Ex parte Holloway

• Decision Date: 16 January 1973
• Docket Number: No. 18104,18104
• Citation: 490 S.W.2d 624
• Parties: Ex parte Pat S. HOLLOWAY, Petitioner.
• Court: Texas Court of Appeals

Page 624

490 S.W.2d 624

Ex parte Pat S. HOLLOWAY, Petitioner.

No. 18104.

Court of Civil Appeals of Texas Dallas.

Jan. 16, 1973.

Pat S. Holloway, Dallas, for appellant.

Cecil Woodgate, Andress & Woodgate, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

On December 13, 1972 the Domestic Relations Court No. 3 of Dallas County, Texas adjudged Pat S. Holloway to be in contempt of court for the violation of an order of said court rendered and entered on the 3rd day of October, 1972 which ordered Holloway to pay the sum of $8,512.50, representing delinquent child support payments, and for failure to pay medical expenses for the minor children involved in the sum of $480, making a total of $8,992.50. The court, in its commitment order dated December 13, 1972, ordered Holloway confined in the common jail of Dallas County, Texas for a period of 72 hours, and thereafter further confined until he had fully purged himself of such contempt for the payment of the sum of $8,992.50.

On December 19, 1972 Holloway, as petitioner, filed this original proceeding in this court in which he asked us to grant a writ of habeas corpus and to order him discharged from confinement. Our jurisdiction to hear this matter is expressly granted by art. 1824a, Vernon's Ann.Civ.Stat. of Texas.

Our Supreme Court in Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 (1948), laid down well defined rules which we must follow in resolving the question of whether or not petitioner Holloway is legally restrained of his liberty by virtue of the order of the Domestic Relations Court referred to above. The court said that in a habeas corpus proceeding the court had only limited powers and that the inquiry is whether or not a citizen is restrained of his liberty without due process of law. 'In determining this matter we are restricted to the question of jurisdiction, the lack of which would render the judgment void. In passing on the court's authority we look to the jurisdiction of the subject matter involved in the alleged contempt, jurisdiction of the person, and the power of the court to render the particular judgment. * * * We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order.'

In Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953) the Supreme Court pointed out that such an action amounts to a collateral attack upon the judgment of contempt and in order for such judgment to be subject to such attack it must be absolutely void, and not merely voidable. Ex parte Hodges, 130 Tex. 280, 109 S.W.2d 964 (1937); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626 (1939).

In Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700 (1955), Chief Justice Hickman, speaking for the Supreme Court, said that in deciding the validity of the decree the courts have no authority to evaluate facts and that the mere fact that a judgment may be erroneous does not render it void. 'It can be declared void by this court if, and only if, the testimony constituted no evidence at all. In our opinion the least that can be said concerning the testimony above pointed out is that it constituted some evidence of the guilt of relators. We need go no further than that.'

These rules have been consistently followed by the Supreme Court and our courts of civil appeals since the enactment of art. 1824a, V .A.C.S., in 1969. Ex parte Williams, 469 S.W.2d 449 (Tex.Civ.App., Beaumont 1971) and Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1962).

With these rules in mind we have examined the record before us to determine the question of the validity of the trial court's order of commitment. The original decree of divorce between Pat S. Holloway and his former wife, Linda, was entered on June 6, 1969 by Domestic Relations Court No. 3 of Dallas County, Texas. After awarding Linda a divorce against Pat Holloway the decree recites that the parties have heretofore entered into a property settlement agreement dated May 28, 1969 and 'the court, after having considered said Property Settlement Agreement, finds that same should be approved and made a part of the judgment of this court * * *.' The judgment then provides that such compromise and settlement agreement 'be and is hereby incorporated into this Judgment of Divorce and made a part hereof as if copied in full herein, and said Property Settlement Agreement is in all things hereby adopted in full and for all purposes made an order of this court.'

The decree then orders Pat Holloway to pay the sum of $362.50 on the first of each month beginning June 1, 1969 for each of two minor children. The judgment is completely silent concerning any order directing Holloway to pay medical expenses incurred for the minor children. The compromise and settlement agreement, referred to by the court in its order, is not attached to the order now before us.

On November 9, 1971 Linda filed an application for contempt order in the domestic relations court in which she alleged that Pat Holloway was in arrears and had failed to pay monthly child support payments in the total sum of $4,000. No reference is made in this application concerning failure of Pat Holloway to pay any medical expenses.

On August 22, 1972, following a hearing on February 7, 1972, the trial court entered a judgment decreeing that Pat Holloway was guilty of contempt in failing to pay child support in the sum of $2,900 but ordering that his confinement be suspended until September 1, 1972.

On September 12, 1972 the court entered its commitment order in which it was recited that Pat Holloway had not paid the sum of $2,900 for child support, as previously ordered, and the said Holloway was ordered confined to jail until he complied with the order of the court. On September 28, 1972 Linda filed an application for contempt order in which she alleged that 'Respondent Pat S. Holloway, is still in arrears between the period of November 2, 1971 and September 18, 1972, and any subsequent period thereafter wherein there is a delinquency of child support payments.' No reference is made in this application concerning demand for or failure on the part of respondent to pay medical bills.

On October 3, 1972 the court adjudged Holloway to be...