Ex parte Gorena

• Decision Date: 17 October 1979
• Docket Number: No. B-8518,B-8518
• Citation: 595 S.W.2d 841
• Parties: Ex parte Juan J. GORENA.
• Court: Texas Supreme Court

Page 841

595 S.W.2d 841

Ex parte Juan J. GORENA.

No. B-8518.

Supreme Court of Texas.

Oct. 17, 1979.

Joe Villarreal, Jr., San Antonio, for relator.

David C. Kellum, San Antonio, for respondent.

GREENHILL, Chief Justice.

This is an original habeas corpus proceeding. It arises from an order committing Juan J. Gorena to the Bexar County jail for contempt of court in failing to make, pursuant to a divorce decree, monthly payments of a portion of his military retirement benefits to his former wife.

Mr. Gorena's main contentions are: (1) that the trial court lacked jurisdiction to enter the contempt order because the divorce decree on which the order was based is an "agreed judgment"; and (2) that the decree is too vague and indefinite to be enforced. Also presented is the question as to whether he is imprisoned for debt.

We overrule all of the contentions and remand Mr. Gorena to the custody of the Bexar County Sheriff.

On February 7, 1978, Juan J. Gorena and Elvia Gorena, now Elvia Barber, were divorced. The divorce decree recites that the parties had reached an agreement concerning custody and support of the children as well as the disposition of property. Pursuant to this agreement, the court issued the following order in the divorce decree:

It is decreed that Respondent (Mr. Gorena) shall pay to Petitioner (Ms. Barber), as her portion of the community retirement pay received by Respondent as a result of his retirement from the United States Air Force, 42.5% of Respondent's gross retirement pay per month, with the first payment due and payable 1 March 1978 and like payments due and payable on the 1st day of each month thereafter.

Mr. Gorena made these payments until July, 1978, but he has not made payments since that time.

In an effort to recover the delinquent payments, Ms. Barber filed a motion for contempt. The court issued an order to Mr. Gorena to show cause why he should not be held in contempt. After a hearing, the trial court found Mr. Gorena in contempt and ordered him to be confined in the county jail until he paid Ms. Barber $1,807.44 in past-due military retirement benefits.

For this court to order the release of Mr. Gorena, the trial court's contempt order must be void; i. e., beyond the power of the court to enter. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961). As will be discussed below, the power to punish for contempt is an inherent power of a court and an essential element of judicial independence and authority. Ex parte Browne, 543 S.W.2d 82 (Tex.1976); see also Article 1911a. ¹ This power enables courts to persuade parties to obey a prior order or decree of the court so that such prior order will not be rendered ineffectual by recalcitrant litigants. See Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976).

It is Mr. Gorena's initial contention that the trial court was without power to hold him in contempt because the prior divorce decree which formed the basis for the contempt was an agreed judgment. He submits that when parties consent to the terms of a judgment, the judgment is enforceable only as a contract between the parties. Under this theory, Ms. Barber's only remedy would be a suit to enforce the contract.

Despite the fact that a judgment has its genesis in an agreement between the parties, the judgment itself has an independent status. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234 (1961). Once the agreement of the parties has been approved by the court and made a part of its judgment, the agreement is no longer merely a contract between private individuals but is the judgment of the court.

As this court stated in Wagner v. Warnasch, 156 Tex. 334, 339, 295 S.W.2d 890, 893 (1956), "The fact that a judgment is rendered by consent gives it neither less nor greater force or effect than it would have had it been rendered after protracted litigation, except to the extent that the consent excuses error and operates to end all controversy between the parties." Thus, in suits to enforce agreed judgments, parties may not raise contractual defenses because such defenses constitute impermissible collateral attacks on the prior judgments. Peddicord v. Peddicord, 522 S.W.2d 266 (Tex.Civ.App. Beaumont 1975, writ ref'd n. r. e.).

In that portion of this court's opinion in Wagner v. Warnasch, supra, dealing with the effect of a judgment based upon an agreement of the parties, Chief Justice Hickman wrote that this court agreed with the views expressed in the dissenting opinion of the court of civil appeals, and that it was unnecessary to cite again the authorities. In that dissenting opinion, Justice Cody quoted with approval the following from American Jurisprudence :

"To deprive a court of power to execute its judgments is to impair its jurisdiction, and the general rule is that every court having jurisdiction to render a particular judgment has inherent power and authority to enforce it . . . ." 291 S.W.2d 389 at 394.

Since a consent decree has the same force and effect as any other decree, it follows that the consensual nature of the decree should have no bearing on the question of a court's power to enforce the decree by the exercise of its contempt power. In a recent per curiam opinion we stated "an agreed judgment is accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding," and that the agreement is enforceable as part of the court's decree if it appears in the recitals and is approved by the court. McCray v. McCray, 584 S.W.2d 279 (Tex.1979).

Mr. Gorena contends that, at least with respect to agreed divorce decrees, the court may enforce by contempt only those portions of an agreed judgment which relate to child support. As authority, he cites Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962), and Mobley v. Mobley, 221 S.W.2d 565 (Tex.Civ.App. San Antonio 1949, no writ). Mobley is discussed in Ex parte Jones.

Jones involved a divorce judgment which was preceded by an agreement in which the husband was to construct a home for the wife and their children. The contract was incorporated in the judgment by reference. The agreed judgment was indefinite both as to the specific design of the house and as to the time within which it was to be built. The wife sought to enforce this portion of the divorce decree by contempt proceedings. In spite of the indefinite nature of the decree, the trial court held the husband in contempt. This court ordered his release. The release was correctly ordered because the prior divorce decree was too indefinite to be enforced by contempt. See Ex parte Slavin, 412 S.W.2d 43 (Tex.1967).

The court in Jones, however, gave the following reason for ordering the release:

It is well settled that whether the trial court has the power and authority to enforce a decree by contempt proceedings depends upon the nature of the decree. It is only when the nature of the decree is such as is authorized by statute that such decree can be enforced by contempt proceedings. Under Article 4639a, § 1, Vernon's Annotated Civil Statutes, the court is given the power and authority to enforce its decree by a contempt proceeding, Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565, no wr. hist., provided the decree is of such nature as is authorized by the statute. However, no part of the agreed settlement decree in this case is derived from the statute or controlled by the provisions thereof. (Emphasis added here). 358 S.W.2d at 375.

The court then indicated that an agreed divorce judgment could be enforced by contempt proceedings only with respect to child support provisions, since a contempt proceeding is specifically authorized by statute for enforcement of an award of child support.

We disapprove the reasoning utilized in the Jones opinion, and particularly the portion emphasized in the above quotation. A court's contempt power does not depend on statutory authority. As we stated earlier in this opinion, this power is an inherent power that is an essential element of judicial independence and authority. Ex parte Browne, 543 S.W.2d 82 (Tex.1976). ² The Legislature has expressly recognized this implied power in its enactment of Article 1911a, section 1, which provides:

Section 1. A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. A court has the power to punish for contempt.

Whether or not a decree is enforceable by contempt depends, not on statutory authority, but on the nature of the decree itself. For example, a decree that orders a party to perform an act which he is incapable of performing is not subject to enforcement by contempt. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967). Similarly, a decree that is so indefinite that it does...