Ex parte Pappas

• Decision Date: 29 December 1977
• Docket Number: No. 17060,17060
• Parties: Ex parte Lewis John PAPPAS, Relator. (1st Dist.)
• Court: Texas Court of Appeals

Page 865

562 S.W.2d 865

Ex parte Lewis John PAPPAS, Relator.

No. 17060.

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

Dec. 29, 1977.

Rehearing Denied March 9, 1978.

Boswell, O'Toole, Davis & Pickering, Martin J. Grimm, Houston, for appellant.

Keith A. Mullins, Houston, for appellee.

PEDEN, Justice.

Relator in this habeas corpus proceeding was found in contempt of court for failing to make child support payments. He asserts in his unsworn application that the support order in the divorce decree lacks specificity, that he was deprived of a statement of facts because the trial judge failed to provide a court reporter or obtain written waivers from the parties, and that after suspending the punishment for contempt, the court was required to afford him another hearing before committing him. The writ is denied.

Relator first complains of lack of specificity of the support order, relying on Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). In that case the decree stated that support was ordered for "three minor children until said children attain the age of eighteen years . . . ." The Supreme Court held:

"It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him."

Relator in the case at bar asserts that the child support order does not inform him of how and where to make the payments. The order states:

"It is further ORDERED by the Court that the Respondent shall pay the sum of ONE HUNDRED AND NO/100 ($100.00) DOLLARS per month to the Petitioner for the support and maintenance of said child, with the first of said payments of $100.00 to be made on or before the 1st day of December, 1972, and a like sum to be paid on or before the 1st day of each month thereafter until further Order of the court, or until said minor child attains the age of eighteen (18) years."

We do not find this order ambiguous. It identifies the payee and states the amount to be paid. Any difficulties encountered by the relator in locating his ex-wife do not render the order void.

Relator next contends that the trial court erred in failing to provide a court reporter since it obtained no written waiver of the parties. Relator relies on Smith v. Smith, 544 S.W.2d 121 (Tex.1976), which held: "if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be presented in no other way." The Smith case involved a petitioner who was neither present nor represented at the hearing on the merits. He showed that he had used due diligence in his attempt to procure a statement of facts.

Mr. Pappas was present at the hearing. A case more directly in point with the issue presented in our case is Bledsoe v. Black, 535 S.W.2d 795 (Tex.Civ.App.1976, no writ). Mr. Bledsoe contended, as does Mr. Pappas, that the trial court erred in failing to require a court reporter under Section 11.14(d) of the Texas Family Code.

" § 11.14(d) A record shall be made as in the civil cases generally unless waived by the parties with the consent of the court."

Article 2324 of Vernon's Texas Civil Statutes states the rule on court reporters in civil cases generally. It was amended, effective May 27, 1975, to provide for a court reporter only "upon request." The Bledsoe case held that this additional request requirement rendered the appellant's complaint invalid if he failed to show that he had objected or excepted to the absence of the court reporter or that a court reporter had been requested. Having failed to show a request or an objection, Mr. Pappas has waived this point.

Relator's final point is that since his punishment under the original contempt order was suspended for a period of time, he should have been given an additional hearing before being immediately committed to the custody of the sheriff. The contempt order finds relator in contempt and assesses the punishment which is then suspended upon the following terms:

"1. That Respondent LEWIS JOHN PAPPAS pay the sum of $5,400.00 arrearage in child support on or before October 11, 1977.

2. That Respondent pay the costs of this proceeding, to-wit: $38.00 to the District Clerk of Harris County, Texas, and $250.00 to Keith A. Mullins, attorney for Movant, by 9:00 A.M. on the 11th day of October, 1977.

IT IS FURTHER...