Ex parte Swate

• Decision Date: 07 April 1994
• Docket Number: No. B14-94-00050-CV,B14-94-00050-CV
• Parties: Ex Parte Judy Cox SWATE. (14th Dist.)
• Court: Texas Court of Appeals

Page 831

874 S.W.2d 831

Ex Parte Judy Cox SWATE.

No. B14-94-00050-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 7, 1994.

Rehearing Denied May 5, 1994.

Joel A. Nass, Houston, for appellant.

Cheryle R. Johnston, Robin M. Ziek, C. Don Guttman, Joan M. Denton, Houston, for appellee.

Before ROBERTSON and SEARS, JJ., and MORSE, J., Sitting by Assignment.

OPINION

SEARS, Justice.

Relator comes before this Court to petition for a writ of habeas corpus, alleging that she is illegally incarcerated in the Harris County Jail for contempt of a trial court's turnover order. Judy Cox Swate and Tommy Swate were divorced on March 26, 1992, in the 312th District Court of Harris County. Mr. Swate was ordered to pay into the registry of the 312th District Court all checks made payable to him from Hardy, Milutin and Johns. After all payments were deposited in the registry, the money was to be released to Relator, pursuant to the divorce decree.

Prior to the Swate's divorce, Dian Hartwell had obtained a post divorce final judgment against her ex-husband, Tommy Swate, in the 309th District Court of Harris County. Relator, although married to Mr. Swate at the time, was not named as a party to Ms. Hartwell's suit. Subsequent to Relator's and Mr. Swate's divorce, Ms. Hartwell moved for a turnover order in the 309th District Court, requiring Relator to, "upon receipt of any funds from the registry of the 312th District Court, immediately tender all of said funds to John J. Eikenburg, receiver herein, endorsed payable to him." The order was signed on May 10, 1993.

Relator withdrew the money from the 312th District Court's registry, but failed to comply with the 309th District Court's turnover order. Mr. Eikenburg, as Receiver, filed a motion for contempt. A show cause order was signed on June 14, 1993, and a hearing was set for July 8, 1993. On July 15, 1993, Relator filed an answer to the motion for contempt, and a motion to vacate the turnover order. A hearing was held on September 7, 1993. After evidence was presented, the Court found that Ms. Swate's attorney had notice of the turnover order on and before May 10th. The Court further found Ms. Swate's testimony, that her attorney did not tell her about the order, was not credible, and, that "somewhere between June 24th and absolutely no later than July 8th, Ms. Swate did learn of the existence of the order and the Motion for Contempt." Finally, the Court found that although Ms. Swate had disposed of most of the money she withdrew, there was "ten or twelve thousand dollars ... properly belonging to the Receiver" in Relator's possession.

Therefore, the Court orally held Relator in contempt for failure to turnover the funds to the receiver. The Court ordered Relator to spend three days in jail plus a $500.00 fine, suspended until 9:00 a.m. on September 10, 1993, if Relator paid $10,000.00 to the receiver plus the $500.00 fine by 9:00 a.m. on September 10, 1993. If Relator failed to pay a $500.00 fine and $10,000.00 to the receiver by 9:00 a.m. on September 10, 1993, she was to be jailed for 3 days, plus day to day confinement until the $10,000.00, the fine and $13,876.00 in attorney's fees were paid.

On September 9, 1993, this Court issued a stay of all proceedings pending our disposition of a writ of mandamus filed by Ms. Swate. On September 10, 1993, the 309th District Court held a hearing and signed a written order, reflecting its ruling on September 7, 1993, and suspended commitment until this Court lifted its stay. The writ was denied and the stay was lifted on September 30, 1993. A compliance hearing was held on January 20, 1994, to determine if Ms. Swate had complied with the trial court's order. The trial court found that Relator had not complied with its orders, and issued an order of commitment. It is from this order that Relator filed her writ of habeas corpus.

Relator claims that she is illegally confined because the order of commitment is based upon a void turnover order. She asks this Court to review the turnover order, and hold that both it and the order of commitment are void. For this Court to order Relator released from custody, Relator must establish that the order of commitment is void either because the trial court lacked jurisdiction to enter the order, or because the order deprived her of her liberty without due process. Ex parte Bagwell, 754 S.W.2d 490, 491 (Tex.App.-Houston [14th Dist.] 1988, orig. proceeding). A writ of habeas corpus is not a substitute for litigating matters that should have been raised on direct appeal. Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Crim.App.1991), and Bennet v. State, 818 S.W.2d 199, 200 (Tex.App.-Houston [14th Dist.] 1991, no pet).

Relator had the right to complain of the turnover order on direct appeal. Schultz v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 740 (Tex.1991). Her failure to do so does not entitle her to a review of that order by way of habeas corpus. See, Ex parte Johnson, 654 S.W.2d 415 (Tex.1983). Nothing on the face of the order indicates that it is void. ¹ It is improper for Relator to contest the validity of that turnover order through this habeas proceeding. Ex parte Johnson, 654 S.W.2d 415 (Tex.1983); Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Crim.App.1991); and Bennet v. State, 818 S.W.2d 199, 200 (Tex.App.-Houston [14th Dist.] 1991, no pet). Her application for writ of habeas corpus on this ground is denied.

Relator next contends that the order is void because she was denied due process. She claims that she received no personal service, and that the orders fail for lack of specificity. "Due process requires that the alleged contemner be personally served with a show cause order or that it be established that he had knowledge of the content of such order." Ex parte Blanchard, 736 S.W.2d 642 (Tex.1987) (emphasis added). Although the show cause hearing was originally scheduled for July 8, 1993, the hearing was reset to September 7, 1993. Relator responded to the motion for contempt and show cause order by an answer filed on July 15, 1993. Although she claims she was not "personally" served, the evidence shows that Relator did have timely actual knowledge of the contents of the order. Accordingly, we do not find that Relator was denied due process in this manner.

Due process also requires that before a party may be held in contempt for disobeying a court order, the order "must spell out the terms of compliance in clear, specific and unambiguous terms." Ex parte Price, 741 S.W.2d 366, 367 (Tex.1987). The turnover order is clear that Relator was to hand over to John J. Eikenburg any and all funds received by her from the registry of the 312th District Court, immediately upon receipt of those funds. The contempt order must also clearly state in what manner the prior order has been violated. Ex parte McClain, 762 S.W.2d 238, 240 (Tex.App.-Beaumont 1988, orig. proceeding). Even Relator admitted on oral argument that the contempt order and the order of commitment are very specific. We find that the orders clearly delineated the order which had been violated, the penalty imposed, and the manner of purging.

Relator contends that the order of contempt is void because it was signed in violation of this Court's stay. Relator, however cites no authority for this proposition. The order of contempt was signed on September 10, 1993, but pronounced on September 7, 1993, before the stay was in...