Ex parte Friedman
| Decision Date | 27 March 1991 |
| Docket Number | No. 08-91-00005-CV,08-91-00005-CV |
| Citation | 808 S.W.2d 166 |
| Parties | Ex parte Gary David FRIEDMAN, Relator. |
| Court | Texas Court of Appeals |
Eugene M. Semko, Schwartz, Earp, McClure, Cohen & Stewart, El Paso, for relator.
Thomas A. Spieczny, El Paso, for respondent.
Before OSBORN, C.J., and FULLER and KOEHLER, JJ.
Gary David Friedman, having been held in contempt and sentenced to twenty days in jail, has filed an Application for Writ of Habeas Corpus to obtain his release from the order of contempt. We grant the Writ in part and deny it in part.
The Relator and his wife were divorced by a decree signed on June 2, 1989. Under the terms of the decree, Mr. Friedman was ordered to pay child support in the amount of $700.00 per month. On March 2, 1990, Mrs. Friedman filed a motion to enforce that decree by contempt and for judgment for the unpaid child support. The motion alleged six specific dates on which the amount ordered had not been paid and the amount of each default. It was alleged that the arrearage in support payments was $2,800.00. Mr. Friedman filed a motion to modify and sought a reduction in his support payments. Following a hearing on June 4, 1990, the court found Relator in contempt and assessed punishment of 20 days in jail and a fine of $2.000.00. The court announced a judgment would be entered for $1,825.00 plus $515.77 for medical expenses. The court then announced that no commitment order would be signed for thirty days to give Relator an opportunity to purge his contempt. Following a hearing on July 5, 1990, the court announced "I will continue this contempt hearing and also the temporary modification to see Mr. Friedman, what you are doing between now and then." On August 27, 1990, the court signed an order modifying prior order which reduced the support payments to $400.00 per month. The court found no contempt for payments due prior to June 1, 1990.
As part of that order, the court ordered that the case was continued until January 7, 1991 to review the monthly child support. Mr. Friedman was ordered to produce at that time (1) copies of all bank statements and canceled checks on any account in his name or any account where he could deposit or withdraw money; and (2) monthly income and expense statements detailing all sources of income received and expenses paid each month. In addition to furnishing that information to the court on January 7, 1991, the information was to be supplied to counsel for his former wife by December 31, 1990. When that information was not timely supplied, Mrs. Friedman filed a motion for enforcement of orders by contempt which was served on Relator's counsel on January 2, 1991. There was no service on Relator.
Following the hearing on January 7, 1991, the court entered an order of contempt which found Mr. Friedman in contempt of the court's order to produce bank statements and canceled checks and assessed punishment at ten days in jail for failure to supply such information to the court, and the order found him in contempt of the court's order to supply the required information to opposing counsel and assessed punishment at ten days in jail for the failure to supply that information.
In a habeas corpus action, the guilt or innocence of the Relator is not an issue. The only issue concerns the legality of Relator's detention. Gilbert v. Texas, 437 S.W.2d 444 (Tex.Civ.App.--Houston [14th Dist.] 1969, writ ref'd n.r.e.). For this Court to order the release of the Relator, the trial court's order of commitment must be void, either because it was beyond the power of the court to enter or because it deprived the Relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252 (Tex.1980); Ex parte Haskin, 801 S.W.2d 12 (Tex.App.--Corpus Christi 1990). The question in this case only involves due process of law.
Both findings of contempt in this case involve a failure to supply records, and clearly, the order to furnish those records to opposing counsel is conduct outside the presence of the court. In Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988), the Court said:
In a case involving conduct outside the presence of the court, due process requires that the alleged contemnor receive full and unambiguous...
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