Ex parte Pepper, 8783
| Decision Date | 13 December 1976 |
| Docket Number | No. 8783,8783 |
| Citation | 544 S.W.2d 836 |
| Parties | Ex parte Diana Lyn PEPPER and Tommy Pepper. |
| Court | Texas Court of Appeals |
Miller, Miller & Russell, Oth Miller, Amarillo, for relators.
Ochsner & Baughman, Frank J. Baughman, Amarillo, for respondents.
In this original habeas corpus proceeding, relators Diana Lyn Pepper and Tommy Pepper seek release from custody following a judgment of contempt for failure to comply with a visitation order entered prior to rendition of a final decree of adoption. The relators are ordered discharged for lack of a written order of commitment; and, furthermore, we hold that the visitation order became ineffective upon entry of the final decree of adoption.
All judicial proceedings were had in the Domestic Relations Court in and for Potter County, Texas. The duly certified records show that Jon Wayne Lamberson and Diana Lyn Lamberson, the natural parents of two minor children, were divorced on 24 May 1973, but there is no showing of any order respecting the children. Diana Lyn Lamberson married Tommy Pepper on 22 June 1973.
Thereafter, Tom Stanford and Jonnie Webb Lamberson, paternal grandparents of the minor children, moved the court to grant them reasonable visitation rights with the children. 1 By its order of 19 November 1974, the court granted the grandparents specific 'rights of Possessory Conservators.' 2
After the Peppers instituted an action to terminate the parent-child relationship between Jon Wayne Lamberson and the two children, the court ordered the parent-child relationship terminated as to the natural father on 24 October 1975. Diana Lyn Lamberson Pepper, the natural mother, was appointed managing conservator retaining 'all the rights, privileges, duties, and powers of a parent, subject to the rights, privileges, duties and powers of the possessory conservators previously appointed in this cause.'
As managing conservator of the children, Diana Lyn Lamberson Pepper filed a consent to their adoption by Tommy Pepper on 14 November 1975, and on the same day Tommy Pepper, joined by Diana Lyn Lamberson Pepper, filed an original petition for adoption of the two children. The paternal grandparents were personally served with notice of the proceedings. On 14 January 1976, the court, being satisfied that requirements for adoption were met and finding that the adoption was in the best interest of the children, granted a decree of adoption. The decree ordered that the parent-child relationship shall exist between Tommy Pepper and the two minor children and changed the legal names of the children. Other than containing a finding that there had been a decree terminating the parent-child relationship as to the natural father, the decree of adoption is silent as to any prior decrees or orders.
Subsequent to the rendition of the adoption decree, Tommy Pepper on 12 March 1976 and Diana Lyn Pepper on 11 June 1976 denied the paternal grandparents' requests for access to and possession of the children pursuant to the 19 November 1974 order. The grandparents then filed their motion for contempt. After hearings thereon, one of which was on 10 September 1976, the court entered on 29 September 1976 its judgment adjudging the Peppers guilty of contempt. The Peppers were each fined the sum of $125 and ordered confined in the Potter County jail for a period of seventy-two hours and until the fine of $125 was paid, said confinement to be suspended on payment by each of the $125 fine into the registry of the court on or before 1 October 1976 at 2 P.M.
On 15 October 1976, the Peppers were taken into custody of the Sheriff of Potter County 'pursuant to that certain order dated September 10, 1976, (sic) issued by the Hon. Carl Periman, Judge of the Domestic Relations Court of Potter County, Texas.' The Peppers were released on personal recognizance bonds pending disposition of their application for writ of habeas corpus.
The record we review does not disclose any written order of commitment. It is established that a written order of commitment, which is the warrant, order or process by which a court directs a ministerial officer to take a person to jail and to detain him there, is an essential prerequisite to the imprisonment of a person for contempt. Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (1959) . And a person may not be imprisoned for contempt without a written order of commitment. Ex parte Martinez, 160 Tex. 328, 331 S.W.2d 209,...
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