Ex parte Stephens, 2-87-076-CV

• Decision Date: 12 August 1987
• Docket Number: No. 2-87-076-CV,2-87-076-CV
• Citation: 734 S.W.2d 761
• Parties: Ex parte Bobby Lynn STEPHENS.
• Court: Texas Court of Appeals

Page 761

734 S.W.2d 761

Ex parte Bobby Lynn STEPHENS.

No. 2-87-076-CV.

Court of Appeals of Texas,

Fort Worth.

Aug. 12, 1987.

Scott Schearer, Dallas, for appellant.

Bill J. Butcher, Fort Worth, for appellee.

Before FARRIS, KELTNER and LATTIMORE, JJ.

ORIGINAL PROCEEDING OPINION

KELTNER, Justice.

This proceeding is Bobby Lynn Stephens' original application for a writ of habeas corpus attacking an order of contempt for failure to pay child support.

Stephens is ordered discharged.

Stephens and his ex-wife, Betty, were divorced in 1978. In the decree of divorce, relator was ordered to pay "child support" for two children in the amount of $70.00 per week, the first payment beginning on August 4, 1977, ¹ with a like payment being due on each Friday thereafter.

In December 1986, Betty filed a "Motion For Contempt." The motion alleged that relator failed to make child support payments in the amount of $280.00 for the months of January 1986, February 1986, March 1986, April 1986, September 1986 and October 1986. (Obviously, the motion was prepared on the assumption that each of the months alleged had 4 Fridays. However, January had 5, February had 4, March had 4, April had 4, September had 4, and October had 5. As a result, the motion for contempt impliedly forgave Stephens two weeks child support.) The motion also alleged that Stephens was $19,620.00 in arrears in child support through November 1986. ²

On April 14, 1987, the trial court entered a written judgment of contempt, finding Stephens had violated the prior court order by failing to pay child support on the following dates: January 3, 10, 17, 24 and 31, 1986; February 7, 14, 21 and 28, 1986; March 7, 14, 21 and 28, 1986; April 4, 11, 18, and 25, 1986; September 5, 12, and 26, 1986; October 3, 10, 17, 24 and 31, 1986. Total punishment for the contempt was assessed at confinement in the county jail for 180 days, ³ or until he paid "sufficient sums of money toward the arrearage to warrant his release, said amount to be determined by the Court," or until ordered by the court to be released.

For this court to order the release of relator, the trial court's judgment holding relator in contempt must be void, either because it was beyond the power of the court or because it deprived the relator of his liberty without due process. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). Stephens does not challenge the trial court's jurisdiction. All of his arguments are based upon due process violations.

First, Stephens alleges that he was denied adequate notice of the specific contemptuous acts that he committed, in violation of TEX.FAM.CODE ANN. sec. 14.31(b)(1) (Vernon Supp.1987). Stephens contends there is a fatal variance between the allegations of non-payment contained in the motion for contempt and show cause order, and the payments required by the divorce decree. Specifically, the divorce decree required weekly payments of $70.00 each, whereas the motion and show cause order alleged non-payment of six monthly payments of $280.00 each.

At the outset, we note that Stephens did not make any special exceptions requesting further notice of the charges against him. Therefore, we hold that Stephens' complaint that the motion for contempt and show cause order lacked specificity is waived, because he failed to properly object at the trial court. See Ex parte Blackmon, 529 S.W.2d 570, 573 (Tex.Civ.App.-- Houston [1st Dist.] 1975, no writ); Ex parte Woodruff, 483 S.W.2d 951, 954 (Tex.Civ.App.--Texarkana), writ dism'd w.o.j., 487 S.W.2d 692 (Tex.1972).

Therefore, we overrule Stephens' first complaint.

Second, Stephens contends that his incarceration is illegal because the order of commitment held him in contempt for failing to pay on specific dates, while the motion alleged that he failed to pay during specific months. Additionally, Stephens claims that the motion alleged only six acts of contempt while the order held him in contempt for twenty-five separate acts.

We do not agree with Stephens' interpretation of the motion. As stated above, the motion recited the child support provisions of the decree and when Stephens violated the decree by non-payment. In the next paragraph, it states the time period for which Stephens did not pay. A reading of the entire motion reveals that twenty-five separate acts are alleged.

The trial court, in accordance with section 14.33 of the Family Code, properly made specific findings on Stephens' failure to pay on a weekly basis. See TEX.FAM.CODE ANN. sec. 14.33 (Vernon 1986). Section 14.33 provides that the court's order must contain specific findings setting out the provisions of the underlying decree which the relator violated and the "time, date, and place of each and every occasion on which the respondent failed to comply with such provision, and setting out the relief awarded by the court." As stated above, the decree in the instant case ordered Stephens to pay child support weekly. Therefore, pursuant to the underlying decree, the court was required to enter a contempt order for the individual weekly acts of contempt.

Stephens argues that the trial court is without power to divide one contemptuous act as alleged in a motion for contempt into separate and distinct contemptuous acts. Our Supreme Court so held in Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225, 226 (1945). We note that section 14.33 was not enacted until 1985, approximately forty years after the Genecov case. We have not located any cases construing this 1985 statute. However, pursuant to our interpretation of this statute, the trial court was required to make the findings that it made. Stephens' second complaint is overruled.

Third, Stephens contends that the court's findings of...