Ex parte Barlow

• Citation: 899 S.W.2d 791
• Decision Date: 25 May 1995
• Docket Number: No. 14-95-00175-CV,14-95-00175-CV
• Parties: Ex parte Roger BARLOW. (14th Dist.)
• Court: Court of Appeals of Texas

Page 791

899 S.W.2d 791

Ex parte Roger BARLOW.

No. 14-95-00175-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 25, 1995.

Terri Tipton Holder, Angleton, for relator.

Lynn J. Klement, Angleton, for respondent.

Before MURPHY, C.J., and ANDERSON and HUDSON, JJ.

OPINION

ANDERSON, Justice.

In this original proceeding, Roger Barlow, relator, seeks a writ of habeas corpus alleging he is illegally restrained of his liberty by virtue of a judgment of contempt and a commitment order issued by the 300th Judicial District of Brazoria County. We grant relator's writ of habeas corpus.

Roger Barlow, relator, and Jerry "Barlow" Smith (Smith) were divorced on March 19, 1987. Relator was ordered to pay $300.00 per month as child support. In December of 1992, Smith filed a "Motion to Enforce Child-Support Order." On January 11, 1994, Smith filed her "First Amended Motion to Enforce Child-Support Order." This motion sought to enforce the child support provisions of the 1987 divorce decree. The motion alleged that relator failed to make child support payments as required.

The trial court held a hearing on Smith's motion on June 8-9, 1994. On June 24, 1994, the court entered an order holding relator in contempt. In that order, the court found that relator failed to make his monthly child support payments as required in the 1987 divorce decree from October 15, 1990, through June 15, 1993. In all, the court found that relator failed to make thirty-three payments; each failure was considered a separate violation of the divorce decree. The court found relator in contempt for each separate violation and ordered that he be confined in the Brazoria County Jail for six months for each separate violation. The court ordered the confinement to run consecutively. These findings and orders were placed under the heading "Criminal Contempt." Immediately following this section, was a section entitled "Civil Contempt." Under this heading in the June 24, 1994, order, the trial court ordered relator to remain in jail until he complied with the following terms:

1. Pay regular child support in accordance with the order on Motion to Modify in Suit Affecting the Parent Child Relationship;

2. Pay $4,000.00 on or before July 8, 1994, to Smith. Thereafter, pay Smith $50.00 a week beginning June 15, 1994, and continuing until all child support arrearages have been paid.

3. Pay $48.00 costs to the District Clerk of Brazoria County by September 10, 1994.

4. Pay $1,000.00 as reasonable attorney's fees to Lenette Terry by September 10, 1994.

The court then ordered that commitment would be suspended if relator complied with these same terms.

A few months later, Smith filed a "Motion to Revoke Suspension of Commitment." The court heard this motion on November 21, 1994. The next day, the court entered a written order finding that relator failed to comply with the suspension terms of the contempt order signed June 24, 1994. The court revoked relator's suspension of commitment and ordered relator committed to the custody of the Brazoria County sheriff to be confined "for a period of six (6) months for each of the thirty-three (33) separate violations enumerated." The order further provided that relator would remain confined until he complied with the four terms set out in the "Civil Contempt" section of the June 24, 1994, order.

Relator was jailed pursuant to the commitment order dated November 22, 1994. On February 16, 1995, relator filed a petition for writ of habeas corpus with this court. On February 23, 1995, we ordered relator released upon his posting a $2,500.00 bond. In this original proceeding, relator predicates his petition for writ of habeas corpus on five arguments, namely: (1) the trial court's judgment is void because the court failed to credit relator with the social security disability payments made to the child while relator was disabled; (2) relator was denied due process because the contempt order was not based on a motion that fairly apprised him of the allegations; (3) the trial court's judgment is void because relator is unable to pay the arrearage as ordered; (4) the trial court's findings have no evidentiary support and are therefore, void; and (5) the commitment order is void because relator was denied his right to a jury trial and relator did not affirmatively waive that right.

An original habeas corpus proceeding is a collateral attack on a contempt judgment. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). The relator must conclusively establish his right to relief. Ex parte Crawford, 506 S.W.2d 920, 922 (Tex.Civ.App.--Tyler 1974, orig. proceeding). However, contempt is not presumed to exist; rather, it is presumed not to exist. Ex parte Taylor, 807 S.W.2d 746, 748 (Tex.Crim.App.1991). A court will issue a writ of habeas corpus if the order underlying the contempt is void, Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983), or if the contempt order itself is void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). An order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law. Ex parte Friedman, 808 S.W.2d 166, 168 (Tex.App.--El Paso 1991, orig. proceeding).

In his second contention, relator asserts that the contempt and commitment orders are void because he was denied due process. Relator argues that he was denied due process because the order holding him in contempt was based on a motion that failed to fairly apprise him of the allegations against him. We agree.

Enforcement proceedings for child support orders are commenced by the filing of a motion to enforce. TEX.FAM.CODE ANN. § 14.31 (Vernon Supp.1995). A motion to enforce must give the respondent, in ordinary and concise language, notice of the provisions of the final order, decree, or judgment sought to be enforced, the manner of noncompliance, and the relief sought by the movant. TEX.FAM.CODE ANN. § 14.311(a) (Vernon Supp.1995). (emphasis added) If the movant is seeking to enforce a child support order, he or she must state in the motion: (1) the amount owed under the terms of the order; (2) the amount paid; and (3) the amount of arrearage. TEX.FAM.CODE ANN. § 14.311(b) (Vernon Supp.1995). (emphasis added) When seeking a motion for contempt, the movant must allege the portion of the order allegedly violated and must specify as to each date of alleged contempt, the amount due and the amount paid, if any. TEX.FAM.CODE ANN. § 14.312(a) (Vernon Supp.1995). (emphasis added)

Smith's first amended motion was not only a motion to enforce, but was also a motion for contempt. In the motion to enforce, Smith asked that relator "be held in contempt, jailed for six months, and/or fined $500.00 for each count alleged above." Therefore, because the motion was one to enforce and one for contempt, Smith had to comply with the requirements of section 14.311(a) and (b) and section 14.312(a).

In December of 1992, Smith filed a "Motion to Enforce Child-Support Order." ¹ Attached to that document is an "Arrearage Report" purporting to show payments made to Jerry Smith from the relator. See TEX.FAM.CODE ANN. § 14.311(c) (Vernon Supp.1995). On January 11, 1994, Smith filed a "First Amended Motion to Enforce Child-Support Order." The first amended motion superseded the original motion to enforce filed by Smith in December of 1992. Ex parte Thompson, 803 S.W.2d 876, 877 (Tex.App.--Corpus Christi 1991, orig. proceeding). See Jones v. Ignal, 798 S.W.2d 898, 901 (Tex.App.--Austin 1990, writ denied); TEX.R.CIV.P. 65. The first amended motion sought to enforce the child support provisions of the 1987 divorce decree. The motion alleged:

Respondent has failed to comply with the order described above as follows: Respondent has failed to make child support payments to Movant through the Brazoria County Child Support Office in the amounts and on the dates more particularly set forth in the attached Exhibit A which is incorporated by reference herein the same as if copied forth at length herein.

(emphasis added)

Relator has provided this court with a certified copy of Smith's "First Amended Motion to Enforce" and there is no "Exhibit A" attached to the motion. Without "Exhibit A," the motion does not comport with the requirements of sections 14.311(a) and (b), and section 14.312(a). First, without "Exhibit A," that motion does not state the "manner of noncompliance" as required by section 14.311(a). Second, it does not specify each date that relator allegedly failed to make a payment; the amount due; the amount paid by relator, if any; or the amount of arrearage. Therefore, the motion fails to satisfy the mandatory requirements of sections 14.311(b) and 14.312(a).

"Due process of law demands that before a Court can punish for a contempt not committed in its presence, the accused must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt." Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969). (emphasis added) A constructive contemnor must be given complete notification and a reasonable opportunity to meet the charges by way of defense or explanation. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). A contempt judgment rendered without proper notification is a nullity. Id. (citing Ex parte Ratliff, 117 Tex. 325, 327-28, 3 S.W.2d 406, 407 (1928)).

In Ex parte Barnett, 600 S.W.2d 252, 253 (Tex.1980), Barnett was held in contempt for failure to pay child support. The commitment order delivered to the sheriff referred to "the attached exact copy of the judgment of the court herein." Id. at 256. However, there was no judgment attached to the commitment order. Id. The court held that because there was no written judgment or order of contempt, relator was deprived of due process. Id. The court stated that without the judgment, the order failed to clearly state...