Doss v. Doss, 1135

• Decision Date: 26 March 1975
• Docket Number: No. 1135,1135
• Citation: 521 S.W.2d 709
• Parties: James Elmer DOSS, Appellant, v. Carolyn Ann DOSS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 709

521 S.W.2d 709

James Elmer DOSS, Appellant, v. Carolyn Ann DOSS, Appellee.

No. 1135.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 26, 1975.

W. N. Shaw, Freeport, for appellant.

Weldon H. Berry, Houston, for appellee.

COULSON, Justice.

This is a suit affecting the parent-child relationship.

The Court of Domestic Relations of Brazoria County, Texas, on March 10, 1970, entered a decree of divorce dissolving the marriage between Carolyn Ann Doss and James Elmer Doss. In said decree, Carolyn Ann Doss was granted custody of the two minor children of the marriage subject to specified periods of visitation for James Elmer Doss. The decree further ordered James Elmer Doss to pay the sum of $32.50 per week for the support and maintenance of the two minor children.

On July 3, 1974, Carolyn Ann Doss filed a 'Motion to Modify Support Order'. Thereafter, an order was issued requiring that James Elmer Doss show cause why the support previously ordered should not be increased. Additionally, on July 3, 1974, Carolyn Ann Doss filed a 'Motion for Contempt of Court' complaining of James Elmer Doss. She contended that he was in contempt of the orders entered on March 10, 1970, and was in arrears in the payment of child support. The petitioner requested an award of her reasonable attorney's fees in the amount of $100.

James Elmer Doss answered the motion to modify support by a special exception contending that the motion of Carolyn Ann Doss did not comply with the provisions of Tex.Family Code Ann. § 11.08, V.T.C.A. (1975), and generally denied the allegations contained in the motion. In addition thereto, James Elmer Doss filed a cross-action seeking a change in possessory rights and requesting that he be granted the right and privilege of having the children with him during alternate weekends of each month from 6:00 P.M. Friday to 6:00 P.M. Sunday, for a period of two consecutive weeks in the summer, and on alternate Thanksgiving, Christmas and Easter Holidays.

James Elmer Doss answered the motion for contempt by special exception contending that the motion did not inform him of the amount of the arrears, or the date or dates on which he was allegedly in default in support payments. In addition, he generally denied the allegations in the motion for contempt.

On August 21, 1974, the court heard the special exceptions of James Elmer Doss to the motions of Carolyn Ann Doss to modify the support order and to hold James Elmer Doss in contempt of court. After the hearing, the trial court sustained the special exception of James Elmer Doss to the motion of Carolyn Ann Doss to modify the support order. However, the court granted Carolyn Ann Doss leave to file a trial amendment pursuant to Texas Rules of Civil Procedure, rule 66. The special exception of James Elmer Doss to the motion to hold him in contempt of court was overruled.

The court proceeded immediately thereafter, on August 21, 1974, to consider the said motions on their merits. After hearing the evidence of the parties and the arguments of their attorneys, the trial court entered its order. Among other things, the court found that the circumstances had materially and substantially changed since the entry of the order sought to be modified. An order was entered providing that: 'James Elmer Doss be and he is hereby ordered to pay as child support no less than Sixteen and 25/100 ($16 .25) Dollars per week per child as support for such children or twelve (12%) percent of his gross pay per child per week whichever is greater, . . ..' By separate order, the court found that James Elmer Doss was $166 in arrears in the payment of child support on the date of the filing of such motion to hold him in contempt. The court, therefore, held James Elmer Doss to be guilty of contempt of court. The court found that subsequent to the filing of said motion and prior to the hearing, James Elmer Doss had paid all arrearage and thereby purged himself of contempt and should not be punished therefor. The court awarded attorney's fees of $100 to the attorney of Carolyn Ann Doss in connection with the contempt proceedings. Finally, the court granted to James Elmer Doss a modification in the visitation privileges as requested.

James Elmer Doss (appellant) has perfected his appeal from the orders entered by the trial court insofar as those orders modified the support payments, and to the extent that he was held in contempt of court and ordered to pay $100 attorney's fees. Carolyn Ann Doss (appellee) has not filed a brief in this case.

The appellant's first six points of error challenge the actions of the trial court in holding him in contempt of court. Points 1, 2, and 3 challenge the actual order of the court holding him in contempt, while points 4, 5, and 6 challenge the order of the court awarding attorney's fees in the sum of $100 to the attorney representing Carolyn Ann Doss in connection with the contempt proceeding.

The appellant asserts that in this case, review of the contempt order is proper. He argues that as there was no commitment ordered by the trial court, the remedy of habeas corpus, as the usual method of review of a contempt order, would not be available. He contends that, in the absence of habeas corpus, review by appeal is proper.

As a general principal, the only remedy for the review of a contempt proceeding is by writ of habeas corpus. In such a review, the appellate court is limited to the determination of whether or not the commitment in question is void. In the absence of commitment, the remedy of habeas corpus is not available. Ex Parte Cardwell, 416 S.W.2d 382, 384 (Tex.Sup.1967); Ex Parte Beamer, 116 Tex. 39, 285 S.W. 255 (1926); Ex Parte Putnam, 456 S.W.2d 916 (Tex.Crim.App.1970); Ex Parte Cox, 479 S.W.2d 110 (Tex.Civ.App.--Houston (1st Dist.) 1972, no writ).

There is some authority for the appellant's position found in the opinion of the Supreme Court of the State of Texas in Deramus v. Thornton, 160 tex. 494, 333 S.W.2d 824, 827 (1960). In Deramus the petitioner sought a writ of mandamus from the Supreme Court to direct the district court to vacate and expunge a contempt judgment upon which an order of commitment had not been issued. The request of the petitioner was refused, but the Supreme Court made the following remark:

We are not to be understood as saying, however, that there may not arise conditions involved in contempt matters where the writ of habeas corpus would not be adequate and where mandamus would be the proper remedy.

It is not necessary for this Court to determine whether or not the contempt matter before us fits into that hypothetical situation in which appeal might be a proper remedy. In reviewing an order for contempt, this Court is limited to the determination of whether or not the action of the trial court is void for lack of jurisdiction. Ex Parte Beamer, Supra; Ex Parte Cox, Supra. In the case before this Court, it is clear that the trial court had authority to hold the appellant in contempt and to adjudge attorney's fees against him . Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.--Houston (1st Dist.) 1974, no writ); Clark v. Clark, 496 S.W.2d 659 (Tex.Civ.App.--Waco 1973, no writ); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.--Houston 1965, writ ref'd n.r.e.) The appellant's first six points of error are overruled.

Appellant's points of...