Ex parte Hooks, A--11688

• Citation: 415 S.W.2d 166
• Decision Date: 22 March 1967
• Docket Number: No. A--11688,A--11688
• Parties: Ex parte Earl M. HOOKS, Relator.
• Court: Supreme Court of Texas

Page 166

415 S.W.2d 166

Ex parte Earl M. HOOKS, Relator.

No. A--11688.

Supreme Court of Texas.

March 22, 1967.

Rehearing Denied May 24, 1967.

Everett Lord, Beaumont, for relator.

Ernest Browne, Beaumont, for respondent.

POPE, Justice.

This is an original habeas corpus proceeding. Relator, Earl M. Hooks, says that the district court was powerless after his children reached their eighteenth birthday to enforce by contempt a judgment for accrued child support that was rendered before they became eighteen. We hold that art. 4639a, Vernon's Ann.Civ.St. empowered the district court to enforce its order by contempt.

Relator and Geraldine Hooks were divorced in 1946. They had two children, Margaret, born January 29, 1944, and Dina Ray, born June 25, 1945. Hooks did not comply with the court's orders for child support and on March 31, 1961, after hearing, the court found him in contempt and ordered him to jail. He remained in jail until May, 1961. On that date the court rendered a judgment which released Hooks from jail but ordered:

'(T)hat the defendant, Earl M. Hooks, be held in continuing contempt for the sum of the present arrears in the amount of Four Thousand and Seventy Dollars ($4,070.00) and for court costs in the amount of Six Dollars and Twenty-Five Cents ($6.25) and for attorney's fees in the amount of One Hundred ($100.00) Dollars in the total amount of Four Thousand One Hundred Seventy-Six Dollars and Twenty-Five Cents ($4,176.25) but that the defendant, Earl M. Hooks, be released from custody upon the payment of Sixty ($60.00) Dollars each month commencing on the 9th day of May, 1961, said payments to be continued until the youngest child of the marriage * * * shall reach the age of eighteen (18) years and then the defendant, Earl M. Hooks, to be held in continuing contempt until the arrears in the amount of Four Thousand and Seventy ($4,070.00) Dollars has been paid in full; and further that an additional Five Dollars ($5.00) per month commencing on the 9th day of May, 1961, be paid in addition to the Sixty ($60.00) Dollars child support payment until such time as the attorney's fees and court costs have been paid.'

On May 9, 1961 Hooks was delinquent in his support payments and the extent of his arrearage was definitely fixed by the judgment. Ex parte Savelle, 398 S.W.2d 918 (Tex.1966). On that date Margaret was seventeen and Dina Ray was sixteen so all of the $4,070.00 arrearage accumulated before either of the children had reached the age of eighteen. The 1961 judgment definitely ordered Hooks to pay that sum when the youngest child of the marriage reached age eighteen. Unless he paid it 'then,' he would be in contempt until it was paid in full.

Hooks, in compliance with the court's 1961 judgment, made the monthly payments until the younger child reached eighteen years of age on June 25, 1963. He then refused to comply with the judgment that he pay the delinquent sum of $4,070.00. Hook's former wife, Geraldine, instituted this contempt proceeding to enforce the 1961 judgment for arrearages in support. After notice, hearing and a trial the court on September 12, 1966, held Hooks in contempt for his non-compliance with the 1961 judgment and order. The parties stipulated that Hooks had failed to comply with the order to pay the arrearage of $4,070.00 and also that he was capable of paying the sum.

Hook's sole contention is that the district court was powerless to enforce its 1961 order after the youngest child reached the age of eighteen. Article 4639a, V.C.S., is the source of the judicial authority to make judgments concerning child support. The pertinent provisions of the statute are:

'* * * The court may be judgment order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, * * *.'

The statute is in two parts. The first part empowers the court to order periodical payments until the child reaches eighteen. The enforcement provision immediately follows the grant of powers to order the support. The statute limits orders for support to the pre-eighteen period; the enforcement provision, however, contains no such limitation. Instead, the statute states that the court shall have 'full power and authority to enforce said judgments. * * *'

Hooks says that the district court lost all powers to enforce the pre-existing valid judgment for support at the instant the child reached eighteen. He emphasizes his position by reference to the 1961 order which ordered him 'then' to be held in continuing contempt until the arrearages were paid. He concludes that this is an order for child support after the children reached eighteen. In our opinion Hooks has confused the power of the court to order support during the pre-eighteen period with the court's power to enforce an order. The entire sum embodied in the 1961 order in question was determined as a fixed and certain amount that was delinquent during the time the children were less than eighteen.

Hook's contention infers a legislative intent that an order to pay accrued support payments would be wholly undone by the delinquent parent who, as Hooks has done, successfully persuades a judge to postpone payment of delinquent support payments until the child reaches eighteen. It would mean that a contemnor who is in jail by an order entered before a child reaches eighteen, must be discharged when the child becomes eighteen despite his continued contumacious conduct. It would mean that a delinquent parent, as a practical matter, could always escape the final payment of child support. We should cautiously attribute such reasoning to the Legislature.

Article 4639a was enacted for the purpose of affording judicial power to a divorce court to decree and compel the payment of allowances for the support of dependent minor children after the entry of the divorce decree. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931). A contempt proceeding is the only means of enforcement of a valid support order. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957). There is no power to enforce a support judgment by execution, Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953 (1936), nor by garnishment, McDonald v. Mercantile National Bank, 162 S.W.2d 991 (Tex.Civ.App.1942, no writ). Since the only means for enforcement is by contempt proceedings, and since the Legislature expressly stated that the court has 'full power and authority to enforce said judgments by civil contempt proceedings,' we conclude that it intended that this full power should not be shortened by narrowly construing its intent. The legislative purpose was to provide a means to enforce judgments for the support of children beneath the age of eighteen, not to wipe them out.

The relator, Earl M. Hooks, is remanded to the custody of the sheriff of Jefferson County, Texas.

CALVERT, C.J. and SMITH, GREENHILL and STEAKLEY, JJ., dissenting.

DISSENTING OPINION

SMITH, Justice.

I respectfully dissent. I would hold the judgment of contempt void because the so-called judgment of May 9, 1961, holding Hooks 'in continuing contempt,' is not a contempt judgment, but is in reality an agreed judgment. The judgment of May 9, 1961, is only a recitation of an agreement between the parties. The agreement merely recognizes an indebtedness. The former Mrs. Hooks had recourse to the courts upon breach of the agreement to enforce the same, but at no time did she have the right to substitute contempt proceedings for the legal remedy open to her. Hooks lived up to the agreement by making monthly payments until June 25, 1963, the date the youngest child of the marriage of Hooks and Geraldine became eighteen years of age. Thereafter, on January 22, 1964, Geraldine instituted a new contempt proceeding against Hooks when her only remedy was to institute a suit in a court of competent jurisdiction to enforce the agreement to pay the debt of $4,070.00. The contempt judgment of September 12, 1966, held Hooks in contempt solely because he failed to carry out the so-called judgment of May 9, 1961. The May 9th, 1961, judgment was incorporated into and made a part of the new judgment.

Hooks contends here that the contempt judgment is too vague, indefinite, and uncertain to be enforceable; therefore, it is void. When the history of this case is traced from its inception, it should be recognized that a sounder reason exists than that advanced by Hooks as to why he not be held in contempt. In effect, Hooks is being denied due process of law, in that, he is now confronted with a proceeding for contempt at a time after an agreement was reached between the parties.

The record shows that Hooks and Geraldine were divorced in 1946. The divorce decree awarded the custody of their two children, Margaret, born in 1944, and Dina Ray, born June 25, 1945, to Geraldine and ordered Hooks to make child support payments to the mother for the benefit of the two children. On March 31, 1961, Hooks having failed to comply with the Court's order, and after a hearing, was found to be in contempt. Hooks was ordered to jail and remained there until he was released in accordance with the May 9th, 1961, agreement. At that time, the children were both under eighteen years of age. The trial court released Hooks from jail obviously for the reason that Hooks was not financially able to pay the delinquent payments. In lieu of ordering Hooks to jail until he purged himself of contempt by paying the sum then due, the court approved the agreement of the parties entered into on May 9, 1961. I cannot conceive of any District Judge being so inconsiderate of...