Ex parte Tyler
| Decision Date | 07 October 1953 |
| Docket Number | No. A-4220,A-4220 |
| Citation | 261 S.W.2d 833,152 Tex. 602 |
| Parties | Ex parte TYLER. |
| Court | Texas Supreme Court |
Bourne & Lovell, Dumas, for relator.
Lee Minner, County Attorney, Oldham County, Vega, for respondents.
This is an original application for a writ of habeas corpus filed in this Court by relator Tyler. Relator claims that a contempt judgment whereby he is restrained of his liberty is void, because it was issued ancillary to a suit for divorce against relator by his wife, Estelle Tyler, by virtue of a petition where the wife alleges:
'That she is now, and has been for a period of twelve months prior to the filing of this petition, an actual bona fide inhabitant of the State of Texas, and has resided in said County of Sherman for a period of six months.'
Relator contends that since the petition does not allege 'that plaintiff had resided in the County of Sherman for a period of six months next immediately preceding the filing of such petition, * * * said petition is insufficient in law' to sustain the granting of the support order; for the violation of which order relator was adjudged in contempt of court and imprisoned in jail. Relator contends that the District Court acquired no jurisdiction over the divorce cause and its comtempt order is wholly and absolutely void.
Plaintiff in the divorce suit, Estelle Tyler, filed her original petition with the District Clerk of Sherman County, Texas, April 3 1953. In this petition she sought a divorce from relator, a division of community property, and asked for support and maintenance of their eighteen months old child by relator, both during pendency of suit, and thereafter until the child should reach the age of sixteen years. After due notice to relator and after a hearing the District Judge of Sherman County on April 20, 1953, ordered that relator pay into court by April 23, 1953, certain sums of money for the benefit of plaintiff, Estelle Tyler, and their child, Roger Brent Tyler. Relator failed to make these payments, and at a hearing held on May 7, 1953, after proper affidavit had been filed by Estelle Tyler, setting up relator's dufault, and asking he be adjudged in contempt, and after due notice of such hearing the District Judge held relator in contempt of the court's order of April 20, 1953, and ordered him confined in the county jail until he should purge himself of contempt and make the payments, Relator never appeared at any of the hearings, although he had due notice of all of them. On May 21, 1953, relator filed what he called his exceptions and answer to plaintiff's original petition in the divorce action, wherein, among other defenses, he filed a plea in abatement to the petition and asked it be dismissed because the petition did not contain the necessary averments of residence in Sherman County, Texas, as required by Art. 4631, Vernon's Ann.Civ.St. The trial court heard the exceptions and plea in abatement, and evidence thereon, and by an order entered June 8, 1953, overuled all of them, to which action the defendant, relator herein, excepted and gave notice of appeal. At this time the trial judge filed a finding of fact that on April 3, 1953, when plaintiff, Estelle Tyler, filed her original petition for divorce she had not resided in Sherman County, Texas, for a period of six months next immediately preceding the filing of such petition. June 8, 1953 relator filed in this court his motion for leave to file application for writ of habeas corpus, which application was granted, and his application was filed in this court June 9, 1953.
This is a collateral attack by relator upon the judgment of contempt entered by the District Court April 20, 1953. Ex parte Hodges, 130 Tex. 280, 109 S.W.2d 964; 21 Tex.Jur. 424, Habeas Corpus, § 7; 25 Tex.Jur. 767, Judgments, §§ 286 and 289; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626.
In order for this contempt judgment to be subject to collateral attack it must be absolutely void, and not merely voidable. 25 Tex.Jur. 687-688, Judgments, § 252; Ex parte Hodges, supra; Ex parte Scott, supra.
In order for the contempt judgment to be a void judgment it must have been entered by a court without jurisdiction of the parties and of the subject matter. On the other hand, if the Court had jurisdiction of the parties and the subject matter, the judgment is not void, even though it may be an erroneous judgment. Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876; Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810; Heard v. State, 146 Tex. 139, 204 S.W.2d 344; 25 Tex.Jur. p. 698 et seq., Judgments, §§ 257-258.
This court had declared the law to be that the requirements as to residence of a plaintiff in a divorce action as set forth in Art. 4631, V.A.C.S., are not jurisdictional, but merely prescribe the qualifications which a plaintiff must possess before plaintiff is entitled to procure a divorce. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198.
In the case of Mitchell v. Mitchell, Tex.Civ.App., 199 S.W.2d 699, 700, no writ history, a divorce had been granted Jewell Mitchell dissolving her marriage with Ervin Mitchell, and defendant Ervin had been directed to pay $40 per month for care and support of an infant daughter whose custody was given to Jewell, the mother. Thereafter, Ervin failed to make the payments and he was cited to show cause why he should not be held in contempt for failure to comply with the divorce decree. He answered that the divorce judgment and order for support were void, because plaintiff was not an inhabitant of the state, or resident of the county of suit as required by Art. 4631 at the time she filed her suit, and at the time she procured the judgment of divorce and child support. Upon a hearing the trial court set aside the divorce judgment and refused to adjudge Ervin guilty of contempt. In reversing the case and directing the trial court to proceed with a hearing on the order to show cause, the Amarillo Court said: ...
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