Ex parte Goodman

• Decision Date: 30 December 1987
• Docket Number: No. 2-87-169-CV,2-87-169-CV
• Parties: Ex parte Lonnie Gordon GOODMAN.
• Court: Texas Court of Appeals

Page 536

742 S.W.2d 536

Ex parte Lonnie Gordon GOODMAN.

No. 2-87-169-CV.

Court of Appeals of Texas,

Fort Worth.

Dec. 30, 1987.

Richard Alley, Lee Ann Dauphinot, Tom Cave, Fort Worth, for relator.

Vaughn L. Bailey, Fort Worth, for real party in interest.

Before FENDER, C.J., and JOE SPURLOCK, II and FARRIS, JJ.

OPINION

FENDER, Chief Justice.

Application was filed in this court seeking habeas corpus relief from incarceration of relator, Lonnie Gordon Goodman, pursuant to commitment issued for contempt of certain orders issued by the judge of the 325th District Court of Tarrant County in connection with the support of relator's children. Relator has alleged denial of due process of law as guaranteed by the United States Constitution; denial of due course of law as guaranteed by the Texas Constitution; denial of the right to effective assistance of counsel as guaranteed by both constitutions; fatal variance between the contemptuous acts alleged and the facts proven; and other legal errors throughout the proceedings.

We grant the relief sought.

In 1980, relator and his then wife were divorced in Tom Green County. Relator was ordered to pay child support in the amount of $300.00 per month. In 1985, a motion to modify was filed by relator's ex-wife. The action was transferred to the 325th District Court of Tarrant County. In March, 1985, relator signed a waiver of citation by which he also agreed that the motion to modify could be amended and considered by the court without further notice to him. Subsequently, the motion was amended and heard on April 25, 1985, in the absence of relator. The child support was ordered increased to $700.00 per month and attorney's fees were awarded. Relator's motion for new trial was denied.

On July 24, 1986, Court Master Enos held a hearing on the ex-wife's motion to establish arrearage and to secure an involuntary wage assignment.

On November 4, 1986, Mrs. Goodman filed a motion for contempt for failure to make the child support payments from August 1, 1986 through November 3, 1986 as well as arrears of $5,064.80. Mrs. Goodman's motion for contempt was heard by Court Master Sean O'Reilly on March 25, 1987, at which time it was recommended that judgment be entered finding relator in contempt for failure to make the payments due in August, 1986, September, 1986, November, 1986 and January, 1987. Punishment of six days in jail for each instance, in the aggregate of 24 days, was assessed. An additional punishment of 30 days for each instance of contempt, a total of 120 days was assessed, but such punishment was ordered suspended after the serving of the 24 days, during a 48-month period of probation. The court master's recommended judgment only as to the 24 days punishment was incorporated in a written Contempt Judgment Ordering Commitment to Jail signed by Judge Brian Carper on March 25, 1987.

On April 10, 1987, Judge Robert L. Wright signed an Order of Release from Jail by which relator was ordered to appear in court on April 13, 1987 "for further processing and review and signature of the probation order of the Court."

On April 13, 1987, Judge Wright signed a Contempt Judgment Ordering Commitment to Jail and Probation. That judgment reiterates the master's findings and punishment and formally ordered relator's 48- month probation. Recited therein is the following:

Respondent, LONNIE GOODMAN, appeared in person without the benefit of counsel, and announced ready for trial. The Court proceeded to apprise both parties of the right of appeal of the Master's ruling and further apprised the Respondent, LONNIE GOODMAN, of his 5th Amendment protections under the United State [sic] Constitution. After being fully advised of same, LONNIE GOODMAN waived his 5th Amendment protection and agreed to proceed to trial. The Court then inquired in detail of the Respondent, LONNIE GOODMAN, regarding his status as a possible indigent and finds that Respondent, LONNIE GOODMAN, is not an indigent person.

After finding arrearages to be $6,643.80 and recounting the four instances of contempt, the judgment continues as follows:

IT IS THEREFORE ORDERED that LONNIE GOODMAN, Respondent in this cause, be sentenced to confinement in the Tarrant County Jail for 6 days on each of the 4 contempt counts recited above, or a total of 24 days to serve with an additional 30 days to serve in confinement in the Tarrant County Jail on each count or a total of 120 days, which time is suspended after Respondent serves the 24 days. The Respondent may purge himself of the contempt by payment of $6,643.80 on the following conditions:

1. Respondent, LONNIE GOODMAN, shall remain on probation for a period of 48 months beginning in April 1987 and during said probation he shall report in person weekly to his probation officer until he is employed. Thereafter, he shall report monthly while he is employed.

2. Respondent, LONNIE GOODMAN, shall pay child support by wage assignment at all times for his regular child support payments whenever he is working.

3. Respondent, LONNIE GOODMAN, shall begin payment of arrearages at the rate of $80.00 per month beginning July 15, 1987, and continuing thereafter at the same amount of $80.00 per month on the 15th day of each month thereafter until all arrears are paid in full. The arrears shall also be paid by wage assignment if not subject to the 50% limitation of disposable earnings.

On June 4, 1987, Mrs. Goodman filed her Motion to Revoke Probation alleging that relator:

1. Failed to report to his probation officer during the week of May 18, 1987, while remaining unemployed.

2. Failed to make the child support payment of $700.00 due on May 1, 1987.

The motion was heard by Judge Wright on July 2, 1987. As a result of that hearing, at which relator appeared without counsel, the court found relator failed to comply with the April 13th order suspending commitment by failing to make the $700.00 payment due on May 1, 1987. Relator was committed to custody to serve 120 days unless he purged himself of the contempt by payment of $6,643.80.

In considering the legality of relator's confinement we initially observe that Mrs. Goodman has not responded in any way to urge the propriety of Goodman's incarceration although her attorney of record was given notice of every step in the proceedings taken by this court. The respondent sheriff has presented the writ of commitment delivered to him when he took custody of relator after the July 2nd hearing. Although it is not called to our attention, we find the writ is void, since it is not authorized by the underlying order of commitment. The order requires confinement of 120 days unless the arrearages are paid, whereas the writ commands respondent to keep relator for 120 days and until he has paid $6,643.80 in arrearages. We could order relator's discharge due to this unassigned fatal error in the proceedings below, but relator, having attacked the validity of the initial contempt proceeding and also the validity of the probation revocation proceeding, is entitled to our present determination of the issues raised in order to forestall a future arrest based upon a corrected writ of commitment.

Relator's challenge to the validity of both hearings is based primarily upon his assertion that he was not afforded assistance of counsel and the record does not show affirmatively that he made a knowing, intelligent and voluntary waiver of counsel.

It is settled law in this State that when an indigent is charged with contempt, is not represented by counsel and has not intelligently waived the right to assistance of counsel, a court may not, without violating the constitutional right to assistance of counsel, impose imprisonment as a punishment for disobedience of a child support order. See Ex parte Young, 724 S.W.2d 423, 425 (Tex.App.--Beaumont 1987, no writ) (per curiam); Ex parte McIntyre, 730 S.W.2d 411, 415 (Tex.App.--San Antonio 1987, no writ); Ex parte Lopez, 710 S.W.2d 948, 951 (Tex.App.--San Antonio 1986, no writ).

The court master who conducted the initial contempt proceeding on March 25, 1987, first required relator to read and fill out a form denominated "Pro Se Respondent Form And Appearance Form" and then made the following observations:

THE COURT: You have stated that you have been advised by the Court and I am informing you that you do have the right to employ an attorney for this matter, you may do so at a later date; that at this time, as you've indicated to me, you are prepared to go forward and you choose to represent yourself at this time; that the above information about your present address, social security number, date of birth is as you have set it out in this form; is that correct?

MR. GOODMAN: Yes, ma'am.

THE COURT: You indicate on the form, Mr. Goodman, that you are unemployed at this time.

MR. GOODMAN: Yes, ma'am.

Relator, questioned regarding his last employment, stated he last worked in February, 1987 and was laid off for lack of work. He stated he had not applied for unemployment benefits because "[t]hey are just about exhausted anyway." As to his awareness of whether he was entitled to benefits, he answered:

MR. GOODMAN: If I am, it's not very much this time because I was drawing it before. I lost my main job in August of last year, '86, and I drew quite a bit of unemployment between that time and February. So I really don't know how much I have, if any, left in unemployment benefits.

He explained that most of his current personal needs and day-to-day living expenses were provided by a girlfriend...