Ex parte Conoly, 05-87-00077-CV

• Decision Date: 01 May 1987
• Docket Number: No. 05-87-00077-CV,05-87-00077-CV
• Citation: 732 S.W.2d 695
• Parties: Ex parte Jim M. CONOLY.
• Court: Texas Court of Appeals

Page 695

732 S.W.2d 695

Ex parte Jim M. CONOLY.

No. 05-87-00077-CV.

Court of Appeals of Texas Dallas.

May 1, 1987.

Lee Roland, Garland, for appellant.

William Bret, III, Dallas, for appellee.

Before WHITHAM, STEWART and McCRAW, JJ.

STEWART, Justice.

Relator Jim M. Conoly ("Jim") applied for a writ of habeas corpus. For the reasons given below, we deny the application.

Jim and Brenda J. Conoly ("Brenda") were granted a divorce by the 254th Judicial District Court of Dallas County (the "254th Court"). The divorce decree ordered Jim to pay $100 per month, through the Dallas County Child Support office, for child support. On September 9, 1986, Brenda filed a motion for contempt, alleging that Jim had not made the child support payments as ordered. On January 12, 1987, the 254th Court held a hearing on Brenda's motion. It found Jim in contempt, and signed two orders of contempt and for commitment to county jail on the same date. The first order held Jim in contempt for the child support arrearages accrued up to September 9, the day that Brenda filed her motion for contempt. The second order held him in contempt for the child support arrearages accrued after September 9, but before January 12, the date of the hearing.

Jim argues first that the contempt orders are void because neither one specifies the place where Jim failed to comply with the divorce decree. Section 14.33 of the Texas Family Code requires an enforcement order to state "the time, date, and place" of every occasion on which an alleged contemner failed to comply with the provisions of an order, decree, or judgment for which enforcement is sought. Because the contempt orders did not state the "place" at which Jim failed to pay the ordered child support, Jim argues that they do not meet the statutory requirements of section 14.33. Relying on Ex parte Durham, 708 S.W.2d 536, 538 (Tex.App.--Dallas 1986, orig. proceeding), Jim concludes that the commitment orders are therefore void.

Although we addressed this point generally in Durham, a resolution of the precise issue that Jim raises was not necessary to our disposition of that case. Thus, we address that issue directly now. Under the divorce decree in the instant case, Jim was ordered to make all payments through the Dallas County Child Support Office. That provision is set out in Brenda's motion for contempt, and the contempt orders refer to the decree by date and by volume and page, where it appears of record. We hold that the place where all payments were to be made is sufficiently incorporated by reference in the enforcement order. See Ex parte Parrott, 723 S.W.2d 342, 345 (Tex.App.--Fort Worth 1987, orig. proceeding). We further hold that, when there is but one place designated in the support order for the payment of all sums at issue, the place at which a respondent to a contempt motion failed to pay need be alleged only once unless "place" is a controverted issue. Here, there is no dispute involving the "place" where Jim was required to make all of his child support payments. Under the facts of this case, we hold that the omission of the place of each failure to pay does not render the enforcement order in this case so ambiguous as to be unenforceable. Parrott, 723 S.W.2d at 345.

Jim next argues that the order holding him in contempt for support arrearages accrued up to September 9, 1986 (the date on which Brenda filed her motion for contempt), is void, because it does not specify exactly the date of each and any occasion on which Jim failed to make support payments. This contempt order sets out thirty-six dates on which the 254th Court found that Jim failed to make payments of $100 each. Therefore, the total arrearage would appear to be $3,600. Yet the contempt order finds that Jim was in arrears in the lesser amount of $3,109. Jim contends that, because there is a discrepancy between the findings of each individual date of non-payment and the total arrearage found, the commitment order is void.

We disagree. The purpose of an enforcement order is to notify the contemner of how he has violated the provisions for which enforcement is sought and how he can purge himself of contempt, to notify the sheriff accordingly so that he may do his duty, and to provide sufficient information for adequate review. The contempt order "must contain specific findings so that the contemner will be fully apprised of his alleged act of misconduct so that he may overcome by proof, if any is available, the presumption of the validity of the order." Ex parte Hardy, 531 S.W.2d 895, 896 (Tex.Civ.App.--Dallas 1975, orig. proceeding). In the instant case, the parties agree that Jim failed to make the payments on the dates found in the contempt order, but that he had in fact made some payments, on some occasions, for which the 254th Court gave him credit. The credit accounts for the discrepancy between the arrearage actually found and the total of the thirty-six defaulted payment dates.

The contempt order sets forth the dates on which Jim failed to make payments and sets forth the 254th Court's finding that the total arrearage was $3,109. Jim does not attack this finding. That Jim made some later payments of child support does not excuse the fact that he did not pay on the dates on which the payments were ordered due. See Ex parte Boyle, 545 S.W.2d 25, 27 (Tex.Civ.App.--Houston [1st Dist.] 1976, orig. proceeding) (fact that alleged contemner paid all support arrearages before hearing, but after motion for contempt, did not render commitment order void). Because Jim did not pay child support on any of the thirty-six dates specified, he was in contempt of court. Because the 254th Court found the arrearage specifically to be $3,109, the commitment order is clear as to what Jim must do to purge himself. Jim's complaint of the discrepancy between the amounts found not to have been paid on each of the thirty-six dates and the total amount of arrearages found is no more than a complaint that the 254th Court credited him with payments that he did make; therefore, he was not harmed.

We should not be understood to approve, in all cases, a discrepancy between the total amounts found not to have been paid and the arrearage for which a respondent is held in contempt. We hold merely that, under the facts and circumstances of this case, the dates of each occasion on which Jim violated the order of child support were proved, and the discrepancy between the amount of arrearage that accrued on those dates and the amount for which Jim was held in contempt was satisfactorily accounted for.

We hold that this contempt order gives Jim sufficient notice of his arrearage in the amount of $3,109 and of the requirement that he pay that amount (and certain costs) to purge himself of contempt; that it gives the sheriff adequate notice that, when Jim has paid that amount in arrearage (and the costs), he will have purged himself so that he may be released from custody; and that it gives adequate information for our review of the points of error urged.

Finally, Jim argues that the second order holding him in contempt for failure to pay child support accruing after Brenda's motion but before the hearing is void for lack of adequate notice of these violations. We agree.

Brenda's motion recites, in relevant part:

[Brenda] believes, based on the conduct of [Jim] as alleged above that [Jim] will continue to disobey the order of [the 254th Court], and [Brenda] requests [Jim] be held in contempt for any further failure to make child-support payments from the date of filing this motion to the date of the hearing on this motion.

See, 2 STATE BAR OF TEXAS, TEXAS FAMILY LAW PRACTICE MANUAL 13.28, para. 3 (Supp.1986) (suggesting inclusion of form paragraph identical to above in motions for contempt).

The contents of a motion to enforce child support, however, are controlled by section 14.31(b)(1) of the Family Code. That section provides in pertinent part:

(b) Pleading. (1) Contents of Motion.

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The motion shall set out specifically and with particularity the provisions of the order, decree, or judgment sought to be enforced and, in separate counts, the time, date, and place of each occasion upon which the respondent has not complied with the order, the manner of the noncompliance, and the relief sought by the movant.

The purpose of this section is to provide a respondent with proper notice of the allegations of contempt for which he must prepare a defense at the hearing on the motion. See Ex parte Almendarez, 621 S.W.2d 664, 667 (Tex.Civ.App.--Fort Worth 1981, orig. proceeding); see also Ex parte Deckert, 559 S.W.2d 847, 849 (Tex.Civ.App.--Houston [1st Dist.] 1977, orig. proceeding) (charge that respondent did not comply with order of child support insufficient as specific charge of failure to make child support payments). Yet the quoted paragraph in Brenda's motion recites no specific dates, after the date of the motion itself, on which she anticipated Jim would fail to make payments for child support. We hold, therefore, that the quoted paragraph is an insufficient allegation on which to base a finding of contempt.

There is, moreover, an additional reason that the paragraph is insufficient. Section 14.31 requires the motion to recite specific details "of each occasion upon which the respondent has not complied with the order" for which enforcement is sought. TEX.FAM.CODE ANN. sec. 14.31(b)(1) (Vernon 1986) (emphasis added). The use of the perfect tense in prescribing the contents of an enforcement motion indicates that the legislature intended such a motion to include only those violations that have already occurred at the time that the motion is filed. There is nothing in the Family Code that we find authorizing a movant to allege, in an enforcement motion, that the respondent is anticipated to commit future violations of the order for which enforcement is sought to occur. A child support order can be enforced by contempt...