Ex parte Loftin, 847
| Decision Date | 03 April 1975 |
| Docket Number | No. 847,847 |
| Citation | 522 S.W.2d 591 |
| Parties | Ex parte C. W. LOFTIN. |
| Court | Texas Court of Appeals |
Fenley, Bate & Newman, Kelly L. Newman, Lufkin, for relator.
L. Michael Thompson, Tyler, for respondent.
This is a habeas corpus proceeding whereby Relator seeks to be discharged from confinement in the Smith County jail by virtue of a certain county order of the Judge of the Court of Domestic Relations of Smith County, Texas.
On January 8, 1975, in a divorce suit still pending in the Court of Domestic Relations in Smith County, Relator was ordered to make child support payments for his two minor children in the amount of $330.00 per month with the first payment being payable on January 15, 1975, and a like payment being payable on the 15th day of each month thereafter.
On February 11, 1975, Relator being in arrears on the payments, was cited, upon the complaint of his wife, to 'show cause why he should not be held in contempt.' The matter was heard by the trial court on March 11, 1975. After hearing the evidence the trial court adjudged Relator in contempt for failure to make the January and February child support in the amount of $660.00. The trial court's judgment directed that Relator be committed to the Sheriff of Smith County for confinement until Relator purged himself of contempt by paying $660.00 in the registry of the court due as child support as set forth in the January 8th order, and the further sum of $150.00 as attorney's fees for the services of his wife's attorney. Relator was confined to jail on March 11, 1975. On March 14, 1975, this court issued its writ of habeas corpus and fixed the amount of the bond required by Relator at $1,000.00. The same date Relator furnished bond and was released from custody.
We granted the writ of habeas corpus primarily upon Relator's representation that he was involuntarily unable to pay the amount ordered by the court.
Relator urges by his first point of error that the judgment of January 8th ordering him to make monthly child support payments is void in that it violates his right of procedural due process. While he acknowledges that he was duly served with notice of the hearing and failed to answer or appear, he contends that procedural due process requires that he be given notice of the judgment. He takes the position that since he was not given notice of the terms of the judgment ordering him to pay child support, he was denied due process and that the judgment is therefore invalid. We overrule the contention.
The notice essential to due process is original notice giving jurisdiction. After jurisdiction has attached, a party to the suit has no constitutional right to demand notice of the judgment entered by the court. 16A C.J.S. Constitutional Law § 619, p. 803; State v. National Bank of Cleburne, 116 Tex. 214, 288 S.W. 435 (Tex.Com.App., 1926). Having notice of his wife's application for an order for child support, Relator must be held to have had constructive notice of the judgment of January 8th setting the child support payment.
By his second point Relator urges that the judgment on March 11, 1975, holding him in contempt and ordering him to jail is void because the evidence taken at the contempt hearing shows that he was involuntarily unable to pay the amount ordered for child support and had no means of raising the funds necessary to purge himself of contempt. The point is without merit and is overruled.
We recognize that the power to administer punishment which is tantamount to life imprisonment cannot be exercised by the courts where it is not within the power of a person to perform. Ex parte Rohleder, 424 S.W.2d 891 (Tex.Sup.1967); Ex parte Ramzy, 424 S.W.2d 220 (Tex.Sup.1968).
The habeas corpus power of this court does not extend to the determination of fact issues. Ex parte Reid (Ex parte Lytle), 99 Tex. 405, 89 S.W. 956 (1905); Ex parte Olson, 111 Tex. 601, 243 S.W. 773 (1922). An original habeas corpus proceeding in this court is a collateral attack on the contempt decree entered by the trial court. Whether a person can or cannot perform as ordered by a court becomes a question of law only in those instances when, from an examination of the evidence, reasonable minds cannot differ as to the conclusion that he cannot perform as ordered. It is only when the proof adduced at the hearing establishes the controlling issue--in this case, Relator's inability to comply with the court's order, as a...
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