Garrison v. Garrison, 12472

• Decision Date: 08 December 1976
• Docket Number: No. 12472,12472
• Citation: 544 S.W.2d 797
• Parties: Harry A. GARRISON, Appellant, v. Lillian C. GARRISON (Pruitt), Appellee.
• Court: Texas Court of Appeals

Page 797

544 S.W.2d 797

Harry A. GARRISON, Appellant, v. Lillian C. GARRISON (Pruitt), Appellee.

No. 12472.

Court of Civil Appeals of Texas Austin.

Dec. 8, 1976.

Rehearing Denied Jan. 5, 1977.

John W. Benbow, Benbow & Gross, San Antonio, for appellant.

James F. Gardner, William W. Sommers, Gardner, Ferguson & Associates, San Antonio, for appellee.

PHILLIPS, Chief Justice.

This is an appeal from a proceeding of contempt which we must dismiss for want of jurisdiction.

A final divorce decree between the parties hereto was entered in May of 1975. The decree awarded Lillian Garrison, appellee, 25 percent of the gross military monthly retirement pay after taxes, together with 25 percent of any increase or decrease of the gross military monthly retirement pay subsequently added to or deducted from the retirement pay of Harry Garrison, appellant, and ordered the appellant to deliver to appellee on a monthly basis, her share of these benefits. Said payments were made retroactive to October, 1974. Appellant failed to pay appellee anything from October, 1974 to October, 1975. It was only after a writ of garnishment had been obtained that he made a lump sum payment to appellee of the arrearage. Then in December of 1975, the trial court heard the motion for contempt brought by the appellee herein due to appellant's refusal to pay her that portion of the benefits due. At the time of this hearing, however, appellant had paid appellee the amount due her and was current in his payments.

In his judgment of contempt, after stating the facts set out above, the trial court found appellant in contempt and ordered appellant: '. . . that with respect to future payments due under the judgment of May 5, 1975, that it is in the interest of the parties and the court that this court have reasonable assurance that the Cross-Respondent Harry A. Garrison will continue to purge himself of his contempt of the court and comply with the judgment of the court.' The court then ordered appellant to execute and to keep in full force and effect with the military authorities an allotment order directing the Department of the Air Force to pay appellee on a monthly basis the 25 percent of his retirement income as outlined above.

Appellant has attacked this judgment by points of error indicating that the trial court exceeded its authority in the contempt proceeding by ordering appellant to execute the abovementioned allotment claiming the said order amounted to an unlawful attempt by the court to amend a final decree of divorce.

The appellant also complains as error that the contempt order was illegal in that appellant was not in contempt at the time of the hearing because, at that time, he was current in his payments. Appellant further contends that the only method open to the trial court enforcing compliance with the divorce decree is: 'by a contempt order against appellant predicated upon the terms of the divorce decree under authority contained in Article 1911a, V.A.T.S., and the Appellee's Pleadings.'

Ex Parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936), holds that a court having jurisdiction of the parties and the Res of the litigation, has the undoubted authority to order the surrendering of property held by the defendant. Ex Parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961).

Appellant's contention that the powers of the trial court in enforcing its contempt decree are strictly limited to the provision of Article 1911a, V.A.T.S.,...