Ex parte Kimsey, 08-95-00070-CV

• Citation: 915 S.W.2d 523
• Decision Date: 26 October 1995
• Docket Number: No. 08-95-00070-CV,08-95-00070-CV
• Parties: Ex parte Roy Edwin KIMSEY, Jr., Relator.
• Court: Court of Appeals of Texas

Page 523

915 S.W.2d 523

Ex parte Roy Edwin KIMSEY, Jr., Relator.

No. 08-95-00070-CV.

Court of Appeals of Texas,

El Paso.

Oct. 26, 1995.

Order on Rehearing Nov. 8, 1995.

Bill G. Alexander, Law Offices of Bill Alexander, P.C., Odessa, for relator.

H. Thomas Hirsch, Hirsch, Stroder & Hobbs, L.L.P., Odessa, for respondent.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

This is an original proceeding in habeas corpus. We deny relief and remand Relator to the custody of the sheriff of Midland County.

FACTUAL SUMMARY

Dale Kimsey filed suit for divorce on July 1, 1992. In January 1994, she requested additional temporary orders seeking interim attorney's fees and anticipated expenses for appraisals, accountants, actuaries and other experts necessary for a proper evaluation of the extent of the community estate and the presentation of valuation evidence at trial. Following a hearing on Mrs. Kimsey's requests, the trial court entered its "Third Amended Temporary Order" which provided in pertinent part as follows:

As additional temporary spousal support, IT IS ORDERED that ROY EDWIN KIMSEY, JR. shall pay $50,000 into the registry of the court as an attorney fee DALE B. KIMSEY, by making these following payments as directed to the District Clerk of Midland County, Texas:

(1) The sum of $5,000 with [sic] be paid into the registry of the court by 5 o'clock p.m. on Wednesday, August 3, 1994; and

(2) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, August 17, 1994; and

(3) The sum of $5,000 with [sic] be paid into the registry of the court by 5 o'clock p.m. on Wednesday, August 31, 1994; and

(4) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, September 14, 1994; and

(5) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, September 28, 1994; and

(6) The sum of $5,000 with [sic] be paid into the registry of the court by 5 o'clock p.m. on Wednesday, October 12, 1994; and

(7) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, October 26, 1994; and

(8) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, November 9, 1994; and

(9) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, November 23, 1994; and

(10) The sum of $5,000 will be paid into the registry of the court by 5 o'clock p.m. on Wednesday, December 7, 1994; and

immediately upon deposit of any of the aforementioned sums, any unpaid attorney or attorney with currently due fees who has performed legal services for DALE B. KIMSEY in this cause may make a written, detailed application to the court for withdrawal of an unpaid or currently due attorney fee or expense, which application, after review in open court, will be approved or disapproved by the court. If good cause is shown; [sic] the court will review portions of fee applications in camera so as to prevent inappropriate revelations of sensitive matters or strategy. [Emphasis added].

In addition, Relator was ordered to pay $100 per week in child support; $500 per week as temporary spousal support; a one-time $3,500 payment into the registry of the court for a home and/or grounds' maintenance fund; a one-time $5,000 payment into the registry of the court as a medical expense fund; and the monthly mortgage payment obligation in an unspecified sum.

Mrs. Kimsey filed a motion for contempt alleging that Relator had failed to pay the $50,000 into the registry of the court. In response, Relator asserted that he lacked the ability to pay because he had filed for bankruptcy and that his income by virtue of the Plan of the Debtor was committed to the payment of creditors, lienholders and that he was unable to borrow additional funds. During the hearing, the evidence established that Relator had settled a legal malpractice claim unrelated to the divorce proceedings and that he had received $20,000 which was stipulated to be community property. The trial court found that Relator was guilty of separate violations in that he failed to pay each of the required $5,000 payments. The court further found that Relator had within his possession community funds in the amount of $20,000 which were available to make the required payments. He was ordered committed to the Midland County Jail until he purged himself of contempt by paying $20,000 into the registry of the court. Relator thus brings his application for writ of habeas corpus. We granted leave to file, and released Relator on bond pending disposition. He raises not the propriety of the order nor the jurisdiction of the trial court to enter the order during the pendency of the bankruptcy proceeding, nor is the record clear as to the status of the bankruptcy. Because Relator has not sought release on that basis, we do not address the bankruptcy issue. Further, although Relator challenged the motion for contempt on the basis of his inability to pay, that affirmative defense is not urged herein and accordingly is not properly before us. Instead, Relator urges the singular theory that the contempt order is void in that he has been incarcerated for failure to pay a debt in violation of the Texas Constitution.

STANDARD OF REVIEW

In a habeas corpus action, the guilt or innocence of the relator is not an issue. The only issue concerns the legality of the relator's detention. Ex parte Friedman, 808 S.W.2d 166, 168 (Tex.App.--El Paso 1991, orig. proceeding). For this Court to order the release of the relator, the trial court's order of commitment must be void, either because it was beyond the power of the court to enter or because it deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980); Ex parte Friedman, 808 S.W.2d at 168. The relator bears the burden of showing entitlement to relief in a habeas corpus proceeding. Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex.App.--Houston [1st Dist.] 1990, orig. proceeding).

STATUTORY AUTHORITY

Section 3.58 of the Texas Family Code allows the trial court to order the payment of reasonable interim attorney's fees. TEX.FAM.CODE ANN. § 3.58(c)(4) (Vernon 1993). Section 3.58(f) allows the trial court to punish by contempt the violation of any temporary order. Thus, it is clear that Relator can be punished by contempt for his violation of the trial court's temporary order requiring him to pay sums into the registry of the court for the payment of attorney's fees. The question remains, however, whether that punishment can take the form of imprisonment in light of Article I, Section 18 of the Texas Constitution.

ORDER CONSTITUTIONALLY PERMISSIBLE

While the constitution clearly prohibits imprisonment for debt, the courts have consistently recognized that obligations incurred for the support of children and spouses do not constitute a debt. The Texas Supreme Court recently reiterated the distinction between familial obligations and traditional third-party debts in Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993):

As a general rule, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period and until he complies with the order. See Ex parte Gorena, 595 S.W.2d 841 (Tex.1979); Ex parte Carey, 704 S.W.2d 13 (Tex.1986) (per curiam); TEX.GOV'T CODE Sec. 21.002; TEX.FAM.CODE Secs. 3.58(f) (temporary spousal support), 11.11(h) (temporary child support); 14.40 (child support orders). However, the failure to comply with an order to pay a 'debt' is not contempt punishable by imprisonment because of the prohibition of article I, section 18 of the Texas Constitution, which states: 'No person shall ever be imprisoned for debt.'

See Gorena, 595 S.W.2d at 845-46; Ex parte Yates, 387 S.W.2d 377, 380 (Tex.1965). Such an order may be enforced by other legal processes, such as execution or attachment of property, but not by imprisonment of the adjudicated debtor. The obligation which the law imposes on spouses to support one another and on parents to support their children is not considered a 'debt' within Article I, section 18, but a legal duty arising out of the status of the parties. See TEX.FAM.CODE Sec. 4.02; see also Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953, 954-56 (1936); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 49-50 (1931); Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 395-96 (1908). An order requiring temporary support payments is enforceable by contempt. TEX.FAM.CODE Secs. 3.58(f) (temporary spousal support), 11.11(h) (temporary child support).

Thus, an order of contempt arising from the failure to pay those obligations may be enforced by incarceration without running afoul of the constitutional prohibition.

Relator suggests that although the order is couched in terms of temporary spousal support, in reality it merely serves the purpose of paying a debt--the attorney's fees incurred by his wife. Implicit in this argument is the concept that the trial court may not do indirectly what it may not do directly. We disagree. It matters not whether the trial court awards alimony pendente lite to the wife in order to provide her sufficient funds with which to pay her attorney or whether the court orders, as temporary spousal support, that the monies will be paid directly to the attorney for the wife's benefit or into the registry of the court for disbursement upon application. In each instance, the wife is recouping the benefit of the support award. We note that other courts have recognized a distinction between ordering a spouse to pay a third-party debt and ordering the payment of the debt as temporary spousal support. See Ex parte Delcourt, 868 S.W.2d 373 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding); ...