil Appeals of Texas, Houston Oct. 8, 1959.

Ellis F. Morris, Cesare J. Galli, Jr., Houston, for relator.

Albert P. Jones, Houston, for respondent.

BELL, Chief Justice.

This is an original proceeding in this Court, wherein relator seeks a writ of mandamus against the Honorable Byron Johnson, Judge of the 80th District Court of Harris County, Texas.

The petition filed by relator, on leave granted, alleges that on July 31, 1953, a final judgment was rendered in the cause of Lorraine N. Carlson v. William F. Carlson, No. 414,874 in the 80th District Court. The certified copy of the judgment furnished as a part of the application shows that Lorraine N. Carlson was granted a divorce from William F. Carlson. The custody of the minor child was granted Mrs. Carlson and Mr. Carlson was given certain visitation rights. Mr. Carlson was directed to make certain support payments. The petition then alleges that on September 29, 1959, Mr. Carlson filed a motion in the 80th District Court, by which he charged that Mrs. Carlson had failed and refused to comply with the judgment, and asked that Mrs. Carlson be cited to appear and show cause why she should not be held in contempt. It is then alleged that respondent was requested to fix a date for hearing and order the issuance of notice to Mrs. Carlson, but that respondent refused to do so. Instead of fixing a date for hearing, the respondent entered an order purportedly transferring the case to the Court of Domestic Relations No. 2 of Harris County.

Relator takes the position that the acts alleged to constitute contempt having occurred before the case was transferred, only the 80th District Court has jurisdiction to hear the motion charging contempt for violating its judgment.

The respondent takes the position that the Act of the Legislature creating said Court of Domestic Relations authorizes the transfer by any District Court of Harris County of any case involving domestic relations to said Domestic Relations Court and authorizes such Court to hear such causes as are transferred.

The 56th Legislature passed an act creating two Domestic Relations Courts for Harris County. Acts 56th Legislature 1959, Ch. 242, p. 540. The courts were designated Domestic Relations Court No. 2 and Domestic Relations Court No. 3. The Act vested these courts with jurisdiction, among other things, to hear and determine divorce, child custody and support cases. Actually the Act in effect gave these two courts concurrent jurisdiction with the District Courts of domestic relations matters. Section 4 of the Act provides that the District Courts may transfer any and all such cases pending in such courts to either or both of the Domestic Relations Courts including all filed papers and certified copies of any orders theretofore entered in such cases.

We have reached the conclusion that under the facts of this case the respondent had no authority to transfer the case to the Domestic Relations Court No. 2 for that Court to hear the motion for contempt, but respondent should have fixed a date for hearing the motion and ordered the issuance of the requisite notice to Mrs. Carlson.

We find this case indistinguishable from Ex parte Gonzalez, 111 Tex. 399, 238 S.W. 635, 636, which was decided by our Supreme Court. We fail to find where such decision has since been departed from. In the Gonzalez case the 65th District Court of El Paso County had, in connection with a divorce proceeding, enjoined relator from disposing of his property pending final trial of the case. The temporary injunction issued in May, 1921. In July of that year relator sold some property in violation of the injunction. On October 24, 1921, the judge of the 65th District Court, pursuant to the authority conferred by Article 30, Subd. 34, Vernon's Revised Statutes, 1918 Supplement, transferred the case to the 41st District Court of El Paso County. The day after the transfer the wife of relator filed an affidavit in the 41st District Court charging violation of the injunction by reason of the sale of the property in July. Relator was held in contempt and sentenced to three days in jail. In an original proceeding in the Supreme Court he sought his discharge, contending the 41st District Court had no jurisdiction. The Court sustained his position and ordered his discharge. The Court said:

'The Sixty-Fifth and Forty-First district courts of El Paso county are separate and distinct courts. The jurisdiction of each is plenery and exclusive as to cases filed therein, until a transfer in made in accordance with the statute. Neither court is the agency of the other for the purpose of inflicting punishment, or for any other purpose. The power to punish for contempt, whether expressly conferred by some positive enactment or regarded as incident to jurisdiction conferred upon the court, exists for the purpose of enabling it to compel due decorum and respect in its presence, and due obedience to its judgments, orders, and process. 6 Ruling...