Ex parte Acker

• Decision Date: 09 July 1997
• Docket Number: No. 96-0932,96-0932
• Citation: 949 S.W.2d 314
• Parties: 40 Tex. Sup. Ct. J. 905 Ex parte Mary Ann ACKER.
• Court: Texas Supreme Court

Page 314

949 S.W.2d 314

40 Tex. Sup. Ct. J. 905

Ex parte Mary Ann ACKER.

No. 96-0932.

Supreme Court of Texas.

July 9, 1997.

William E. Jones, Booker T. Morris, Houston, for relator.

Patsy Young, Houston, for respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which CORNYN, ENOCH, SPECTOR, BAKER and ABBOTT, Justices, joined.

In this original habeas corpus proceeding, relator challenges her confinement for nonpayment of child support. The trial court ordered relator incarcerated under two separate contempt orders, one relating to regular monthly child support and the other relating to a separate health insurance obligation. We hold that the first order is unenforceable because the trial court did not inform relator of her right to counsel when she appeared pro se at the contempt hearing. We further hold that the second order is unenforceable because the divorce decree provision mandating the insurance payments is too vague to enforce by contempt. Accordingly, under Texas Rule of Appellate Procedure 122, without hearing oral argument, we order relator discharged.

I. Factual Background

Relator Mary Ann Acker and Sherman Acker divorced in 1990. Sherman received custody of their only child, and the trial court ordered Mary Ann to pay monthly child support of $500, plus $50 per month to Sherman for health insurance for their child.

In 1993, Sherman moved for contempt, alleging that Mary Ann was behind in her $500 monthly support obligation. (This motion did not address the $50 per month insurance obligation.) The parties appeared for the contempt hearing on May 5, 1993, and announced to the trial court that they had reached an agreement. Mary Ann was not represented by counsel at this hearing. The court did not admonish her of her right to counsel. Under the agreement, Mary Ann admitted that she had willfully failed to make child support payments resulting in an arrearage of $8,553. The parties agreed that she should be sentenced to 180 days in jail for criminal contempt, and thereafter for coercive contempt until she paid the full arrearage. However, the parties further agreed to suspend the sentence upon Mary Ann's immediate payment of $1,000, and thereafter monthly payments of $100 against the arrearage, and Mary Ann's timely payment of the ongoing support obligation. The court rendered judgment of contempt in accordance with the parties' agreement.

Although Mary Ann paid the $1,000 lump sum, she later missed several $100 monthly arrearage payments. In 1996 Sherman moved to revoke the suspension of commitment. Sherman also filed a second, independent motion for contempt based on Mary Ann's failure to make the $50 per month insurance payments. The parties appeared for a hearing on both these motions on June 14, 1996. Mary Ann was represented by counsel at this hearing.

On the motion to revoke suspension, Sherman presented evidence that Mary Ann had not made the $100 monthly arrearage payments since June 1995. Mary Ann testified that she had been unemployed for part of 1995 and had been unable to make the payments. However, Sherman introduced her wage withholding statements showing that Mary Ann earned about $60,000 that year. The court revoked the suspension, committing Mary Ann to jail for 180 days, and thereafter until she pays the full arrearage, in accordance with the terms of the May 1993 agreed judgment. The trial court rejected Mary Ann's argument that the contempt judgment was void because the trial court did not admonish her of her right to counsel at the 1993 hearing.

On the separate contempt motion, Sherman presented evidence that Mary Ann had never made any of the $50 monthly insurance payments. The court rendered a separate contempt judgment for this nonpayment, sentencing Mary Ann to jail for 180 days for criminal contempt and thereafter for coercive contempt until she paid the $5,490 arrearage. The 180 day sentence was to run concurrently with the 180 days assessed under the first contempt judgment.

Mary Ann was confined on June 14, 1996. After unsuccessfully seeking relief from the court of appeals, she filed a petition for habeas corpus with this Court. We ordered her released on bond on October 15, 1996.

II. The First Contempt Order

Mary Ann argues that the first contempt order is void and unenforceable because the trial court did not admonish her of her right to counsel when she appeared at the original contempt hearing on May 5, 1993. The Family Code guarantees an alleged contemner's right to counsel:

If the court determines that incarceration is a possible result of the proceedings, the court shall inform a respondent not represented by an attorney of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney.

TEX. FAM.CODE § 157.163(b). This provision clearly required the court to admonish Mary Ann of her right to counsel, which the court did not do.

Sherman argues that incarceration was not a possible result of the May 1993 hearing because the parties had agreed to suspend commitment based on Mary Ann's payment of the arrearage. However, incarceration was an ultimate possibility if Mary Ann did not comply with the terms of the suspension, which is precisely what happened. Her commitment in June 1996 was based, in part, on the sentence imposed under the May 1993 agreed judgment.

Sherman further argues that Mary Ann was not indigent at the time of the 1993 hearing. However, section 157.163 requires courts to admonish pro se litigants of their right to counsel, regardless of whether they are indigent or not. Sherman misplaces his reliance on Ex parte Sustrik, 721 S.W.2d 592 (Tex.App.--Fort Worth 1986, orig. proceeding). In Sustrik, the court simply held that a non-indigent party is not entitled to appointed counsel. The case did not deal with the failure to give the Family Code statutory admonishment.

We hold that the court's failure to admonish Mary Ann of her right to counsel renders the commitment arising from the May 1993 contempt order void. See Ex parte Keene, 909 S.W.2d 507, 508 (Tex.1995); Ex parte Gunther, 758 S.W.2d 226, 227 (Tex.1988).

III. The Second Contempt Order

The divorce decree, signed November 15, 1990, requires Mary Ann to make insurance payments as follows:

Mary Ann Acker is ordered and decreed to pay $50.00 per month as her cost of insuring the child to Sherman Lloyd Acker beginning on the 1st day of June and $50.00 per month on the 1st day of each and every month thereafter.

While the decree specifies "June 1" as the beginning date, it does not specify a year. The trial court found Mary Ann in contempt for failing to make the monthly payment in December 1990 (the month following entry of the decree) and in each month thereafter. The court imposed a 180-day sentence as one punishment for these multiple acts of contempt. Mary Ann contends, however, that because the decree does not specify the year that the payment obligation begins, it is too ambiguous to enforce by contempt.

To be enforceable by contempt, a decree must "set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed upon him." Ex parte Chambers, 898 S.W.2d 257, 260 (Tex.1995). Sherman, relying on Ex parte Malone, 788 S.W.2d 411 (Tex.App.--Houston [1st Dist.] 1990, orig. proceeding), argues that, where no year is specified, the court should construe the obligation as arising immediately. In Malone, the divorce decree provided that child support payments were to commence on "November 9" without stating the year. The court held that this order was sufficiently clear to enforce by contempt, concluding that "the normal meaning of this language is that the payments were to start immediately." Id. at 411. Regardless of whether Malone was correctly decided, an issue we do not decide, it is distinguishable on its facts. Unlike in this case, the date specified for the child support payments to start in Malone--November 9--was the precise date that the decree was signed, lending support to the trial court's conclusion that the payments were to "start immediately."

Sherman does not explain why the divorce decree, signed in November 1990, recites "June" as the beginning date for the health-insurance payments. When the decree was drafted, the "June" date may have been intended to refer to June 1990, as the trial court heard the case in May of that year. Notably, the decree provides that the regular child support obligation begins on June 1, 1990. ¹ This may explain why the trial court punished relator for missing insurance payments beginning in December 1990, the first month after the decree was signed. However, while one may infer that the "June" commencement date for the insurance payments was intended to be June 1990, interpretation of the decree "should not rest upon implication or conjecture." Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex.1988). Rather, the decree must set forth the obligation in "clear, specific and unambiguous terms." Chambers, 898 S.W.2d at 260. Here, there is simply no way to determine with sufficient certainty what year the insurance obligation began. For example, the court rendering the decree could have concluded, based on its overall allocation of responsibilities between the parents, that Sherman should bear the entire insurance burden for some period of time, with Mary Ann's obligation commencing in June of some future year. While the record does not indicate that such is the case, the point is that it is not beyond the realm of reason and the decree does not preclude that conclusion.

Sherman also relies on Ex parte Payne, 598 S.W.2d 312 (Tex.Civ.App.--Texarkana 1980, orig. proceeding). The divorce decree in Payne, signed in September 1965, ordered the father to pay "the sum of Twenty and No/100 ($20.00) Dollars per week for the support and...