Ex parte Helle

• Decision Date: 29 February 1972
• Docket Number: No. 705,705
• Citation: 477 S.W.2d 379
• Parties: Ex parte Sarah Jo Ann Robertson HELLE, Relator.
• Court: Texas Court of Appeals

Page 379

477 S.W.2d 379

Ex parte Sarah Jo Ann Robertson HELLE, Relator.

No. 705.

Court of Civil Appeals of Texas,

Corpus Christi.

Feb. 29, 1972.

Rehearing Denied March 16, 1972.

Adams, Graham, Lewis, Jenkins & Graham, John E. Lewis, Tony Martinez, McAllen, for relator.

Dunnam, Dunnam & Dunnam, W. V. Dunnam, Jr., Waco, for appellee.

OPINION

BISSETT, Justice.

This is an origianl habeas corpus proceeding arising as a result of a contempt order entered against the plaintiff in a child custody case. Sarah Jo Ann Robertson Helle, plaintiff in the child custody case and relator herein, was taken into custody by the Sheriff of Hidalgo County, Texas, on January 5, 1972, by virtue of a commitment issued by the District Clerk of McLennan County, Texas, on November 24, 1971.

Relator was adjudged to be in contempt of court by the 19th District Court of McLennan County, Texas by an order of that Court issued on October 15, 1971, whereby it was found that she had willfully violated a previous order of that Court, made on September 14, 1971, in that she had failed and refused to bring her children before it on September 21, 1971, as ordered. She was committed to the county jail of McLennan County for 72 hours, and to remain in jail until she complied with that court's order.

Our original jurisdiction has been invoked under the provisions of Article 1824a, Vernon's Ann.Civ.St. Ex parte Williams, 469 S.W.2d 449 (Tex.Civ.App.--Beaumont 1971, n.w.h.); Ex parte Howe, 457 S.W.2d 642 (Tex.Civ.App.--Houston 1st 1970, n.w.h.). In order for the contempt judgment to be subject to collateral attack, it must be absolutely void and not voidable. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1962); Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953).

This Court granted relator's application for writ of habeas corpus, and admitted her to bail upon a bond of $1,000.00 pending a hearing of the cause.

The relator will be ordered discharged from the custody of the Sheriff of Hidalgo County, Texas, as we are of the opinion that the 19th District Court of McLennan County, Texas, was without jurisdiction to render the contempt order of October 15, 1971, because both the order that relator allegedly violated as well as the contempt order itself were rendered in a cause after the court had entered an order of dismissal therein and subsequent to the time that relator, as plaintiff, had moved for a non-suit At the time of the non-suit and of the dismissal, no effective child custody order in the cause then pending had ever been rendered by that court. Relator had an absolute and unqualified right to a non-suit as she made a motion therefor at a time when the defendant in the cause had not filed any pleading seeking affirmative relief and before any decision was announced by the judge.

The judicial history of the present controversy is quite complicated and may be best understood by setting forth the pertinent events in chronological order.

Early G. Robertson was awarded a divorce from relator on July 14, 1969 by the 93rd District Court of Hidalgo County, Texas. The decree entered by that court awarded the custody of their minor children to Early G. Robertson, with relator being granted reasonable visitation rights.

On August 14, 1970, relator, as plaintiff, filed suit in the 19th District Court of McLennan County, Texas (hereinafter referred to as the 19th District Court) against Early G. Robertson (her former husband), as defendant, for a re-adjudication of the custody of their minor children. The suit was docketed as Cause No. 61204. Plaintiff alleged that conditions had materially changed since the entry of the judgment by the 93rd District Court of Hidalgo County, Texas. She prayed for temporary custody of the children pendente lite, and for their permanent custody upon final hearing.

On the same day that suit was filed in the 19th District Court, the judge placed temporary custody of the children with relator, pending a hearing. That order of temporary custody was set aside by the 19th District Court on August 20, 1970.

Early G. Robertson, defendant, filed a general denial on August 28, 1970. No other pleadings were filed until August 16, 1971, when the defendant filed his first amended original answer consisting of a general denial and the following allegation:

'By way of cross action, defendant shows that there has been no material change of conditions or circumstances pertaining to said children or defendant's custody of them and he is entitled to declaratory judgment that there has been no such change since the date of the rendition of judgment in Cause No. B--24825 in the 93rd Judicial District Court of Hidalgo County, Texas, wherein custody of said children was vested in defendant.'

The pertinent parts of defendant's prayer read as follows:

'WHEREFORE, defendant prays that plaintiff be denied all relief herein, that he have judgment adjudging and declaring that there has been no material change of circumstances or conditions pertaining to said children, their welfare or defendant's custody of them since the date of the final judgment in said cause No. B--24825 in the 93rd District Court of Hidalgo County, Texas. . . .'

On August 18, 1971, the 19th District Court entered an order dismissing Cause No. 61204, reciting '. . . the Plaintiff, acting by and through her attorney, requested leave to take a non-suit, and it appearing to the Court that such request should be granted; . . .'

On August 20, 1971, Early G. Robertson filed a motion to set aside the aforesaid dismissal and to reinstate the cause, alleging that at the time of the dismissal he had pending in said cause a cross-action against plaintiff, wherein he sought affirmative relief, and that the dismissal was entered without notice to him. The court granted this motion, set aside the previous order of dismissal and reinstated the cause by order entered on August 23, 1971.

The next day, August 24, 1971, at 1:27 p.m., plaintiff filed a written motion for a non-suit, which was never ruled on by the court .

Also, on August 24, 1971, but at 4:26 p.m., and after the filing of plaintiff's motion for non-suit, Early G. Robertson, filed a sworn petition for temporary restraining order and temporary injunction, alleging that Sarah Jo Ann Robertson Helle was presently withholding the physical custody of the children from him. He prayed that she be ordered to bring the children before the court.

On September 14, 1971, the 19th District Court temporarily restrained relator from withholding custody of the children from defendant, Early G. Robertson, and ordered that 'she bring said children before this Court at 1:30 p.m. on September 21, 1971, then and there to deliver same unto Early G. Robertson and abide further orders of this Court and show cause, if any, why said temporary restraining order should not be made into a temporary injunction according to the same terms thereof.' A copy of the above order was served on relator on September 20, 1971 by the sheriff of Hidalgo County, Texas. She did not appear before the 19th District Court of McLennan County, Texas, on September 21, 1971 at 1:30 p.m.

Thereafter, on September 30, 1971, relator was ordered by the court to appear before it on October 15, 1971, to show cause, if any, why she should not be found and held in contempt of court for willful violation of the court's order made on September 14, 1971. This order was served on her by the sheriff of Hidalgo County, Texas, on October 4, 1971. She did not appear at the appointed time, and the court, by order entered on October 15, 1971, found and held her to be in contempt of court for willfully violating its order rendered on September 14, 1971.

Relator, on October 15, 1971 and before the contempt order was issued, filed a plea to the jurisdiction of the 19th District Court, stating that she 'makes this special appearance pursuant to Rule 120a of the Texas Rules of Civil Procedure for the sole purpose of challenging the jurisdiction of this court over the person, Sarah Jo Ann Robertson Helle, and to the court's jurisdiction to hold her in contempt. . . .' She alleged that the court had no jurisdiction to hold her in contempt for failure to abide by the said order of the court. She prayed for a hearing on the plea to the jurisdiction and that, upon hearing, the entire proceeding be dismissed for want of jurisdiction over her person. No such hearing was had on the plea to the jurisdiction prior to the entry of the commitment order or to the filing of relator's petition for a writ of habeas corpus in this Court.

At the outset, we observe that the judgment entered by the 93rd District Court of Hidalgo County, Texas awarding the custody of the children involved in Cause No. 61204, in the 19th District Court of McLennan County, Texas, to Early G. Robertson was final when relator filed her suit for re-adjudication of their custody. That judgment remains in full force and effect until superseded by a subsequent judgment entered in a new and independent action for change of custody. Dannelley v. Dannelley, 417 S.W.2d 55 (Tex.Sup.1967). A divorce court has continuing exclusive jurisdiction over contempt proceedings instituted to enforce a judgment of that court. Boney v . Boney, 458 S.W.2d 907 (Tex.Sup.1970).

Unquestionably, the 19th District Court had potential jurisdiction over both relator and the children from the time suit was filed until relator moved for a non-suit. During that interval it could have issued its own order concerning the children, including an order requiring relator to bring the children into court and to deliver them to Early G. Robertson. It did not do so. The court could have ordered her to deliver the children to Early G. Robertson in connection with an order granting the non-suit and dismissing the suit. Ex parte Brown, 382 S.W.2d 97 (Tex.Sup.1964). It did not do so. No order of the 19th District Court relative to the custody of the children was in...