Ex parte Andrews, 17056
| Decision Date | 27 April 1978 |
| Docket Number | No. 17056,17056 |
| Citation | 566 S.W.2d 668 |
| Parties | Ex parte Ira ANDREWS, Relator. (1st Dist.) |
| Court | Texas Court of Appeals |
Carol J. Carrier, Houston, for appellant.
G. Keith Anders, Houston, Donna M. Bobbitt, Harris County Child Support Enforcement Division, Houston, for appellee.
Relator brings this original habeas corpus proceeding, contending that the judgment of contempt and commitment order are void because he is unable, through no fault of his own, to obey the court's order.
The order of commitment dated October 6, 1977, finds relator to be in arrears of child support payments in the total sum of $900.00, adjudges his punishment for such contempt at confinement in the county jail for a period of one day and directs that he be further confined until he shall have purged himself of the contempt by paying the sum of $400.00, as child support payments and court costs.
Attached to the back of relator's application for writ of habeas corpus is a typed statement, signed but not sworn to by relator, in which he states that on October 6, 1977, he did not have any money or any means of obtaining money, and that he was presently unemployed and without funds.
Relator has filed a statement of facts containing his testimony given at the contempt hearing. He testified that he had received a back and leg injury in August, 1976, prior to the time his wife filed the application for contempt, and that at the time of the hearing he was not working. He could not lift anything, could hardly walk and was under a doctor's care. He had filed a workman's compensation suit for damages resulting from the accident in which he had been injured, and his lawyer was letting him drive a 1969 Cadillac to go back and forth to the doctor. He was not receiving weekly compensation checks, but had received a check for approximately $1,600.00 in February, 1977.
Where a party charged with contempt for failure to comply with a court order requiring the payment of money, shows that such failure resulted from poverty, insolvency, or other cause not attributable to his own fault, such showing will ordinarily relieve him from the consequences of contempt. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967). However, it is such party's burden to show the basis for his inability to comply with the court's order. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955), and the evidence presented on behalf of the party charged must conclusively establish his involuntary inability to perform. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955).
Where the party charged with contempt claims that he was financially unable to make the required payment, he ordinarily must establish (1) that he lacked sufficient personal or real property which could be sold or mortgaged to raise the needed sum; (2) that he had unsuccessfully attempted to borrow the sum from financial institutions; (3) and that he knows of no other source...
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Ex parte McIntyre
...no writ) but held not to be applicable because the relator was not indigent. The absence of indigency also was a factor in Ex parte Andrews, 566 S.W.2d 668, 670 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ), where the Court commented that the relator's argument that he was denied due pr......
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...established his inability to purge himself of the contempt and obtain his release. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967); Ex parte Andrews, 566 S.W.2d 668 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ); Ex parte Hennig, 559 S.W.2d 401 (Tex.Civ.App.--Dallas 1977, no writ). On that ......
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