Ex parte Ramon, 04-91-00624-CV

• Decision Date: 18 December 1991
• Docket Number: No. 04-91-00624-CV,04-91-00624-CV
• Citation: 821 S.W.2d 711
• Parties: Ex parte Roberto A. RAMON, Relator.
• Court: Texas Court of Appeals

Page 711

821 S.W.2d 711

Ex parte Roberto A. RAMON, Relator.

No. 04-91-00624-CV.

Court of Appeals of Texas San Antonio.

Dec. 18, 1991.

Adam Gardenas, Jr., San Antonio, for relator.

Ernest G. Valdez, San Antonio, for appellee.

Before BUTTS, CHAPA and PEEPLES, JJ.

ON RELATOR'S APPLICATION FOR WRIT OF HABEAS CORPUS

CHAPA, Justice.

This application for writ of habeas corpus arises from an order following a motion for contempt filed by Jo Ann Cantu against her ex-husband and the relator herein, Roberto A. Ramon, for his failure to make child support payments in accordance with the terms of their divorce decree entered on April 23, 1986, pursuant to which he was obligated to pay child support payments of $350.00 per month. On October 15, 1991, a hearing on the motion was conducted, and relator was held in contempt of court for failure to make payments for the support of his minor child. From the date of the hearing on the contempt motion until November 21, 1991, when he was released on bond of $1,000.00 pending oral argument on his application for writ of habeas corpus, relator has been confined in the Bexar County Adult Detention Center.

The order at issue cited relator's failure to make the monthly child support payments and found relator guilty of contempt of court in failing and refusing to make such payments, with an arrearage on the date of the hearing in the amount of $22,338.00. While no fine was imposed for the contempt of court, the trial court:

further ordered that [relator] be committed to the Bexar County Jail for a period of six (6) months and for such time thereafter until the sum of $22,338.00 is fully paid....

The order further commanded that the Sheriff of Bexar County arrest relator and confine him in the jail "for a period of six (6) months and until he pay the sum of $22,338.00 in child support arrears."

In three points of error, relator contends in this habeas corpus proceeding that the judgment of contempt and the commitment order are void because:

(1) relator demonstrated an inability to pay the child support arrearage at the hearing on the motion for contempt;

(2) the order confines relator for the balance of his natural life; and

(3) relator was not accorded his constitutional substantive and procedural rights under the United States and Texas Constitutions, in that he was denied the opportunity at the hearing to present an expert witness in his defense relating to his inability to pay.

It is significant that there is no specific challenge by relator to the punitive assessment by the trial court of six months of confinement for his past failure to pay child support pursuant to the divorce decree. The thrust of the challenge in this proceeding is in the relator's claim that the period of confinement is open-ended, in that he cannot purge himself of a portion of the contempt order unless he satisfies the child support arrearage in the amount of $22,338.00, and that his inability to pay the arrearage is tantamount to a sentence of confinement for the remainder of his natural life.

A writ of habeas corpus is a collateral attack on the trial court's order, and it is relator's burden to demonstrate the impossibility of his performance and that the order is void. See Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 (1947); see also Ex parte Dean, 517 S.W.2d 365 (Tex.Civ.App.--Houston [1st Dist.] 1974, orig. proceeding). Therefore, the testimony adduced at the contempt hearing must be examined to determine if relator has discharged his burden to prove that he could not pay the child support as ordered. Ex parte Papageorgiou, 685 S.W.2d 776, 778 (Tex.App.--Houston [1st Dist.] 1985, orig. proceeding).

The contempt order before us is both a criminal (or punitive) contempt because it imposes confinement for past violations, and a civil (or coercive) contempt, in that it provides for further confinement until relator purges himself by paying the arrearage. For this court to hold the criminal portion of the order invalid, relator must conclusively establish his inability to pay each child support payment as it accrued. Id. at 778; Ex parte Cummings, 610 S.W.2d 238, 240 (Tex.Civ.App.--Amarillo 1980, orig. proceeding). If he fails to carry that burden as to even one delinquent payment, the criminal contempt judgment is not void. Ex parte Raymer, 644 S.W.2d 889, 890 (Tex.App.--Amarillo 1982, orig. proceeding); see Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956).

For this court to hold the civil portion of the order invalid, relator must conclusively establish that he is unable to pay the delinquency at the time of the contempt hearing, and that he has no source from which he might be expected to obtain the money to discharge the arrearage. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967); see generally Ex parte Dustman, 538 S.W.2d 409 (Tex.1976) (relator may not be confined indefinitely for contempt when he cannot perform the necessary act to purge himself). The relator must show without substantial contradiction in the record that he was unable at the time of the hearing to do the act required by the judgment as a condition for release from custody. Ex parte Deckert, 559 S.W.2d 847, 850 (Tex.Civ.App.--Houston [1st Dist.] 1977, orig. proceeding).

We note initially that the order at issue provides that relator shall serve six months in confinement and, "for such time thereafter" until the delinquent child support arrearage is fully paid. A reading of the plain conjunctive language of the order demonstrates that even if relator were to now pay the child support arrearage in full, he would still be required to serve the six months of confinement in the Bexar County Jail for his contempt of the divorce decree in which the child support obligation was originally created.

Except for three incomplete child support payments totaling $412.00, which were made in the three months immediately following the divorce, relator has not made a single child support payment since June, 1986. Section 14.053 of the Texas Family Code provides, in part, that the child support order shall be based on the "net resources" of the obligor and the obligee, which shall be considered together with other factors listed in the guidelines for child support in the Code. "Net resources," for the purpose of determining child support liability, includes, in part, all wage and salary income and other compensation for personal services; unemployment benefits; and disability and workers' compensation benefits. TEX.FAM.CODE ANN. § 14.053(a), (b) (Vernon Supp.1991). Additionally, section 14.40(g) of the Code provides that it is an affirmative defense to an allegation of contempt of court that the obligor lacked the ability to provide support in the amount ordered, "lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed, attempted unsuccessfully to borrow the needed funds, and knew of no source from which the money could have been borrowed or otherwise legally obtained." Section 14.40(h) requires that if the issue of the existence of an affirmative defense arises, the obligor must prove the defense by a preponderance of the evidence.

On the issue of the relator's inability to pay, evidence was...