Ex parte Englutt, 8914
| Decision Date | 23 June 1981 |
| Docket Number | No. 8914,8914 |
| Citation | 619 S.W.2d 279 |
| Parties | Ex Parte Charles Edgar ENGLUTT. |
| Court | Texas Court of Appeals |
Frank D. Moore, Irving, for appellant.
Bill Terry, Bonham, for appellee.
Charles Edgar Englutt was adjudged by the District Court of Fannin County to be in contempt for failure to pay child support ordered by an amended decree in his divorce from Mrs. Martha Ann Englutt. The order was dated September 18, 1975, and set support payments at $80.00 per month for each of Mr. Englutt's two children. The judgment of contempt was rendered on November 21, 1980, in response to a motion of Mrs. Englutt. As punishment, Mr. Englutt was fined $500.00 and confined in jail for 180 days; and as coercion he was ordered to be thereafter confined until he paid $9,920.00 in support payments and $33.00 court costs. We conditionally granted a writ of habeas corpus in order to review the legality of the contempt adjudication and order of confinement.
After his divorce, Mr. Englutt moved to California where he had several temporary jobs. While in California he sustained an on-the-job injury in March of 1979 and he later received a lump sum workers compensation settlement of $14,721.00. He returned to Texas in August of 1979. Since his return he has had a series of temporary jobs and he was employed at the time of the hearing. He is currently receiving a veteran's administration check, part of which he says has been set aside and designated for his children. He conceded that he had paid none of the required support payments, but stated that he intends to ultimately give the children the amounts that are due them. Mrs. Englutt has made at least two previous attempts to enforce the support order. She filed a motion for contempt in the Collin County District Court on June 19, 1980. In that proceeding Mr. Englutt was held in contempt and placed in jail under an order which set his punishment at a $100.00 fine and 24 hours in jail, or until he purged himself of contempt by paying $9,280.00 in support arrearages, plus court costs and attorney's fees. The Texas Supreme Court, on application for writ of habeas corpus, held that the contempt order provided alternative methods by which Mr. Englutt could obtain his release, and that since he complied with one of them, he was entitled to be released. See Ex Parte Englutt, 608 S.W.2d 610 (Tex.1980). On the same day of the Collin County contempt order the case was transferred to Fannin County. The action which resulted in the adjudication now before this Court was filed by Mrs. Englutt in Fannin County on October 17, 1980.
Mr. Englutt first contends that the judgment of contempt cannot stand because he was and is totally unable to comply with the support order or to purge himself of contempt by paying the arrearage. A contempt adjudication for non-support will be considered void if the evidence at the hearing conclusively establishes that the condemnor had no funds, and no source from which he might obtain the funds, with which to comply with the court order or to purge himself of contempt. Ex Parte Ramzy, 424 S.W.2d 220 (Tex.1968); Ex Parte Rohleder, 424 S.W.2d 891 (Tex.1967). In such a case, the condemnor has the burden of presenting evidence which conclusively establishes his inability to comply. Ex Parte Lindsey, 561 S.W.2d 572 (Tex.Civ.App. Dallas 1978, no writ); Ex Parte Loftin, 522 S.W.2d 591 (Tex.Civ.App. Tyler 1975, no writ). Such proof consists of these elements:
1. That the relator lacks sufficient personal or real property which could be sold or mortgaged to raise the needed sums; and
2. That the relator has unsuccessfully attempted to borrow the necessary sums from financial institutions such as banks, credit unions and loan companies; and
3. That the relator knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured.
We do not believe Mr. Englutt has satisfied his burden in this regard. He testified that he had no property except a 1975 Dodge Van which was not in operating condition, and that he is partially disabled and only works part-time. He also testified that he has no property that he can sell or mortgage and has unsuccessfully tried to borrow money from his brother. There is testimony, however, that he does work part-time, has some income, and receives a veteran's administration check. He has not established a complete lack of funds or income, or that he lacks sufficient funds, after paying necessary living expenses, to pay child support. In addition, he has not exhausted all efforts to obtain loans as required in the third element mentioned above. Much of Mr. Englutt's testimony on the points he did cover is uncertain and conclusionary. Under the circumstances we cannot say that his inability to comply with the order was conclusively established.
It is next contended that the support order is too vague to support the contempt adjudication. We disagree. The amended order provides that the payments of $80.00 per month for each of the children were to commence on September 1, 1975, and were to be paid "... until the child with respect to whom payments are made shall attain the age of 18...." The order further provides that "... All other terms and provisions of the previous orders of this Court entered in this cause shall remain in full force and effect, except as modified herein." Included in those previous orders is the divorce decree of May 20, 1975, which set out fully the original terms of support. That decree states that payments are to be paid the first day of each month and that they are to be made payable to Martha Ann Englutt and mailed to the Collin County Courthouse at McKinney, Texas.
Mr. Englutt also asserts that the contempt adjudication violates the United States Constitution's prohibition against double jeopardy. See U.S.Const. Amend. V. First, he argues that because he was convicted in Fannin County on March 25, 1980, of a criminal charge for failure to support...
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Williams v. State
...is entitled to appellate review of his jeopardy plea in this habeas corpus proceeding prior to undergoing the Williams relies on Ex parte Englutt, 619 S.W.2d 279 (Tex.Civ.App.--Texarkana 1981, no writ), and Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.--Waco 1978, no writ). Both of those cas......
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Ex parte Williams
...conviction does bar a subsequent contempt adjudication for violation of an order entered in a suit between private parties, Ex parte Englutt, 619 S.W.2d 279 (Tex.Civ.App.--Texarkana 1981, no writ); Ex parte Brown, 574 S.W.2d 618 (Tex.Civ.App.--Waco 1978, no writ), but both those cases relie......
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Baggett v. State, CA
...to punish appellant following this conviction for interference with custody, we might reach a different result. See, Ex Parte Englutt, 619 S.W.2d 279 (Tex.Civ.App.1981). We view the contempt action in the chancery court here as being entirely different in purpose than that of the criminal a......
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Ex parte Hudson
...on other grounds in Huff v. Huff, 648 S.W.2d 286 (Tex.1983) (ten-year, and not four-year, limitations period applied); Ex parte Englutt, 619 S.W.2d 279, 282 (Tex.Civ.App.--Texarkana 1981, orig. The flaw in the punitive portion of the district court's order does not extend to the coercive po......