Ex parte Sturdivant
| Decision Date | 07 December 1976 |
| Docket Number | No. 8450,8450 |
| Parties | Ex parte Arlen Y. STURDIVANT. |
| Court | Texas Court of Appeals |
Jack O. Herrington, Lovett & Herrington, Clarksville, for appellant.
Pat C. Beadle, Beadle & Beadle, Clarksville, for appellee.
This is an original habeas corpus proceeding by which Relator seeks release from a commitment for contempt issued by the District Court of Red River County, Texas.
Relator was adjudged guilty of contempt for failure to comply with a child support order. He contends that the adjudication of contempt and the resulting commitment are void because he was not given ten (10) days prior notice of the contempt hearing as required by Rule 308--A of Texas Rules of Civil Procedure and Section 14.09 of the Texas Family Code.
Relator and Mary Margaret Sturdivant were divorced by the 102nd Judicial District Court of Red River County on May 4, 1973. Mrs. Sturdivant was awarded custody of the three children born to their marriage and Relator was ordered to pay certain child support payments. Subsequent to the divorce various motions for contempt and pleadings to modify the support provisions were filed. On August 30, 1976, Mrs. Sturdivant filed a 'Petition to Modify Judgment.' On September 20, 1976, a hearing was held in the 102nd Judicial District Court, at the conclusion of which the court entered judgment against Relator for the sum of $13,000.00 and ordered the child support payments increased to $1,502.50 per month. On October 4, 1976, Mrs. Sturdivant filed a petition to have Relator adjudged guilty of contempt for failure to pay the increased child support. A hearing on the motion was set for 10:00 a.m. on October 8, 1976, and on October 4th a 'notice of hearing to show cause' was issues to Relator ordering him to appear at such hearing and show cause why he should not be adjudged in contempt. The notice was served on Relator at 12:30 p.m. on October 6, 1976. Relator failed to appear at the appointed time but the hearing proceeded in his absence and resulted in his being adjudged in contempt. A fine of $1.00 was imposed and Relator was committed to jail for seven days and until he purged himself of contempt by the payment of $1,502.50 child support.
To secure the relief sought, Relator is required to demonstrate that the commitment itself, or the order upon which it was based, was void. Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953).
Rule 308--A specifically requires that notice of a show cause hearing in a proceeding such as this '. . . shall be served...
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In re Minschke
...the required notice amounts to a denial of constitutional due process, "[e]ach case must be judged upon its own facts." Ex parte Sturdivant, 544 S.W.2d 512, 513-14 (Tex. App.—Texarkana 1976, orig. proceeding); see, e.g., Ex parte Waldrep, 783 S.W.2d 332, 334 (Tex. App.—Houston [14th Dist.] ......
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In re Aguilera
...void unless the lack of notice amounts to a denial of constitutional due process. Ex parte Davis, 344 S.W.2d at 155; Ex parte Sturdivant, 544 S.W.2d 512, 513-14 (Tex.Civ.App.--Texarkana 1976, orig. Relator repeatedly complains in his sworn petition that the trial court conducted a hearing i......
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In re V.L.K.
...notice amounts to a denial of constitutional due process. Ex parte Davis, 161 Tex. 561, 563, 344 S.W.2d 153, 155 (1961); Ex parte Sturdivant, 544 S.W.2d 512, 513-14 (Tex. Civ. App.—Texarkana 1976, orig. proceeding). Contrary to Ex-husband's argument, the trial court does not lack jurisdicti......
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Ex parte Riley, 09-85-051-CV
...Dist.] 1972, no writ). For the collateral attack to be successful the order must be absolutely void and not merely voidable. Ex Parte Sturdivant, 544 S.W.2d 512 (Tex.Civ.App.--Texarkana 1976, no writ); Ex Parte Filemyr, 509 S.W.2d 731 (Tex.Civ.App.--Austin 1974, no writ). The fact that a ju......