Ex parte Cox
| Decision Date | 16 March 1972 |
| Docket Number | No. 15909,15909 |
| Citation | 479 S.W.2d 110 |
| Parties | Ex parte Anthony D. COX, Relator. (1st Dist.) |
| Court | Texas Court of Appeals |
Haynes & Fullenweider, Donn C. Fullenweider, Houston, for appellant.
Relator, Anthony D. Cox, was confined in the County jail of Harris County, under a written commitment issued by the Court of Domestic Relations No. 4 of Harris County on December 22, 1971. He filed a writ of habeas corpus as an original proceeding in this court, and was released on bond by order of this court pending a determination of the validity of the judgment ordering him confined.
The facts leading to this application for writ of habeas corpus are as follows: Relator and Yoko Ono Cox, now Yoko Ono Lennon, hereinafter referred to as Respondent, were formerly married and a child, Kyoko Cox, was born of that marriage on August 3, 1963. On January 30, 1969, the parties were divorced by the District Court of the Virgin Islands, but the decree of divorce expressly provided that questions relating to the care, custody, and control of the minor child, Kyoko, would be left open for future determination by a court of competent jurisdiction. The child resided with the Relator in Harris County from the time of the divorce until Relator filed suit against Respondent for custody of the child and to enjoin Respondent from filing various lawsuits in other jurisdictions for custody also. The case was heard and on December 17, 1971, an agreed order was entered awarding Relator temporary custody pending final disposition with certain visitation rights on the part of Respondent. The pertinent parts of these visitation rights are set forth below:
'(a) Before the Defendant shall be permitted to visit with the child, the Defendant must first exercise a visitation period with the child in Houston, Harris County, Texas, after reasonable notice to the Plaintiff, at which time the Defendant may see the child and visit with the child at any place in Houston, Harris County, Texas from the hours of 8:00 a.m. until the hours of 8:00 p.m. on a Saturday when the child shall be returned to the Plaintiff Anthony D. Cox, and on the following day, Sunday, the Defendant may have visitation privileges with the child in Harris County, Texas from the hours of 8:00 a.m. to the hours of 8:00 p.m.
'(c) After the aforementioned Houston visitation has been established then the Defendant shall have the following rights of visitation with the child, Kyoko Cox:
'(d) The Defendant, Yoko Ono Lennon, may visit with the child Kyoko Cox, on alternating weekends with the first visitation beginning the 18th of December, 1971 beginning at the hour of 6:00 p .m. on Friday and ending at the hour of 9:00 p.m. on Sunday. Said visitation shall be on an alternate basis between the State of Texas and the City of New York or any other location within the continental limits of the contiguous states of The United States of America. It is understood that before taking the child outside the State of Texas for any period of visitation, the Defendant must have exercised the previous visitation with said child in the State of Texas.
'(f) The Defendant, Yoko Ono Lennon, may have a period of visitation with said child for a period of 10 days during the Christmas school vacation, at a time when the child's school is not in regular session, and said visitation may take place outside the continental limits of the contiguous states of The United States of America.
On December 20, 1971 Respondent filed a complaint alleging Relator was in contempt of the court's order in that she was not allowed to visit her daughter pursuant to that order. A hearing was had on December 22, 1971, and Relator was found in contempt for having failed to produce the child under paragraphs (a) and (f). Relator's punishment was assessed at confinement in the County jail for five (5) days. Relator then filed this application for writ of habeas corpus.
The attorney for Relator was informed that Respondent was planning to come to Harris County on December 18, 1971, pursuant to the visitation period described in paragraph (a) of the order and exercise her rights provided therein. Mrs. Lennon arrived in Harris County the morning of December 18, 1971. Edward G. Murr, her attorney, testified that on the same morning Relator telephoned him and informed Mr. Murr that he (Relator) was not going to produce the child. Relator's testimony is that he telephoned Mr. Murr to make arrangements for a meeting and was informed for the first time that Mrs. Lennon wasn't going to pick up the child, but that Mr. Murr was . He stated that this upset his daughter and that the daughter wanted her mother to pick her up, not anyone else, and that she became so upset that he would not give Mr. Murr the address to pick up the child. Many conversations took place between the attorneys, Mr. Cox, and a minister at whose house the child was on that Saturday and the following Sunday. The parties could not reach a satisfactory arrangement and as a rsult, Mrs. Lennon did not visit the child that weekend.
Relator felt that his daughter did not want to be picked up by anyone except her mother, and he feared that if he permitted any other arrangement it might cause her severe emotional distress.
Apparently the reason for not producing the child is best reflected by Relator's answer to questions propounded by the court.
'
The writ of habeas corpus is a writ of right provided for in Article 1, § 12 of our Texas Constitution, Vernon's Ann.St. The object of the writ is to secure the release of a party from illegal custody, and not to allow him another tribunal to correct errors. Ex parte Beamer, 116 Tex. 39, 285 S.W. 255 (1926). Habeas corpus proceedings are collateral and not direct attacks on the proceedings under which the restraint complained of has been imposed. Ex parte Ramzy, Jr., 424 S.W.2d 220 (Tex.1968), and the court is limited in these proceedings to a question of whether or not the commitment is void. Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720 (1936). Relator is not entitled to discharge in a habeas corpus proceeding unless the judgment ordering him confined is void. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953).
In Relator's application for a writ of habeas corpus, he asserts four grounds for his contention that his confinement and restraint are illegal. All are without merit. The assignments are:
(1) The court was without power to order confinement for five (5) days. This assignment is without merit. Tex.Rev.Civ.Stat.Ann. Art. 1911a provides that a district court may punish...
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Ex parte Barlow
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