Ex parte Crawford, C14-84-443CV

• Decision Date: 15 November 1984
• Docket Number: No. C14-84-443CV,C14-84-443CV
• Parties: Ex parte Darwin CRAWFORD, Relator. (14th Dist.)
• Court: Texas Court of Appeals

Page 124

684 S.W.2d 124

Ex parte Darwin CRAWFORD, Relator.

No. C14-84-443CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 15, 1984.

Walter Mahoney, Jr., Houston, for appellant.

Susan Myres, Whitmore, Sheppard & Pollicoff, Houston, for appellee.

Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired)

OPINION

JUNELL, Justice.

This is a habeas corpus proceeding. On July 28, 1983, the Honorable Bob Robertson of the 308th Judicial District Court of Harris County held relator, Darwin Crawford, in contempt of court for violating provisions in a divorce decree ordering him to pay child support. The written order of contempt was signed August 3, 1983. Punishment for the contempt was set at 30 days confinement in the county jail. Further confinement was ordered until relator purged himself of contempt by paying the back child support of $1,600, attorney's fees and costs.

Enforcement of the order holding relator in contempt was suspended upon the conditions that relator pay $100 cash to his former wife that day and the $1500 balance, attorney's fees ($375) and costs ($53) by September 7, 1983. All parties were ordered to appear September 8, 1983, for a hearing to determine whether relator had complied with the order. Relator did not appear September 8, 1983. He successfully evaded appearance before the court until he was arrested on a writ of attachment and brought before the court June 28, 1984. On that day the court conducted a hearing and found that the relator had failed to comply with the conditions in the July 28, 1983, contempt order and signed a commitment order under which the relator was held until released on bond pending hearing on this habeas corpus proceeding.

Before an appeals court may order the release of a relator in a habeas corpus proceeding, the trial court's order must be void either because it was beyond the power of the court or because it deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). Relator does not challenge the trial court's jurisdiction. All of his arguments are based on due process.

Relator proposes three reasons that his confinement is illegal: (1) that the divorce order is so vague and ambiguous that it cannot be enforced by contempt, (2) that relator had no notice of the allegations against him at the June 28, 1984, hearing and (3) that the commitment order is void because it does not specify when and how relator violated the order of the court nor for which violation he is being punished. We find that the relator was properly committed to the Harris County jail and deny his application for writ of habeas corpus.

The portion of the March 4, 1983, divorce decree ordering the relator to pay child support contains hand-made deletions and changes. The original typed version ordered payment of $300 per child for a total of $600 a month. The changes were obviously intended to lower the support obligation to $200 per child, for a total of $400 per month. Unfortunately, not all of the figures were corrected so that the decree, as corrected by hand, actually reads,

IT IS DECREED that DARWIN RAY CRAWFORD pay to CONNIE JEAN CRAWFORD child support in the amount of $300.00 per month, per child, for a total of FOUR HUNDRED DOLLARS, ($400.00), monthly, with the first payment of SIX HUNDRED DOLLARS, ($400.00), being due and payable on the 15th of each month, commencing March 15, 1983 and a like payment being due and payable on the same day of each month thereafter until the oldest child reaches the age of 18, or is otherwise emancipated, at which time the payments shall be THREE HUNDRED DOLLARS, ($200.00), per month until the youngest child reaches the age of 18.

The divorce decree recites that relator did not appear or file answer and did wholly default.

The relator cites the rule in Ex parte Slavin, 412 S.W.2d 43 (Tex.1967) that a person cannot be held in contempt for failing to follow an order that is ambiguous or susceptible to different meanings or constructions. In Slavin the relator was a father who reduced his child support payments after one of his children reached majority. The court was not faced with a relator who completely ignored his obligation to support his children. Even with the carelessly made revisions in the March 4, 1983, decree relator was made aware that he was at least obligated to pay the lesser amount of $400. If he had any doubts as to what was required of him, he could have had the matter cleared up. See Garza v. Fleming, 323 S.W.2d 152, 156 (Tex.Civ.App.--San Antonio 1959, writ ref'd n.r.e.).

We agree with Justice Reeves's dissenting opinion in Ex parte Longoria, 671 S.W.2d 673, 675-76 (Tex.App.--San Antonio 1984, no writ). A relator who knows with certainty he was either to pay X amount or Y amount under an order can be punished for contempt for choosing to ignore the order completely.

Further, we hold that the relator has waived his right to complain about any ambiguity in the divorce decree when he agreed to the judgment of contempt rendered July 28, 1983. We do not have before us a statement of facts for any of the court hearings involved, but both parties in their briefs call the July 28, 1983, order an "agreed order." That order finds the relator in arrears in the amount of $1,600. Both the Motion for Contempt for Failure to Pay Child Support and the Order to Show Cause setting the July 28, 1983, hearing allege that relator failed to pay $400 a month for March, April, May and June of 1983. Relator was clearly put on notice that the court was being asked to enforce the March 4, 1983, divorce decree to the extent it ordered payments of $400 per month as child support. There is no indication that relator disputed the court's interpretation of the divorce decree even as late as June 28, 1984, when he was before the court in the delayed compliance hearing. It was only when the relator was finally in jail that he decided that the decree was ambiguous.

Relator also argues that he has been denied due process because he had no notice of the allegations against him prior to his "trial for constructive contempt." Apparently, relator is speaking of the June 28, 1984, compliance hearing. It is well settled that imprisonment for contempt without notice and hearing is a denial of due process. Ex parte Herring, 438 S.W.2d 801 (Tex.1969). It is equally clear that when a person has been found in contempt for violating a court's previous order, but his punishment is suspended on condition of his compliance with certain terms and conditions, the court must afford him a subsequent hearing to determine whether he breached any of those terms and conditions before he can be committed to jail. Ex parte Pena, 636 S.W.2d 741 (Tex.App.--Corpus Christi 1982, no writ).

Relator was found in contempt July 28, 1983. That finding was put in writing and signed August 3, 1983. The contempt order itself gave relator sufficient notice of the compliance hearing when it ordered him to appear September 8, 1983, for a hearing to determine "whether Respondent has complied with this Order." A similar procedure was upheld in Ex parte Pappas, 562 S.W.2d 865, 867 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ) and Ex parte Lee, ...