Ex parte Kollenborn, A-4873
| Decision Date | 09 March 1955 |
| Docket Number | No. A-4873,A-4873 |
| Citation | 154 Tex. 223,276 S.W.2d 251 |
| Parties | Ex parte Byron G. KOLLENBORN. |
| Court | Texas Supreme Court |
James L. Mitchell, Dallas, for relator.
Dee Brown Walker, Dallas, for respondent Kay Kollenborn.
This is an original habeas corpus proceeding. The brief of the relator, Byron G. Kollenborn, presents the one point that the evidence shows inability to comply with the order sought to be enforced.
Relator filed in the Juvenile Court of Dallas County suit against his wife, Kay Kollenborn, for divorce and for custody of two children born to their marriage. On November 26, 1953, the court heard and overruled relator's motion for temporary custody of the children, and directed relator to pay the wife temporary alimony of $400 per month. The relator made payments of $400 each in December and January. The trial on the merits resulted in a judgment dated January 25, 1954, denying relator a divorce, granting a divorce to the wife on her cross-action, awarding custody of the children to the wife and ordering relator to pay $150 per month for the support of the children. The judgment also directed the relator, in the event of an appeal, to pay to the wife as temporary child support and temporary alimony pending the final disposition of the case, $400 per month beginning February 1, 1954. The relator filed a supersedeas bond and perfected his appeal to the Court of Civil Appeals at Dallas, where the main case was pending on appeal at all times material to the proceedings mentioned below.
On May 11, 1954, after a hearing in the trial court, the relator was adjudged in contempt and ordered confined until he purged himself by payment of $400. Application was made to this court for a writ of habeas corpus, and upon final determination relator was remanded to custody of the sheriff. Ex parte Kollenborn, Tex., 269 S.W.2d 339. Thereafter and prior to the hearing and order which are now under attack, the relator paid the $400 required by the previous contempt order and two additional payments of $150 each.
On July 16, 1954, the wife filed in the trial court her motion to hold relator in contempt for failure to pay the $1,700 balance remaining unpaid for the months of February through July. In the same motion it was alleged that relator is employed by Westinghouse Electric Corporation at a salary of $850 per month and that Westinghouse should be required during the pendency of the case to withhold $400 each month from relator's salary and either pay such amount to the Juvenile Court, or hold the same in trust, for the wife. Notice to show cause was issued to relator and to Westinghouse, and the latter withheld $400 from the monthly salary payable to relator on August 1. On August 13, 1954, the trial court heard the evidence and entered its order adjudging the relator in contempt, assessing a fine of $100 and confinement in jail for seventy-two hours, and directing that he thereafter be confined until he has purged himself of contempt by payment of $1,000 for the support of his wife and children. The wife's motion as it related to Westinghouse was taken under advisement by the trial judge, who stated that if relator would agree to release to his wife and children the $400 withheld by Westinghouse, he would receive credit therefor. Writ of attachment was issued and relator was taken into custody. He thereupon applied to this court for a writ of habeas corpus, and we ordered him released on bond pending a determination of the validity of the order of commitment.
The testimony of the relator and a stub from his monthly pay check constitute the evidence offered at the hearing with respect to his ability to make the payments required by the judgment and the contempt order. The relator testified that: he is employed by Westinghouse at a gross salary of $850 per month; Westinghouse normally withholds from his monthly check a total of $194, of which $58 is for the purchase of Westinghouse stock; an additional $400 was withheld from his August 1 check; his present family consists of himself, his housekeeper and two children by a former marriage; his fixed monthly expenses, which he itemized as set out below, aggregate $536.90 exclusive of the payments required for temporary alimony and child support; he has $27 in cash and $94 in the bank; he owes current bills aggregating $239, which he is unable to pay because the $400 was withheld by Westinghouse; he owes $3,150 to banks of which $800 was...
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Catlett v. Catlett, 40887
...contempt action. Ex Parte Steinhauser, 133 Tex.Cr.R. 166, 109 S.W.2d 485; Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184; Ex Parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251. In the last cited case, for example, the former husband, who was in arrears to the extent of $1700 in his child support ......
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Topletz v. Skinner
...considered an affirmative defense that the potential contemnor bears the burden of proving. Id. at 261 (citing Ex parte Kollenborn , 154 Tex. 223, 276 S.W.2d 251, 253–54 (1955) ). As a threshold issue, Topletz argues and the district court found that the state court was required to find tha......
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...been willful if the failure to comply was involuntary. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967); Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251, 253-54 (1955). Although the inability to comply defense technically rebuts the willfulness element of contempt liability, the rela......
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