Ex parte Jimenez, 04-87-00347-CV

• Decision Date: 29 July 1987
• Docket Number: No. 04-87-00347-CV,04-87-00347-CV
• Citation: 737 S.W.2d 358
• Parties: Ex parte Joseph Alan JIMENEZ, Relator.
• Court: Texas Court of Appeals

Page 358

737 S.W.2d 358

Ex parte Joseph Alan JIMENEZ, Relator.

No. 04-87-00347-CV.

Court of Appeals of Texas San Antonio.

July 29, 1987.

Robert Valdez, San Antonio, for appellant.

Adam T. Serrata, San Antonio, for appellee.

En Banc (On Court's Own Motion).

PER CURIAM.

Relator, Joseph Alan Jimenez, filed his petition for writ of habeas corpus and was ordered released from custody, on bond, pending a hearing in this court.

On March 25, 1982, relator and the real party in interest, Betty Lou (Jimenez) Bernal (movant), were divorced. Movant was awarded custody of the parties' minor child and relator was ordered to make child support payments of $25.00 a week until the child attains the age of eighteen.

Movant filed a motion for contempt, on March 17, 1987, for relator's failure to make child support payments pursuant to the divorce decree, alleging the arrearage to be $2,700.00. That same day, the trial court signed an order authorizing Robert A. Vela & Associates, a disinterested party, to serve process on relator.

Relator appeared at the show cause hearing June 9, 1987, and attempted to present to the trial court his original answer and special exceptions. The court refused to consider the exceptions because they had not been previously filed with the clerk. Only the movant presented evidence. Orally finding relator in contempt, the court assessed a jail term of 45 days and gave relator until the following day to purge himself of the contempt by paying $1,500.00 immediately and the balance in weekly installments of $15.00 in addition to the $25.00 due weekly under the divorce decree.

On June 10, 1987, the parties returned to the trial court. Relator did not pay the $1,500.00. The trial court signed the order of contempt committing relator to confinement in the Bexar County jail for 45 days and until he pays $2,619.00 child support arrearage.

Relator claims the contempt order and order of commitment are void because relator was requested to testify against himself and thus violate his constitutional protection against self-incrimination. At the hearing movant's attorney attempted to question relator. Relator's objection was sustained. Thus, relator never took the stand and never testified. The trial court committed no error and relator's rights were not violated.

Relator complains he was held in contempt for child support payments not accruing until after movant filed her motion for contempt. The motion was filed March 17, and the judgment was signed June 10. While the movant did ask for all payments missed between the filing of the motion and the judgment, the trial court did not order it. Although the order does not state the inclusive dates, the statement of facts clearly shows the trial court did not consider any payments due after March 17, and the order so reflects.

Relator urges the order of contempt is void because movant failed to prove relator was able to pay the child support, relying on Ex parte Lopez, 710 S.W.2d 948 (Tex.App.--San Antonio 1986, no writ). The portion of Lopez which placed that burden on the movant was expressly overruled by this court, in Ex parte McIntyre, 730 S.W.2d 411 (Tex.App.--San Antonio 1987, no writ) (en banc). "[T]he respondent to a motion for contempt for failure to pay wife or child support has the burden of establishing by a preponderance of the evidence in the trial court the defense of involuntary inability" to make the payments. Relator presented no evidence on the defensive issue.

Relator next complains the trial court refused to require movant to plead each and every act of contempt committed. In her motion for contempt, movant alleged relator failed to make child support payments pursuant to the divorce decree and was in arrears $2,700.00.

At the hearing relator presented his original answer and special exceptions in which he complained movant failed to allege the specific date each missed payment was due. The trial court noted the answer had not been filed prior to the hearing and overruled it.

A contemnor has sufficient notice when the motion for contempt and the show cause order clearly show the relator that he is accused of failing to pay child support and the amount of the arrearages. Ex parte Gray, 654 S.W.2d 68, 70 (Tex.App.--Eastland 1983, no writ); Ex parte Barnett, 594 S.W.2d 805, 809 (Tex.Civ.App.--Dallas 1980, no writ).

Relator cites Ex parte McNemee, 605 S.W.2d 353 (Tex.Civ.App.--El Paso 1980), overruled on other grounds, Huff v. Huff, 648 S.W.2d 286 (Tex.1983), as support. In McNemee, however, the movant sought and obtained separate punishment for 112 acts of contempt. While each individual assessment of jail time was under six months, the total jail time exceeded 300 days. Because the trial court assessed a separate punishment for each act, the respondent was entitled to notice reciting each act separately. Ex parte McNemee, 605 S.W.2d at 357. However, in the instant case, only one punishment was assessed, not several punishments for multiple acts of contempt. In this case, it is sufficient that the movant alleged a lump sum arrearage.

Relator next alleges the agreed divorce decree of March 25, 1982, which orders him to make child support payments, is vague and ambiguous because it does not state a specific date each payment will become due. However at argument to this court, relator for the first time complained that the agreed order violates Ex parte Griffin, 712 S.W.2d 214 (Tex.App.--San Antonio 1986, writ dism'd) because it does not name a specific person to whom the payments are to be made.

After setting out that movant is the managing conservator, the divorce decree provides:

IT IS THEREFORE ORDERED that Respondent pay child support in the amount of Twenty-Five and no/100 ($25.00) Dollars per week, payable in weekly installments of Twenty-Five and no/100 ($25.00) Dollars per week, with the first payment being due and payable on the 26 day of March, 1982, and a like amount each and every week thereafter until the child with respect to whom payments are made shall attain the age of eighteen (18). Payments are to be made through the Bexar County Child Support Office at 203 West Nueva, P.O. Box 7546, San Antonio, Texas 78207.

There is no particular requirement in law that payments of support be made to a specific person. An order may require that...