Ex parte Blackmon, 16577

• Decision Date: 02 October 1975
• Docket Number: No. 16577,16577
• Citation: 529 S.W.2d 570
• Parties: Ex parte Larry Julian BLACKMON, Relator. (1st Dist.)
• Court: Texas Court of Appeals

Page 570

529 S.W.2d 570

Ex parte Larry Julian BLACKMON, Relator.

No. 16577.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Oct. 2, 1975.

K. D. Kennan, Houston, for appellant.

Anthony L. Vetrano, Jr., Houston, for appellee.

EVANS, Justice.

Relator, Larry Julian Blackmon, filed this original petition for writ of habeas corpus, seeking review of an order holding him in contempt for failure to make child support payments. The order of commitment directed that relator should be confined in the county jail for a period of sixty days and until he should purge himself by paying his former wife, Patricia Louise Blackmon, the amount the court found relator to be in arrears, the sum of $1,000.00, and costs of court, including $200.00 attorney's fees.

We sustain relator's contention that he was denied due process in that the court overruled his motion for continuance and proceeded with the hearing in his absence.

Whether due process has been accorded to a party must generally be determined by an examination of the entire record, including all evidence presented at the contempt hearing. Ex parte Cox, 479 S.W.2d 110 (Tex.Civ.App.--Houston (1st) 1972, no writ). We briefly review the sequence of proceedings, as evidenced by the petition for habeas corpus and by the record made upon hearing of relator's motion for continuance and of the petition for contempt.

The parties were divorced by decree dated July 17, 1972 under the terms of which Patricia Blackmon was granted custody of the minor child and relator was ordered to pay $125.00 per month as child support, $27.00 of which was to be paid directly to Mrs. Blackmon and $98.00 to 'the nursery directly for the minor child.' By order entered November 25, 1974 in a related action filed by relator seeking modification of the original divorce decree, relator was named managing conservator of the minor child and ordered to continue making support payments in the amount of $125.00 monthly, but the modification order provided that the first payment was to be made to Harris County Probation Department on or before November 29, 1974 and all payments thereafter were to be paid into 'a savings and loan association' to be held in trust for the use and benefit of the child pending further order of the court. On September 17, 1974, Patricia Blackmon had filed a habeas corpus action seeking return of the child to her and on October 4, 1974, the court by docket entry ordered return of the child to her by 12:00 noon on October 5, 1974. The written order to this effect was signed and entered on January 3, 1975, and on April 2, 1975, the trial court by interlineation purported to amend the order so as to require the return of the child on April 4, 1975. On April 1, 1975, Patricia Blackmon filed another petition for habeas corpus, asserting that she was entitled to have the child returned to her under the provisions of the divorce decree, and upon response filed by Larry Blackmon asserting that the issues had been determined by the court's modification order of November 18, 1974, the court, on April 4, 1975, dismissed that action on the ground that it did not have jurisdiction. However, on May 30, 1975, the court entered an order which purported to reinstate that proceeding on its docket, and by separate order on that same date, the court ordered that the child be returned to Patricia Blackmon on June 1, 1975.

This contempt proceeding was filed by Patricia Blackmon on April 1, 1975, and initially set for hearing on June 12, 1975. The record does not reflect that relator was served with copy of the original contempt motion, but the record shows that relator did respond to the amended petition for contempt which was set for hearing on June 19, 1975. In her amended petition for contempt, Patricia Blackmon complained of relator's failure to make the child support payments as required by the terms of the original divorce decree and also complained that relator had failed to return the child to her on June 1, 1975, as directed by the aforementioned order.

On June 18, 1975, the day prior to the setting date for the contempt hearing, the trial court proceeded to hear relator's motion for continuance. In this motion relator asserted that he had been involved in an accident and had been hospitalized in the Fayette Memorial Hospital in La Grange, Texas since June 2, 1975, and was unable to leave same for the purpose of appearing in court. Attached to relator's motion for continuance was a statement bearing the letterhead of James T. Makinson, M.D., Physician and Surgeon, La Grange, Texas, which was apparently signed by Dr. Makinson, and which stated: 'Larry Blackmon will be hospitalized for 1--2 more weeks with severe neck injury, will be unable to travel for 6 weeks.'

While Dr. Makinson did not swear to the truth of this statement, relator's attorney verified the statements in the motion to be true and correct. A second motion for continuance, apparently filed on June 18, 1975, set forth relator's further contention that he had been unable to secure certain testimony needed for his defense, but that motion lacked proper verification since the acknowledgment stated only...