Ex Parte Birkhead

• Decision Date: 24 June 1936
• Docket Number: No. 7119.,7119.
• Citation: 95 S.W.2d 953
• Parties: Ex parte BIRKHEAD.
• Court: Texas Supreme Court

Page 953

95 S.W.2d 953

Ex parte BIRKHEAD.

No. 7119.

Supreme Court of Texas.

June 24, 1936.

Original habeas corpus proceeding by Claude D. Birkhead. Relator remanded to the custody of the sheriff of Fayette County.

C. C. Jopling, of LaGrange, for relator.

Moss & Moss, of LaGrange, for Mary Elizabeth Birkhead.

CRITZ, Justice.

This is an original habeas corpus proceeding instituted in this court by Claude D. Birkhead, hereinafter designated relator. The record discloses the following pertinent facts:

(1) On December 18, 1935, in a certain cause then pending in the district court of Fayette county, Tex., relator's wife obtained a judgment divorcing her from him.

(2) At the time the divorce decree was entered, relator and his wife had two minor children, aged five and seven years, respectively, whose care and custody were awarded to the divorced wife.

(3) At the time the divorce decree was entered, and as a part of the same proceeding, the court entered an order requiring relator to pay to the divorced wife, direct or through the district clerk, the sum of $45 per month, for the benefit and support of the two minor children. It was ordered that such payments should continue until the children attain the age of sixteen years, respectively. The order provides that the $45 per month shall be paid in semimonthly installments of $22.50 each, payable on the 3d and 17th days, respectively, of each month.

(4) Relator made the above semimonthly payments, as directed by the above order, up to the month of May, 1936, but failed and refused, without just cause or excuse, to make the payments due May 3 and May 17, 1936, as required by the above-mentioned order.

(5) On May 28, 1936, the divorced wife filed her petition and affidavit in the district court of Fayette county, Tex., wherein she made known to the court the fact that relator had failed and refused to make the May, 1936, payments above mentioned, and prayed that relator be cited to appear and show cause why he should not be held in contempt of court for his failure to obey and carry out the court's order regarding such payments.

(6) Relator waived notice regarding the above matter, and appeared and answered, and the cause was set down for hearing on June 3, 1936. At the hearing on such date the district court found the relator had willfully violated the above order, and had willfully failed and refused to make the payments therein required for the month of May, 1936. After making such finding, and other findings not necessary to mention here, the district court adjudged relator in contempt, and assessed against him a fine of $100. Also, the judgment of contempt ordered relator committed to jail until he should pay the above fine and cost of the contempt proceeding, and until he should pay the two defaulted installments of $22.50 each for the month of May, 1936, above described.

(7) Relator was duly committed to jail under the above contempt judgment. Application for writ of habeas corpus was then presented to this court and granted. Also, relator was admitted to bail, pending the decision of his case, by this court.

The case is before us without a statement of facts. We are therefore compelled to assume that the evidence justified the order of contempt.

It appears from the record and the argument of counsel that relator was ordered to make the payments hereinabove described, and held in contempt of court and committed to jail for refusal to obey such order, under the provisions of article 4639a, Vernon's Texas Civil Statutes, 1936 (Acts 1935, 44th Leg. p. 111, c. 39). If this statute is valid, it has been followed in this instance in every particular.

At this point we deem it expedient to here quote the above-mentioned statute. It is as follows:

"Art. 4639a. Further provision as to children, petition, judgment.—Sec. 1. Each petition for divorce shall set out the name, age, sex and residence of each child under sixteen (16) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No Court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the Court, if there are such minor children, it shall be the duty of such trial Court to inquire into the surroundings and circumstances of each such child or children, and such Court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such Court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said Court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years, or, said Court may enter a judgment in a fixed amount for the support of such child or children, and such Court shall have full power and authority to enforce said judgments by Civil Contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of Court, as in other cases. Said Court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.

"Sec. 1a. The person or persons to whom the payments above provided for are made under the judgment of the Court shall file sworn monthly reports with the Clerk of the Court before which the cause is pending setting out an itemized statement of the expenditure of such sum or sums of money as may have been received showing in detail the manner in which such money has been spent. The report so filed shall be examined and approved or disapproved by the Judge before which said cause is pending.

"Sec. 2. This Act shall be cumulative of all other laws upon the same subject, and is not intended to repeal any other law upon the subject of the care or support of such minors."

Relator contends that the above statute is unconstitutional and void, because it authorizes imprisonment for debt, in contravention of section 18 of article 1 of our State Constitution. That constitutional provision is...