Ex Parte Hodges, 7314.

• Decision Date: 20 October 1937
• Docket Number: No. 7314.,7314.
• Citation: 109 S.W.2d 964
• Parties: Ex parte HODGES.
• Court: Texas Supreme Court

109 S.W.2d 964

Ex parte HODGES.

No. 7314.

Supreme Court of Texas.

October 20, 1937.

Original habeas corpus proceeding instituted in the Supreme Court by J. C. Hodges, as relator, for relief against relator's commitment to jail for contempt by failure to pay alimony in divorce suit by Muriel Blue Hodges against J. C. Hodges.

Relator remanded to custody of sheriff.

Underwood, Johnson, Dooley & Huff, E. T. Miller, and R. A. Wilson, all of Amarillo, for relator.

Underwood & Stickland and Riley Strickland, all of Amarillo, for respondent district judge.

CRITZ, Justice.

This is an original habeas corpus proceeding instituted in this court by J. C. Hodges, as relator. The record before us is rather meager, but for the purposes of this opinion we will conclude that the record discloses:

Muriel Blue Hodges, then the wife of relator, filed suit in the district court of Hutchinson county, Tex., against relator for divorce, for partition and division of certain property alleged to be community, for attorney's fees, for alimony pending the suit, and for costs. The prayer for alimony was not presented to or acted on by the district court until after final trial and judgment in the divorce case in that court. This matter will be more fully detailed later. The case was finally tried in the district court and Mrs. Hodges was awarded a divorce from relator as prayed for in her petition. She was also awarded a judgment for $250 as attorney's fees and for costs, but was denied any property recovery. The above judgment recites that Mrs. Hodges excepted thereto and gave notice of appeal therefrom to the Court of Civil Appeals at Amarillo. This appeal has been duly perfected by Mrs. Hodges by filing affidavit in forma pauperis. It is alleged in relator's application that by her assignments and briefs in the Court of Civil Appeals Mrs. Hodges is not seeking to question the validity or correctness of that part of the judgment of the district court granting her a divorce. In this regard it is alleged that she complains only of the amount of attorney's fees allowed her, and of the rulings and judgment of the trial court as regards the property in dispute. It is also shown that the relator has perfected no appeal from the district court's judgment, and has not complained thereof in any way.

After the district court had rendered its judgment and after the appeal therefrom to the Court of Civil Appeals had been fully perfected by Mrs. Hodges, she, for the first time, presented her petition for alimony to the district court. On hearing, the district court granted alimony in the sum of $60 per month, pending the final disposition of the case. Relator failed and refused to pay such alimony as directed by the district court. Mrs. Hodges complained of such refusal, and, after hearing before the district court, relator was held in contempt of that court and ordered committed to jail until he shall purge himself by paying to Mrs. Hodges or to her attorneys for her all accrued alimony. Relator applied to this court for a writ of habeas corpus, and same was granted and relator released on bail. The case in this court has been duly submitted, briefed, and argued, and is now before us for decision. The divorce case is still pending in the Court of Civil Appeals at Amarillo.

It is settled as the law of this state that the district court has the power to make and enforce an alimony order pending a divorce action even after an appeal from the divorce judgment has been fully perfected to the Court of Civil Appeals. Ex parte Lohmuller, 103 Tex. 474, 129 S.W. 834, 29 L.R.A.(N.S.) 303.

If we properly interpret their brief and written argument filed herein, counsel for relator contend that even if it should be held as a general rule the district court can make and enforce an alimony order in a divorce case while it is on appeal, still such cannot be done in this case because Mrs. Hodges is in no position to complain in the appellate court of that part of the district court's judgment granting her a divorce from relator, and, further, because by her assignments and brief in such appeal she has not so complained. We cannot follow this line of reasoning. This is a collateral attack on the district court's contempt order, and such an attack must fail unless such order is absolutely void. To hold that such order is void would be equivalent to holding that Mrs. Hodges is not now the wife of relator. In other words, to sustain relator's contention in this regard would be to hold that that part of the district court's judgment awarding her a divorce has become final and has not been appealed from. The record before us will not sustain such a ruling. An examination of the final judgment of the district court in the divorce suit affirmatively shows that when it was entered Mrs. Hodges excepted thereto and gave notice of appeal therefrom. In other words, she excepted and gave notice of appeal from the judgment as a whole, and not as to any particular part or parts thereof. She then perfected such appeal by the affidavit already described. We do not have before us copies of the appellant's assignments or briefs in such appeal, but, regardless of...