Ex parte Boyle, 16838

• Decision Date: 02 December 1976
• Docket Number: No. 16838,16838
• Citation: 545 S.W.2d 25
• Court: Texas Court of Appeals
• Parties: Ex parte A. R. BOYLE, Jr., Relator. (1st Dist.)

Page 25

545 S.W.2d 25

Ex parte A. R. BOYLE, Jr., Relator.

No. 16838.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Dec. 2, 1976.

Rehearing Denied Jan. 6, 1977.

Kilgarlin, Dixon & Hancock, Warren E. Hancock, Jr., Houston, for relator.

PEDEN, Justice.

In this original Habeas corpus proceeding the relator, Mr. A. R. Boyle, Jr., seeks to be discharged from custody after being found in contempt of court for failure to pay child support in an 'orderly, regular, and due manner.' He was ordered held for one day and until payment of court costs, including an attorney's fee of $150. The record consists of the statement of facts, the application for writ of habeas corpus, and copies of the divorce decree, the contempt order, the docket sheet, the commitment order, and the child support records.

The relator contends in his petition for a writ of Habeas corpus that 1) the commitment order is void because he was denied due process of law in that he did not have ten days' notice of the hearing (as provided by § 14.09, Vernon's Texas Family Code and Rule 308--A, Texas Rules of Civil Procedure), and 2) when the commitment order was entered he had overpaid the amount of child support by $150. In his brief he says the commitment order is void for the additional reasons that it improperly orders him to pay an attorney's fee as a condition for release and that he was unable to comply with the order of child support. Relator is remanded to custody.

A habeas corpus proceeding is a collateral attack upon the order of commitment, and the relator is entitled to be discharged only if the judgment ordering him confined is void. Ex Parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961); Ex parte Hoover, 520 S.W.2d 483 (Tex .Civ.App.1975, no writ).

A court may enforce an order for support as provided in Rule 308--A, Texas Rules of Civil Procedure:

'In cases where the court has ordered periodical payments for the support of a child or children, as provided in the statutes relating to divorce, and it is claimed that such order has been disobeyed, the person claiming that such disobedience has occurred shall make same known to the judge of the court ordering such payments . . . Upon the filing of such statement, or upon his own notion, the court may issue a show cause order to the person alleged to have disobeyed such support order, commanding him to appear and show cause why he should not be held in contempt of court. Notice of such order shall be served on the respondent in such proceedings in the manner provided in Rule 21a, not less than ten days prior to the hearing on such order to show cause . . . Upon a finding of such disobedience, the court may enforce its judgment by orders as in other cases of civil contempt . . .'

When served with notice of the contempt hearing, the relator was $550 in arrears. He paid that amount plus $150 more some six days after he was served with process and two days before the hearing in question.

The divorce decree had ordered the relator to pay child support on the 5th and 20th of each month 'until the children with respect to whom payments are made shall attain the age of eighteen.' The court found the relator in contempt because of his failure to make the child support payments when they became due in defiance of the terms of the decree. The child support records indicate this was a frequent occurrence. The fact that relator was not in arrears at the time of the hearing does not render the court's judgment void; the relator repeatedly failed to comply with the time provisions of the divorce decree.

The relator was served with the process on October 20, 1976, and the hearing was held on October 28, 1976. In support of his position that since he did not have ten days' notice of the hearing the trial court did not have jurisdiction and he was deprived of due process of law, he cites Ex parte Davis, 344 S.W.2d 153 (Tex.1961) and Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967).

The holding of a contempt hearing within less than ten days from the date of service of a show cause order is a procedural irregularity only. The court does not lack jurisdiction because the hearing was held within less than ten days. On the other hand, holding the hearing in less than ten days after service of notice may constitute a denial of due process. No clear and definite line can be drawn between that length of notice which will afford due process and that which will not. Each case must be evaluated on its own facts. Factors which, together, constitute a denial of due process are: only two days' notice to a relator who was a deaf mute and thus had a difficult time communicating and understanding, who had no attorney, and who was not advised that he could have additional time to obtain counsel and prepare for trial, plus the failure of the trial court to permit the introduction of further evidence when tendered by counsel who had been promptly employed. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (Tex.1961).

In our case the relator appeared at the hearing eight days after service of notice upon him, accompanied by counsel of his own choice, and participated fully in the hearing. We presume his attorney advised him of his right to a continuance for two days. He did not ask for one, object to the lack of notice, or challenge the jurisdiction of the court. He testified about various matters including his take-home pay and his financial condition, and had with him, when he testified, his pay stubs and four letters...