Ex parte Howell, No. 01-92-01148-CV

CourtCourt of Appeals of Texas
Writing for the CourtBefore OLIVER-PARROTT; OLIVER-PARROTT
Citation843 S.W.2d 241
PartiesEx parte Thomas Keith HOWELL, Relator. (1st Dist.)
Decision Date03 December 1992
Docket NumberNo. 01-92-01148-CV

Page 241

843 S.W.2d 241
Ex parte Thomas Keith HOWELL, Relator.
No. 01-92-01148-CV.
Court of Appeals of Texas,
Houston (1st Dist.).
Dec. 3, 1992.

Maurice Bresenhan, Jr., Houston, for appellant.

Martha C. Pitkin, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and O'CONNOR and WILSON, JJ.

OPINION

OLIVER-PARROTT, Chief Justice.

Relator, Thomas Keith Howell, was found in contempt for failing to pay child support and ordered confined for 180 days in the Harris County jail. He brings this original habeas corpus proceeding to challenge the order of commitment dated November 12, 1992.

Page 242

Dana Lynn Howell and Thomas Keith Howell divorced on July 21, 1988. 1 The fourth page of the final decree of divorce provided:

IT IS ORDERED AND DECREED that Thomas Keith Howell shall pay to Dana Lynn Howell child support of $250.00 per month, in two installments per month of $125.00 each, with the first installment being due and payable on July 1, 1988, and a like installment being due and payable on each 1st and 15th day of each month thereafter until the date of the earliest occurrence of one of the following events:

....

IT IS ORDERED AND DECREED that all payments shall be made through: Harris County Probation Department, Child Support Division, 1115 Congress, Houston, Texas 77002 and shall bear cause number 88-23752, and thereafter promptly remitted to the Managing Conservator for the support of the minor child. Payments shall be in the form of cashier checks or money order only.

The final decree of divorce identified Kristen Blair Howell as the child of the marriage and Dana Lynn Howell as her managing conservator.

According to exhibit A of the order of commitment, relator made no payments through the Child Support Division from August 1, 1988 through August 15, 1992. The exhibit is four pages long and details the amount due on each date (totaling $12,250) and the amount paid ($0). However, the order of commitment itself gives relator credit for $3,675 in payments made outside of the Child Support Division.

At the hearing on November 12, Mrs. Howell testified that exhibit A was correct except that she had received directly from relator a payment of $75 and one for $150. She did not recall any other payments. Relator introduced 20 cancelled checks payable to Mrs. Howell from his parents. The checks had various specific dates from 1988 through 1992 and totalled $1,350. He testified that he had made direct payments to Mrs. Howell at specific months in 1989 through 1992, which totalled $2,300. Additionally, relator indicated that his parents had paid $1,247 in checks to stores and insurance companies on behalf of Kristen. Copies of these checks are not in the record. The credit granted by the trial court comes close to equalling $225 (the amount Mrs. Howell said she directly received from relator), plus $1,350 (the amount corresponding to the checks from relator's parents), plus $2,300 (the amount relator said he directly paid to Mrs. Howell). Neither party complains of the amount of credit actually allowed.

Relator makes eight complaints about the order of commitment.

First, he contends the order is void and unenforceable because the divorce decree is not attached as exhibit B as stated on the face of the order, and the exhibit B that is attached makes no reference to the Child Support Division. He also states the divorce decree was never received into evidence at the hearing. The order of commitment before this Court contains a certified copy of the divorce decree as exhibit B that refers to the Child Support Division. Relator cites to no authority for the proposition that the divorce decree must be introduced into evidence. We find no merit to relator's first complaint.

Relator contends in his second complaint that the order of commitment states only a lump sum amount due and fails to state specifically and with particularity the provisions of the divorce decree for which enforcement was sought and a time, date, and place of each occasion constituting a violation of the divorce decree. The order reads in part:

has failed and refused to pay child support as heretofore ordered in an amount of 12,250.00 as set forth in Exhibit A, minus $3,675.00 credit granted for payments made outside of the Harris County Child Support Office, yielding a net child support due of $8575.00.

Page 243

Exhibit A consists of four pages with three columns reading "DATE DUE," "AMOUNT DUE," AND "AMOUNT PAID THRU Harris County Child Support." The dates start with August 1, 1988, and cover the first and fifteenth of each month through August 15, 1992. The "Amounts Paid" are $0. There is no credit indicated on the exhibit for payments made directly by relator or his parents to Mrs. Howell. The credit is listed only as a lump sum amount on the face of the order.

Section 14.33(a) of the Family Code provides:

An enforcement order shall contain findings setting out in ordinary and concise language the provisions of the final order, decree, or judgment for which enforcement was sought, the acts or omissions that are the subject of the order, the manner of noncompliance, and the relief awarded by the court. If the order imposes incarceration ... an enforcement order must contain findings setting out specifically and with particularity or incorporating by reference the provisions of the final order, decree, or judgment for which enforcement was sought and the time, date, and place of each occasion on which the respondent failed to comply with the provision and setting out the relief awarded by the court.

TEX.FAM.CODE ANN. § 14.33(a) (Vernon Supp.1992) (emphasis added).

For his argument, relator relies on Ex parte Greene, 788 S.W.2d 724 (Tex.App.--Houston [14th Dist.] 1990, orig. proceeding) and Ex parte Boykins, 764 S.W.2d 590 (Tex.App.--Houston [14th Dist.] 1989, orig. proceeding). We find Greene, a case of criminal contempt, distinguishable because only a total arrearage amount was given; there was no itemization at all. Id. at 726. In Boykins, a case of civil contempt, the enforcement order specified only total arrearages of $8,800, although the show cause order contained an itemized list of nonpayments totalling $12,400. Id. at...

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3 practice notes
  • Ex parte Chambers, No. 94-0495
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...confinement. Ex parte Barnett, 600 S.W.2d 252 (Tex.1980); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953). See also Ex parte Howell, 843 S.W.2d 241, 245 (Tex.App.--Houston [1st Dist.] 1992, orig. We first consider whether the order Chambers is accused of violating is sufficiently specif......
  • In re Brown, No. 07-03-0165-CV.
    • United States
    • Court of Appeals of Texas
    • May 8, 2003
    ...is one for which the party is at risk of confinement longer than six months, based on the pleadings in the case); Ex parte Howell, 843 S.W.2d 241 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (a charge for which confinement may exceed six months is serious); Cf. Ex parte McNemee, 60......
  • In re W.H., NO. 02-12-00370-CV
    • United States
    • Court of Appeals of Texas
    • September 17, 2012
    ...1995, orig. proceeding) (emphasis added) (quoting Ex parte Sproull, 815 S.W.2d at 250 (Tex. 1991) (orig. proceeding)); Ex parte Howell, 843 S.W.2d 241, 244 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). However, the trial court's August 24 and 27, 2012 orders state that W.H. "was n......
3 cases
  • Ex parte Chambers, No. 94-0495
    • United States
    • Supreme Court of Texas
    • June 15, 1995
    ...confinement. Ex parte Barnett, 600 S.W.2d 252 (Tex.1980); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953). See also Ex parte Howell, 843 S.W.2d 241, 245 (Tex.App.--Houston [1st Dist.] 1992, orig. We first consider whether the order Chambers is accused of violating is sufficiently specif......
  • In re Brown, No. 07-03-0165-CV.
    • United States
    • Court of Appeals of Texas
    • May 8, 2003
    ...is one for which the party is at risk of confinement longer than six months, based on the pleadings in the case); Ex parte Howell, 843 S.W.2d 241 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (a charge for which confinement may exceed six months is serious); Cf. Ex parte McNemee, 60......
  • In re W.H., NO. 02-12-00370-CV
    • United States
    • Court of Appeals of Texas
    • September 17, 2012
    ...1995, orig. proceeding) (emphasis added) (quoting Ex parte Sproull, 815 S.W.2d at 250 (Tex. 1991) (orig. proceeding)); Ex parte Howell, 843 S.W.2d 241, 244 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). However, the trial court's August 24 and 27, 2012 orders state that W.H. "was n......

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