Ex parte King

• Decision Date: 27 November 1991
• Docket Number: No. B14-91-00338-CV,B14-91-00338-CV
• Citation: 819 S.W.2d 944
• Parties: Ex parte Timothy Keith KING, Relator. (14th Dist.)
• Court: Texas Court of Appeals

Page 944

819 S.W.2d 944

Ex parte Timothy Keith KING, Relator.

No. B14-91-00338-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 27, 1991.

Joseph Indelicato, Jr., Houston, for relator.

Bruce A. Baughman, Baytown, for respondent.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an original habeas corpus proceeding. Relator, Timothy Keith King, seeks relief from an order of contempt and commitment order entered by the 308th District Court of Harris County on October 11, 1990 in Cause No. 84-19541. We granted relator leave to file his petition and ordered the Sheriff of Harris County to release him on personal recognizance pending resolution of this cause. TEX.GOV'T CODE ANN. § 22.221(d) (Vernon 1988). The record before this court contained no statement of facts from the trial court's hearings on relator's motion for release for inability to purge himself of the trial court's order of contempt and commitment order. On October 3, 1991, we abated this cause to the trial court to conduct a hearing within 60 days to determine relator's present financial condition and his ability to discharge the contempt order. The trial court conducted a hearing on October 17, 1991 and relator failed to appear. We conclude that relator did not establish inability to pay as set out in the TEX.FAM.CODE ANN. § 14.40 (Vernon Supp.1991). We therefore deny his petition for writ of habeas corpus and order relator remanded to the custody of the Sheriff of Harris County.

Relator bases his request for a writ of habeas corpus on one point of error: that relator's confinement is illegal because relator lacks ability to pay the arrearage and thus cannot purge himself of contempt.

Divorce in this case was granted on June 8, 1984. On December 11, 1989, a contempt hearing was held, and a record of the statement of facts was made. Relator was found to be in contempt for failure to make the required child support payments in the amount of $275 per month as ordered by the 1984 divorce decree. Relator was fined $500 and ordered to jail to serve from day to day until he purged himself of $3,575 child support arrearage and court costs of $162. However, due to an agreed order, the jail time and fine were suspended and the court ordered relator to return January 31, 1990 for commitment if he had not paid $1,000 toward the arrearage of child support. On January 31, 1990, a record was made of this compliance hearing. Relator appeared and an indigency hearing was held and relator was found not to be indigent. The court at this hearing found that relator failed to comply with the court's order and that relator was able to pay the child support as ordered. The court sentenced relator to 180 days in the Harris County jail and to remain from day to day until he purged himself by paying $3,575 child support arrearage, attorney fees of $750 and cost of court in the amount of $162.

On July 26, 1990, relator was again brought to court after he completed serving his 180 days and was released on probation. Relator was ordered to appear on October 11, 1990, for a compliance hearing. On October 11, 1990, relator appeared, a record was made by the court reporter, and the court found that relator had not complied with the terms of his probation. His probation was revoked and he was placed in the Harris County jail for a term of day to day until he purged himself by paying $3,575 child support arrearage plus costs of court. On December 19, 1990, relator's motion for rehearing was heard by the court and denied. A record of the statement of facts of the hearing was made by the court reporter. On April 9, 1991, relator filed a motion for release which was heard on April 11, 1991 and denied. A record of the statement of facts was made by the court reporter. A motion for rehearing was filed the same day and also denied. Relator remained in jail until his release by personal recognizance upon filing this writ of habeas corpus on April 15, 1991.

In asserting the affirmative defense of inability to pay, relator has the burden to prove his inability to obey the order of the court by a preponderance of the evidence. TEX.FAM.CODE ANN. § 14.40(h) (Vernon Supp.1991); Contra Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967) (prior to Nov. 1, 1987 when TEX.FAM.CODE ANN. § 14.40 was amended, relator was required to prove evidence "conclusively established" inability to pay). This issue's existence does not arise unless evidence is admitted at his hearing supporting the defense. TEX.FAM.CODE ANN. § 14.40(h) ("The issue of the existence of an affirmative defense does not arise unless evidence is admitted supporting the defense.") (emphasis added); See also Ex parte Rohleder, supra, at 892. (relator required to show evidence "at the time of the contempt hearing"). There is no record before this court of evidence admitted by relator at his hearings, other than the fact he has been in jail, to raise the existence of this affirmative defense. Failing to find any statement of facts in the record from relator's last hearing before the court concerning his inability to pay on April 11, 1991, this court abated relator's proceeding to the trial court for a subsequent hearing and ordered that a statement of facts be made. A hearing was held on October 17, 1991 in which relator failed to appear. The only evidence now before this court is a conclusory affidavit, never admitted to the trial court, and the fact that relator has been incarcerated for failing to obey the court's divorce decree. The affidavit states:

"My name is Timothy Keith King.... I have no property which can be sold or mortgaged in order to obtain the amount necessary for my release. I have contacted friends and relatives, all have refused to loan me the necessary amount for my release. I have tried to borrow money from every source including financial institutions and my ex-employer all said attempts have been unsuccessful. I know of no other source from which the necessary amount can be obtained. I am not presently employed, due to the fact that I have been in jail for over 180 days."

Relator is required to prove by evidence presented to the trial court: (1) that the obligor lacked ability to provide support in the amount ordered, (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed, (3) attempted unsuccessfully to borrow the needed funds, and (4) knew of no source from which the money could have been borrowed or otherwise legally obtained. TEX.FAM.CODE ANN. § 14.40(g). We do not know what evidence relator presented at his hearing on April 11, 1991 as to each of these statutory requirements.

Relator argues based on Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976) that this court has authority to find that relator proved the statutory requirements for inability to pay based solely on the affidavit filed with his writ of habeas corpus to this court corroborated with the time he spent in jail. We disagree. In Ex parte Dustman, the Texas Supreme Court allowed duration of incarceration to be some corroboration of uncontradicted testimony. Id. at 410 (citing Ex parte Fiedler, 446 S.W.2d 698 (Tex.Civ.App.1969, no writ)). However, the court did not corroborate just the affidavit of inability to pay filed in the original proceeding...