Ex parte Payne

• Decision Date: 15 January 1980
• Docket Number: No. 8754,8754
• Parties: Ex parte Thomas Dale PAYNE. Original Habeas Corpus Proceeding.
• Court: Texas Court of Appeals

Page 312

598 S.W.2d 312

Ex parte Thomas Dale PAYNE.

Original Habeas Corpus Proceeding.

No. 8754.

Court of Civil Appeals of Texas, Texarkana.

Jan. 15, 1980.

Rehearing Denied March 26, 1980.

David J. Potter, Potter & Potter, Texarkana, for appellant.

Errol Friedman, Friedman & Hooper, Texarkana, for appellee.

RAY, Justice.

This is a habeas corpus proceeding. Relator, Thomas Dale Payne, seeks relief from commitment to the Bowie County Jail for contempt growing out of his failure to make child support payments.

On September 28, 1965, a divorce decree was entered dissolving the marriage of Thomas Dale Payne and Janie Payne. The judgment provided that Janie Payne was to have custody of the minor child, Lesa Payne, and ordered relator to ". . . pay the sum of Twenty and No/100 ($20.00) Dollars per week for the support and maintenance of the minor child until such child becomes eighteen years of age."

Janie Payne filed her motion for contempt and other relief on March 12, 1979, seeking to have relator held in contempt for failure to make child support payments, and seeking to increase the child support. The first hearing was held on April 19, 1979.

FACTS

The record reveals that shortly after the September 1965 divorce, relator entered the armed forces. During this period of time support allotments were made monthly in the sum of $86.00, but the allotments were terminated in April of 1969 when relator was separated from military service. Relator returned to Texarkana in August of 1969, and shortly thereafter executed, at the urging of Janie, a document which purported to be a child care and custody agreement. The unenforceable agreement attempted to release and relieve the relator of any continuing obligation to make further child support payments in consideration for which relator released and relinquished all parental rights.

The testimony was conflicting as to when relator first defaulted in child support payments and as to the amount of delinquent support payments at the time of the first hearing. It was undisputed that from May 13, 1978, through April 4, 1979, the relator made payments or gifts to his former wife for the benefit of his daughter. The testimony of both parties revealed that Janie Payne had requested assistance from the relator which he willingly provided. At the conclusion of the hearing on April 19, 1979, the trial court entered a commitment order and also an order granting modification of ". . . it is HEREBY ORDERED, ADJUDGED and DECREED that the previous Order of this Court by (sic) modified such that the Respondent (relator) should, and is hereby released from custody upon payment of $1,000.00 into the Registry of this Court to be applied to the arrearage adjudged by the Court. The balance to be paid on or before 19 April, 1980, with commitment to be withheld pending compliance with this Order and the Order Granting Modification of Decree."

the support decree. Relator was found in contempt of court for failure to pay an arrearage in the sum of $5,257.00. The court gave relator credit for the military allotment payments and the other payments made from May 13, 1978, through April 4, 1979. Commitment was fixed by confinement in the county jail until relator purged himself by paying the arrearage and court costs. However, on the same day, a second order was signed and entered by the trial court which provided the following:

Pursuant to this second order, the relator tendered a check in the sum of $1,000.00 and was released from confinement. By letter dated May 3, 1979, the relator's attorney designated a record to be prepared for the purpose of having the court's contempt order reviewed in the Court of Civil Appeals. At the April 19, 1979 hearing, the relator communicated to the court his intention to "appeal" the contempt and commitment order.

On May 15, 1979, the court, on its own motion, held a hearing to decide if the April 19th order should be withdrawn. A review of the May 15, 1979 hearing reveals that the trial court entered the April 19th order permitting the relator to purge himself of contempt by making the $1,000.00 payment, because the court understood that both parties had agreed to the order; that the court subsequently discovered that Mr. Payne desired to "appeal" the order; and that the court entered the order "based upon erroneous information presented to the court." The trial judge stated:

"I had understood that he was remorseful and that he wished to pay off his just debt, instead of that, he wishes not to pay it off and to frustrate the purpose of this Court, not that I wish to deny anyone the appellate rights, but I don't wish them to deny this Court its enforcement powers in contempt matters, . . .

"The other matter, I believe we will also postpone that (sic) day, the Court feels that you have misrepresented certain matters in obtaining the entry of this order, . . . and further, I am disturbed by the fact that you have not presented your client to the jurisdiction of the Court, however, all I can do is accept your statement made in that regard, but I will wish to take up both of these matters . . . the matter of your client's contempt, which by this order that I'll enter, I find him in contempt; and assess punishment, and then I would like to take up further your conduct insofar as it relates to this Court at that time."

These remarks were directed to relator's counsel.

Pursuant to this hearing, an order was entered on May 17, 1979, wherein the court set aside the last order entered on April 19, 1979, together with all pronouncements from the bench, and ordered a new trial to be held on June 1, 1979.

At the June 1, 1979 hearing, evidence was admitted to show that during the period of time from May 13, 1978, through April 4, 1979, Payne forwarded sums to his former wife or directly paid bills for the support of their child totaling $4,353.57. Relator testified that he presently had a total of between $500.00 and $600.00 in his checking and savings accounts, but that his net taxable income for 1979 would probably be $20,000.00. At the conclusion of the hearing, a new commitment order was signed and entered which found relator in contempt of court for failure to comply with the 1965 decree, and found the arrearage to be $4,257.00. The court's June 1 order raised the child support from $20.00 per week to $200.00 per month and also provided the following "IT IS THEREFORE, by the Court, ORDERED AND DECREED that Thomas Dale Payne, Respondent, be and is held in contempt of this Court. Commitment shall be fixed at a fine of $25.00 and confinement in the County Jail for 10 days and thereafter until Respondent has partially purged himself of contempt by payment of $1,000.00 of the arrearage of $4,257.00 plus court costs and the $25.00 fine."

At no time between April 19, 1979, and June 1, 1979, was the $1,000.00 payment, made on April 19th, refunded. It is clear from reviewing the April and June orders that the trial judge simply applied this $1,000.00 to lower the arrearage from $5,257.00 to $4,257.00.

ISSUES

Relator suggests that the trial court's orders are void for the following reasons:

1. The June 1, 1979, contempt order is void because it places relator in double jeopardy since he had previously purged himself of contempt by complying with the order entered on April 19, 1979.

2. The court's order of June 1, 1979, was void for lack of due process.

3. The child support provision of the 1965 divorce decree was ambiguous, vague and uncertain.

4. The contempt orders were void because the doctrines of laches and estoppel were applicable.

5. The four year statute of limitations, Article 5529, Tex.Rev.Civ.Stat.Ann., applies and thus the trial court was without jurisdiction to adjudicate relator in contempt for payments barred by limitations.

6. The June 1, 1979, order was void because it was impossible for relator to perform.

7. The court's orders were void because imprisonment for failure to make child support payments is in violation of Article I, § 18 of the Texas Constitution prohibiting imprisonment for debts.

DOUBLE JEOPARDY FIFTH AMENDMENT

On April 19, 1979, the trial court found relator in contempt but stated that he could purge himself by the payment of $1,000.00 to be applied to the support arrearage and that the balance of the arrearage could be paid on or before April 19, 1980. Relator purged himself by paying the $1,000.00. The record does not reflect nor does the trial court find that relator committed any new act of contempt between April 19, 1979, and June 1, 1979. The trial court, however, on June 1, again found relator in contempt and increased his punishment by assessing a fine of $25.00, confinement in the county jail for ten days and an additional payment of $1,000.00 of the arrearage. We have reviewed the trial court's orders and find that the order entered on June 1, 1979, is void because it violates the double jeopardy clause of the fifth amendment to the United States Constitution. The trial court has no authority to hold a person in contempt a second time for the same offense when the relator has purged himself of the original contempt and no new acts of contempt have occurred in the intervening time. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); 168 A.L.R. 706 (1947); Ex Parte Brown, 574 S.W.2d 618 (Tex.Civ.App. Waco 1978, no writ).

DUE PROCESS FOURTEENTH AMENDMENT

Contempt proceedings are generally criminal in nature whether they grow out of criminal or civil actions. It follows that the proceedings should conform as nearly as practicable to those in criminal cases. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); Ex Parte Brown, supra; Ex Parte Wright, 538 S.W.2d 483 (Tex.Civ.App. Beaumont 1976, no writ). The constitutional guaranty against multiple punishments provided by the double jeopardy clause of the fifth amendment to the U.S. Constitution, applicable to the states through the ...