Ex parte Williams, 7262

• Decision Date: 10 June 1971
• Docket Number: No. 7262,7262
• Parties: Ex parte Charles WILLIAMS.
• Court: Texas Court of Appeals

Page 449

469 S.W.2d 449

Ex parte Charles WILLIAMS.

No. 7262.

Court of Civil Appeals of Texas Beaumont.

June 10, 1971.

Zbranek & Friend, Liberty, for relator.

Gordon R. Pate, Beaumont, for respondent.

KEITH, Justice.

Relator was adjudged guilty of contempt for the violation of an order of the District Court of Liberty County ordering him to make monthly payments for temporary alimony and child support pending the trial of an action for divorce. Our jurisdiction is invoked by the writ of habeas corpus under the provisions of Art. 1824a, Vernon's Ann.Civ.St. The parties are in agreement that for this contempt judgment to be subject to collateral attack, it must be absolutely void and not merely voidable. Ex parte Tyler, 152 Tex. 602, 261 S.W .2d 833, 834 (1953); Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249, 250 (1962). We do not, in this original proceeding, review the exercise of discretion by the trial judge nor the sufficiency of the evidence to support his action in the premises. Ex parte LaRocca, 154 Tex. 618, 282 S.W.2d 700, 703 (1955). As was said in Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, 1003 (1947), 'We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order.'

On January 4, 1971 the trial court amended a prior order so as to require Relator to pay $700 per month for alimony pendente lite and child support, the first payment being due on January 15, 1971. This order was entered during the course of a divorce proceeding between Relator and his wife then pending between parties upon the docket of the District Court of Liberty County. At the appointed time, Relator paid $500 and was cited to show cause why he should not be held in contempt for not paying the full amount as ordered by the court. At the hearing where Relator was represented by counsel, he testified that he paid all that he had available and was unable to borrow any money with which to pay the remainder then due under the order of the court mentioned. He went into detail as to the decline in his business fortunes, his lumber business was in the doldrums, his trucks were not operating for lack of repairs, and he was striving valiantly to preserve the community property of the parties.

At the conclusion of the hearing, in an order dated February 19, 1971, the trial court found the defendant guilty of contempt and assessed his punishment at a fine of $100 and imprisonment in the county jail for a period of forty-eight hours. The order continued:

'It is further ORDERED that the said Defendant, Charles Williams, shall remain in jail until he has purged himself of contempt by paying the full amount of temporary alimony pendente lite and child support in arrears, said amount now being TWO HUNDRED DOLLARS ($200.00) due January 15, 1971 and TWO HUNDRED DOLLARS ($200.00) due February 15, 1971, being an aggregate of FOUR HUNDRED DOLLARS ($400.00); * * *'

Relator's application for the writ was filed in this court on March 25, 1971, and in his verified application, he alleged that 'At all times since the date of the entry of the aforementioned Judgment (February 19, 1971), Petitioner has been under said Commitment Order and is currently held by said Sheriff, and/or deputy thereof in the County Jail of Liberty County, Texas, * * *'

Relator does not contend that he has paid the fine or that he has made the payments due under the court's order holding him in contempt; and, Respondent, on the other hand, does not directly traverse Relator's allegations concerning his imprisonment.

Relator relies principally upon Ex parte Gonzales, 414 S.W.2d 656 (Tex.Sup.1967), as excusing his disobedience of the court's order. And, since he was the only witness who testified upon the subject, he contends that his inability to pay was established conclusively under the rationale of Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.Sup.1967).

Giving full recognition to the rules enunciated in both Gonzales and Rohleder, we disagree with Relator. In the first place, Relator has not shown that he is completely without means of discharging the monetary aspects of the contempt order. Our record shows beyond dispute that he had on deposit, in the form of certificates of deposit, $27,500 in two banks in the county. He was under a temporary injunction issued by the trial court in the divorce proceedings which forbade his withdrawing any of such funds during the pendency of the suit. But, on the other hand, it is clear that Relator made no formal request of the trial court for the entry of an order modifying the temporary injunction so that he could obtain funds from either of the two banks with which to comply with the court's order.

The possibility of relaxing the restraining order so as to permit Relator to procure the additional sums ($200 per month) to comply with the support order was discussed in the record of the proceedings. Unfortunately, counsel for the parties disagreed as to the allocation of such withdrawals in the final settlement of the community property of the parties, i.e., whether such sums so withdrawn would be charged as an advance to the Relator or to the wife. The trial court was not, under the circumstances, in position to rule upon the legal effect of such...