Ex parte Lee, 17197

• Decision Date: 15 June 1978
• Docket Number: No. 17197,17197
• Parties: Ex parte Robert E. LEE. (1st Dist.)
• Court: Texas Court of Appeals

Page 689

568 S.W.2d 689

Ex parte Robert E. LEE.

No. 17197.

Court of Civil Appeals of Texas,Houston (1st Dist.).

June 15, 1978.

Rehearing Granted July 13, 1978.

James M. Beauchamp, Houston, for appellant.

Roger B. Williams, Houston, for appellee.

PEDEN, Justice.

Robert E. Lee filed this application for writ of habeas corpus seeking release from a commitment for failure to make child support payments. A judgment signed on March 29, 1978 provided that he be confined for five days and thereafter until he paid, through the county support section, the arrearage of $825 plus an attorney's fee of $370 and costs, but enforcement of the order was suspended on condition that he pay $500 on the arrearage, pay the attorney's fee and costs by April 15, and appear before the court at 9 A.M. on April 17, 1978. After a hearing on April 17, the trial judge ordered the relator committed. He contends that the pleading filed by his wife will not support the court's action, that no evidence was produced at the commitment hearing, and that the commitment order does not require that he be confined to jail for more than five days. We order the relator released after he has served the five-day sentence.

The pleading filed by Mrs. Lee was a sworn "Statement of Claimant for Child Support under Rule 308-A." In it she stated that she was filing it under Rule 308-A, quoted at length the support provision of the trial court's previous order and further alleged that:

II.

"Robert E. Lee, Respondent, who is the person ordered to make the payments described above, has willfully disobeyed the order by failing to make the following payments as ordered.

"Respondent was ordered to pay the sum of $150.00 per month in child support from October 1, 1977, until further Order of the Court. During that period, Respondent paid nothing and is in arrearage $525.00 as of January 1, 1978. Respondent has willfully disobeyed the order of this Court.

III.

"The children for whom the payments were ordered have not reached the age of 18 years, and the order referred to above has not been in any way altered, changed, or amended."

Relator's first contention is that the complaint filed by Mrs. Lee merely states facts to the court for the purpose of having an attorney appointed, does not ask the court to do anything, and will not support the court's actions.

Rule 308-A of Texas Rules of Civil Procedure states:

"In cases where the court has ordered periodical payments for the support of a child or children, as provided in the statutes relating to divorce, and it is claimed that such order has been disobeyed, the person claiming that such disobedience has occurred shall make same known to the judge of the court ordering such payments. Such judge may thereupon appoint a member of the bar of his court to advise with and represent said claimant. It shall be the duty of said attorney, if he shall in good faith believe that said order has been contemptuously disobeyed, to file with the clerk of said court a written statement, verified by the affidavit of said claimant, describing such claimed disobedience . . . No further written pleadings shall be required . . ."

Counsel for Mrs. Lee concedes that it would have been better to have prayed for specific relief, but the rule simply requires a written statement verified by the claimant's affidavit describing the claimed disobedience and it specifically states that no further written pleadings are required. Relator appeared in response to an order to appear and show cause why he should not be held in contempt for willfully disobeying the court's order as shown in Mrs. Lee's statement. He has not shown that he was denied due process or otherwise prejudiced by a failure to receive more complete notification of the subject matter of the cause, nor has he shown that Mrs. Lee's statement was in any way inadequate. See Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969).

The relator next contends that the commitment was illegal because at the hearing on April 17 "there was no evidence produced nor a hearing held to hear evidence to determine whether he had failed to comply with the order . . . of March 21, 1978 . . ."

Where one has been found in contempt for violation of a court order but his punishment has been suspended on condition of compliance, the court must afford him a subsequent hearing to determine breach of the condition and must issue an unconditional order of commitment. Ex parte Sauser, 554 S.W.2d 239 (Tex.Civ.App.1977, no writ); Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.1975, no writ). In both of those cases the requirements of due process had presumably been met at the time of the original order but the relator's punishment was...