Ex parte Sutherland, B--5210

CourtSupreme Court of Texas
Citation526 S.W.2d 536
Docket NumberNo. B--5210,B--5210
PartiesEx parte Vernon Douglas SUTHERLAND.
Decision Date16 July 1975

Cornett, Echols & Baird, Leighton Cornett, Paris, for relator.

Kennedy & Minshew, Jack G. Kennedy and W. Lawrence Evans, Sherman, for respondent.

WALKER, Justice.

This is an original habeas corpus proceeding. Vernon Douglas Sutherland, relator, was adjudged guilty of contempt for violating the terms of a prior divorce judgment by failing to pay his former wife one-half of the 'ratainer pay' received by him as a member of the Fleet Reserve. He attacks the contempt order on two grounds: (1) the retainer pay received after rendition of the divorce judgment constitutes his separate earnings, relator contends, and the provision in the divorce judgment ordering him to pay one-half to his former wife is a void attempt to require the payment of alimony; and (2) he is being imprisoned for debt in violation of Article I, Section 18, of the Texas Constitution, Vernon's Ann.St. Relator urged these grounds in applying to the Court of Civil Appeals at Texarkana for a writ of habeas corpus. See Article 1824a, Vernon's Ann.Civ.St. That court granted the petition, but after a hearing it remanded relator to the custody of the sheriff. Ex parte Sutherland, Tex.Civ.App., 515 S.W.2d 137 (wr. dis.). Relator then applied to us for a writ of habeas corpus, and his petition was granted because we entertained doubts as to the legality of his confinement. After hearing and after further consideration of his contentions, we have concluded that he was properly remanded to custody by the Court of Civil Appeals.

The divorce judgment was rendered by the 6th Judicial District Court of Fannin County on August 31, 1971. Under its terms the divorce was granted, the minor children born to the marriage were placed in the custody of their mother, and relator was ordered to make monthly payments for support of the children. Certain real and personal property was awarded to relator, and other real and personal property was awarded to the wife.

Prior to the divorce relator had served for more than 15 years in the Naval Air Reserve. On July 15, 1970, he was released from active duty and was transferred to inactive duty in Class F--6, United States Naval Fleet Reserve. Under the provisions of the Federal statute, a member of the Fleet Reserve is entitled, when not on active duty, to 'retainer pay' based on the basic pay he received at the time of transfer and the number of years of active service in the armed forces. 10 U.S.C.A. § 6330. Relator's orders require him to report a change of address promptly, to submit to a physical examination at least once every four years, to inform his commanding officer of any change of health that might prevent active service in time of war, to answer all official correspondence promptly and comply with instructions contained therein, and to notify his commanding officer of plans to reside or travel in a foreign country for more than 30 days.

Relator is not in a retired status but may be called to active duty in time of war or national emergency. In time of peace he may be required to perform not more than two months' active duty for training in every four-year period. 10 U.S.C.A. § 6485. When he has completed 30 years of service, or when he is found not physically qualified, he will be transferred to the appropriate Retired Reserve and will then be entitled to retired pay at the same rate as the retainer pay to which he was entitled at the time of his transfer to the Retired Reserve. 10 U.S.C.A. § 6331.

The divorce judgment recites the court's conclusions that the wife, Hazel Joy Sutherland, should be awarded 'an undivided 1/2 interest in and to that certain earned property right owned by the parties' represented by relator's having been released from active duty and transferred to inactive duty in the Fleet Reserve, that 'by reason thereof he is receiving payments' in the amount of.$257.00 per month, that the wife should be awarded one-half of all Fleet Reserve payments received by relator up to the date of the judgment and a like interest in all future payments received by him, and that relator should be ordered to pay same into the registry of the court. In the decretal provisions of the judgment, the retainer pay being received by relator was adjudged to be community property, a one-half interest therein was awarded to the wife, relator was ordered to pay into the registry of the court one-half of the retainer pay received by him from the time of trial up to the date...

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30 cases
  • Ex parte Burson
    • United States
    • Supreme Court of Texas
    • April 22, 1981
    ...If there is no appeal from the divorce court's division of the property, that decree may not be collaterally attacked. Ex parte Sutherland, 526 S.W.2d 536 (Tex.1975); Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 163 (1962); see also Constance v. Constance, 544 S.W.2d 659 The imp......
  • Ex parte Hovermale, 04-82-00017-CV
    • United States
    • Court of Appeals of Texas
    • June 30, 1982
    ...Preston, 162 Tex. 379, 384, 347 S.W.2d 938, 940-41 (1961); See Ex parte Gorena, 595 S.W.2d 841, 846-47 (Tex.1979); Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975); and Ex parte Anderson, 541 S.W.2d 286, 288 (Tex.Civ.App.-San Antonio 1976, no Therefore, for these reasons, I would deny re......
  • Sutherland v. Sutherland
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • April 5, 1983
    ...not a "void" judgment; hence, whether or not it was "erroneous," the judgment was not susceptible to collateral attack. Ex parte Sutherland, 526 S.W.2d 536 (Tex. 1975). On September 1, 1976, Vernon filed suit in the District Court of Fannin County to vacate, annul, or hold void the retainer......
  • Garza v. Garza, 16902
    • United States
    • Court of Appeals of Texas
    • December 30, 1983
    ...the option in question. The prior judgment is not subject to collateral attack under these circumstances. See Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975). Thus, we conclude that the point of error constituted a collateral attack on the original divorce decree, which is not permitted......
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