Ex parte Johns

Decision Date22 January 1991
Docket NumberNo. 05-90-01464-CV,05-90-01464-CV
Citation807 S.W.2d 768
PartiesEx parte Chris S. JOHNS, Relator, Appellant.
CourtTexas Court of Appeals

Reyburn U. Anderson, Dallas, for appellant.

Ellen Abbott, Dallas, for appellee.

Before WHITHAM, THOMAS and WHITTINGTON, JJ.

OPINION

THOMAS, Justice.

In this habeas corpus proceeding, relator Chris S. Johns was held in contempt of court for failure to pay child support. The trial court ordered relator committed to jail for three days for each of the 218 violations or until he paid the child support arrearage of $90,140.50. Relator contends that the judgment of contempt and his commitment are void because: (a) he was deprived of his right to a jury trial; (b) his former spouse failed to meet her burden of proof concerning his ability to pay the arrearage; (c) the decree of divorce is not enforceable by contempt because it is ambiguous; and (d) there is no valid order of commitment. Finding no merit in relator's arguments, we deny the application.

CATEGORIZING THE JUDGMENT OF CONTEMPT

Relator categorizes this as a criminal contempt proceeding and contends that he is incarcerated under a "criminal" commitment order. On this basis, he argues that he should be released because: (a) he was denied a jury trial; and (b) his former spouse had the burden of establishing his ability to pay the child support arrearage and she failed to do so. It is necessary to first determine whether this order is civil or criminal in nature because the proper classification is dispositive of these arguments. The distinction between civil and criminal contempt is based on the nature and purpose of the penalty imposed. In re Rumaker, 646 F.2d 870, 871 (5th Cir.1980). In a civil contempt matter, the court is attempting to persuade the contemnor to obey a previous order. Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir.1980); Ex parte Harrison, 741 S.W.2d 607, 609 (Tex.App.--Austin 1987, orig. proceeding). Civil contempt provides for remedial punishment. A judgment which provides that a contemnor is to be committed unless and until he performs the affirmative act required by the court's order is a civil contempt order. This type of conditional penalty is civil because it is designed to compel the doing of some act. See Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1429-32, 99 L.Ed.2d 721 (1988). Because the contemnor can avoid incarceration by obeying the court's order, the phrase has been coined that a civil contemnor "carries the keys of his imprisonment in his own pocket." See Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976). In these matters, a judge can impose either a fine or imprisonment, or both, so long as the imprisonment is conditional. Further, it is possible in a civil proceeding to impose a determinate sentence so long as the order contains a "purge clause." See Shillitani, 384 U.S. at 370 n. 6, 86 S.Ct. at 1536 n. 6.

Conversely, a criminal contempt order is punitive in nature and is an exertion of the court's inherent power to punish a contemnor for "some completed act which affronted the dignity and authority of the court." Werblud, 536 S.W.2d at 545. In criminal contempt proceedings, commonly referred to as "punitive," the contemnor is being punished for his improper actions "and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts." Ex parte Hosken, 480 S.W.2d 18, 23 (Tex.Civ.App.--Beaumont 1972, orig. proceeding). Here too, a judge can impose a fine or imprisonment, or both. However, the distinguishing feature is that the penalty is unconditional. See also Kilgarlin & Ozmun, Contempt of Court in Texas--What You Shouldn't Say to the Judge, 38 BAYLOR L.REV. 291, 297-98 (1986) (a discussion of the distinctions between civil and criminal contempt).

The order in issue states, in pertinent part:

IT IS THEREFORE ORDERED that Relator is committed to the county jail of Dallas County, Texas, for a period of 3 days for each separate violation enumerated above or until Relator has paid $90,140.50 through the Dallas County Child Support Agency, the child support arrearage.

(emphasis added). Thus, relator is to be confined for 654 days unless he pays the child support arrearage of $90,140.50. If the arrearage is paid, he will be immediately released from jail. Because of the harshness of this punishment, relator contends that this constitutes a criminal commitment order.

While we agree that this is a burdensome order given the length of the commitment and the amount of the arrearage, we do not agree that these facts alter the classification of the contempt. The fact of punishment and the severity of punishment is not the determining factor in distinguishing civil from criminal contempt. Imprisonment obviously is punitive. It will, however, be viewed as remedial or coercive if the court imposes a conditional release upon the contemnor's willingness to comply with the court order. The Supreme Court has stated the test as: "what does the court primarily seek to accomplish by imposing sentence?" Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535. Looking at the nature and purpose of the penalty imposed in this matter, it is apparent that the trial court is exerting its "considerable judicial authority to persuade, or coerce" relator to comply with the previous order and that upon his doing so, he will be immediately released from jail. Beginning in 1982, relator stopped making the court ordered child support payments and began a course of conduct of making sporadic payments or no payments at all. Thus, relator's actions in failing to comply with the child support order and allowing the arrearages to accrue are the reason that the punishment is so severe. Because of the conditional nature of this order, we conclude that relator is confined pursuant to a civil contempt order.

RIGHT TO JURY TRIAL

Having determined the character of the order, we turn to relator's assertion that he was entitled to a jury trial because the imposition of this "harsh" sentence constitutes a serious offense, citing Ex parte Griffin, 682 S.W.2d 261 (Tex.1984). While there is no absolute right to trial by jury in contempt proceedings, the Supreme Court has determined that a contemnor possesses such a right in criminal contempt cases where the punishment assessed is "serious." See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975). Six months imprisonment and/or a $500 fine has become the normal measure for distinguishing petty offenses from serious offenses. A contempt is regarded as "petty" where the punishment does not exceed six months imprisonment or a $500 fine. See Werblud, 536 S.W.2d at 546. Conversly, if a greater punishment is assessed, the proceeding is normally classified as "serious." See Griffin, 682 S.W.2d at 262.

Obviously, a jail sentence of almost two years constitutes a "serious" matter. However, relator's argument fails and his reliance upon Griffin is misplaced. In Griffin, the trial court issued a criminal contempt order assessing 30 days in jail and imposing a fine of $104,000 ($500 for each of 208 separate violations). The Texas Supreme Court held that this constituted a serious case and ordered Griffin discharged because he had not been afforded a jury trial and he had not waived his right to one. Griffin, 682 S.W.2d at 262. While the Griffin court did not specifically address whether the contempt order was civil or criminal in nature, the facts demonstrate that it was a punitive commitment order. Since our order is one for civil contempt, not punitive contempt, Griffin is inapplicable.

A contemnor's right to a jury trial in civil contempt matters was addressed by the United States Supreme Court in Shillitani. In this matter, contempt proceedings were instituted against two witnesses after they refused to testify before a grand jury. Neither witness was indicted or given a jury trial. After a finding of guilt, the trial court sentenced both to two years' confinement with the proviso that if either answered the questions before his sentence ended, he would be released. The Court held that the conditional nature of these sentences rendered each of the actions a civil contempt proceeding; thus, an indictment and jury trial were not constitutionally required. Shillitani, 384 U.S. at 365, 86 S.Ct. at 1533. In explaining a court's power to enforce compliance of lawful orders through civil contempt, the Court stated: "The conditional nature of the imprisonment--based entirely upon the contemnor's continued defiance--justifies holding civil contempt proceedings absent the safeguards of indictment and jury...." Shillitani, 384 U.S. at 370-71, 86 S.Ct. at 1535-36 (citations omitted). Because relator's confinement is conditional, we hold that he was not entitled to a jury trial.

BURDEN OF PROOF OF INABILITY TO PAY

The justification for coercive imprisonment in civil contempt depends upon the ability of the contemnor to comply with the court's order. See Shillitani, 384 U.S. at 371, 86 S.Ct. at 1536. In this connection, relator asserts that his former spouse had the burden of proof to establish that he had the ability to pay the child support arrearage and that she failed to do so. In support of his position, relator relies upon Hicks, 108 S.Ct. 1423. Rather than providing support for relator's position, Hicks demonstrates that his arguments are without merit. In Hicks, the Supreme Court reviewed a California child support contempt order. Under state law, there was a statutory presumption that an obligated parent remained able to make the required child support payments. Further, ability to pay was an element of the offense of contempt. The Court held that the statutory presumption would violate the due process clause in a criminal contempt proceeding because it would impose upon a respondent the burden of...

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