Ex parte Preston

• Decision Date: 29 June 1961
• Docket Number: No. A-8372,A-8372
• Citation: 347 S.W.2d 938,162 Tex. 379
• Parties: Ex parte William C. PRESTON, Jr.
• Court: Texas Supreme Court

Page 938

347 S.W.2d 938

162 Tex. 379

Ex parte William C. PRESTON, Jr.

No. A-8372.

Supreme Court of Texas.

June 29, 1961.

Elton M. Hyder, Fort Worth, for relator.

Wade, Davis, Callaway & Marshall, Fort Worth, for respondent.

CULVER, Justice.

Relator, William C. Preston, Jr., applies here for a writ of habeas corpus from an order of confinement entered by the judge of the 153rd District Court of Tarrant County, Texas. The relator's wife filed for divorce and division of the community property. A temporary order restraining Preston from disposing of any community assets was issued, but prior to the service of this order he had sold certain real estate alleged to belong to the community for the sum of $21,705.58.

After due notice and hearing a temporary injunction was issued by the court on the 2nd day of March, 1961, by the terms of which Preston was restrained from in any manner disposing of any of the community assets and further ordered him to pay into the registry of the court the $21,000, the proceeds from the sale of the community property, on or before March 9, 1961, the court having found that Preston had in his possession the $21,000, notwithstanding his testimony that he had flushed this entire sum in the form of $100 bills down a commode and into the sewer system of the City of Fort Worth.

On the 9th day of March Preston as ordered, appeared before the court and having failed to produce the $21,000 or any part thereof, the court entered the following order:

'It Is Therefore Ordered by the court that the said defendant, William C. Preston, Jr., be and he is hereby held in contempt of court with relation to the matters referred to above, but consideration and determination of what action the court shall take in connection with said contempt is hereby deferred until hearing of this case upon its merits, which hearing is set for April 3, 1961.'

On the 17th day of April, 1961, a judgment was entered granting Mrs. Preston a divorce and dividing the community property, awarding to Mrs. Preston certain household and personal property, including an automobile and 'the sum of $10,000.00 in cash, which the court hereby ordered the defendant to produce as hereinafter set forth.' There was awarded to Preston 'all personal property now in his possession except that which is hereinabove awarded to the plaintiff.'

As provided in his order of the 9th day of March the court then proceeded to a determination of the punishment to be inflicted upon Preston for his contempt of court in failing to pay over the money into the registry of the court. This order incorporated in the divorce decree reads as follows:

'It Is Further Ordered, that the defendant be and he is hereby ordered committed to the Tarrant County Jail of Tarrant County, Texas, for his failure to comply with the order of this Court heretofore entered that he produce the sum of $21,000.00 before this Court on or before March 9th, 1961, at 10:00 A.M., all as set forth in this Court's judgment of contempt signed and entered by this Court on March 28th, 1961, and to be there held and confined for a period of three full days of twenty-four hours each, and thereafter to be held and confined until he shall have produced and delivered to the Clerk of this Court, for the use and benefit of the plaintiff, the said sum of $10,000.00, whereupon he shall have purged himself of contempt of this Court, The Sheriff or any constable of Tarrant County, Texas is hereby ordered and directed to seize the person of the said William C. Preston, Jr., and to so hold and confine him in said jail for the periods and time hereinabove set out.'

Preston takes the position that the original order directing him to pay the $21,000 into the registry of the court is void for the reason that, while conceding that the court has authority to impound property pending final action, he does not have that authority if the property is in the form of money. He makes the distinction between money and all other kinds of property though no authorities are offered for that theory. We think the contention is without merit. We note that in Dyer v Dyer, Tex.Civ.App., 87 S.W.2d 489, a divorce suit, the trial judge was held properly to have ordered the husband's employer to retain in its possession a portion of his weekly salary subject to the further orders of the court.

Preston further contends that the judgment finding him in contempt and ordering him to be confined until he shall have delivered the sum of $10,000 to the Clerk for the use and benefit of his wife is void for two reasons: First, that the only punishment assessed for the failure to pay over the $21,000 to the registry of the court is three days in jail and that the three days have been served; that the order to pay over to the Clerk the sum of $10,000 is separate and independent from the original order to pay over $21,000; secondly, that the award of $10,000 to the wife constitutes a debt that cannot be collected by contempt proceedings for this would constitute imprisonment for debt in violation of Art. 1, § 18 of the Texas Constitution, Vernon's Ann.St. We disagree with both of these contentions.

The only purpose in ordering Preston originally to pay over the $21,000 to the Clerk was so that the court would have possession and control over the community property in order to carry out his duty to make a division between the parties. The court deferred assessing punishment until the final hearing and having made the division no purpose would be served in compelling Preston to pay over the $21,000 except that part awarded to Mrs. Preston as her community share. It would have been idle to remand him to jail until he produced the entire $21,000 and then pay back to him $11,000. The order cannot be construed as an attempt to punish him for two different offenses. The relator cannot complain because he was punished for delivering less than he was ordered to deliver originally.

The award of $10,000 to the wife in the division of the community property is not a debt in the ordinary sense owing by the husband in contemplation of the constitutional inhibition. He has in his possession $21,000 of community property, $10,000 of which has been awarded to the wife, and which Preston has been ordered to pay not to her but into the hands of the court.

Article 4638, Vernon's Ann.Civ.Stat., provides:

'The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.'

The district court possesses broad powers under this statute in making an adjudgment of property rights between the parties, but only if a divorce is granted. Milligan v. Milligan, Tex.Civ.App., 282 S.W.2d 127; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Ex parte Scott, 133 Tex. 1, 126 S.W.2d 626; Harkness v. Harkness, Tex.Civ.App., 1 S.W.2d 399; Carter v. Carter, Tex.Civ.App., 336 S.W.2d 466; Christie v. Tipps, Tex.Civ.App., 279 S.W.2d 142. It is pertinent to inquire how the court can order and bring about a division of the community estate unless that estate be first subjected to the court's control. To say that a husband who, by law is given the right of control and disposition of the community estate, can reduce that estate to cash and not be compelled to account for that money in a division of the community property would run contrary to the intent and purpose of the statute. Preston is not a debtor of his wife but rather he is constructively a trustee in holding the community assets and particularly in so far as the share is concerned that has been awarded to her by the court. There is no question, we think, about the right of the court to hold a trustee in contempt of court for willfully refusing to obey an order to pay over funds held in his hands to the one rightfully entitled thereto. Tegtmeyer v. Tegtmeyer, 292 Ill.App. 434, 11 N.E.2d 657, later appealed 306 Ill.App. 169, 28 N.E.2d 303; Caswell v. Bathrick, 54 R.I. 30, 169 A. 321; Potter v. Emerson-Steuben Corp., 251 App.Div. 841, 296 N.Y.S. 684; Com. ex rel. Di Giacomo v. Heston, 292 Pa. 63, 140 A. 533. Contempt proceedings have even been held proper where an attorney has refused to pay over funds received from the sale of his client's property. Smith v. Lapeer Circuit Judge, 251 Mich. 126, 230 N.W. 905.

The courts of this state have long since put to rest the contention that a husband and father may not be imprisoned for failure to pay alimony or child support and yet these matters seem much more closely related to the ordinary definition of debt than is an order of community division. In the matter of alimony or child support the court orders the person to pay over money belonging to him.

In Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 396, 17 L.R.A.,N.S., 1140, in holding that the wife's claim for support of herself and child pendente lite was not a debt within the constitutional provision prohibiting imprisonment for debt, the court said:

'* * * The Constitution of this state does not prohibit the imprisonment of a man except for the collection of a debt, and the proceeding in this case, being for the enforcement of a duty, natural and legal, due from Davis to his wife and children, all of whom were subject to the jurisdiction of the court, does not come within the prohibition of the Constitution.'

In our case the order is directed to Preston that he pay over money in his possession that rightfully belongs not to him but to his wife. The judgment of divorce does not purport to decree that Preston is indebted to his wife. It makes the division of the property and directs him to pay over to the Clerk that portion that the court awards to her.

In Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224, 226, while the relator was...