Garza v. Fleming, 13451

• Decision Date: 11 March 1959
• Docket Number: No. 13451,13451
• Parties: Calixto GARZA, Appellant, v. Boynton H. FLEMING, Sheriff, Appellee. San Antonio.
• Court: Texas Court of Appeals

Page 152

323 S.W.2d 152

Calixto GARZA, Appellant, v. Boynton H. FLEMING, Sheriff, Appellee.

No. 13451. San Antonio.

Court of Civil Appeals of Texas, San Antonio.

March 11, 1959.

Rehearing Denied April 8, 1959.

Greenwood & Ressell, John C. Myrick, Harlingen, for appellant.

Sharpe, Cunningham & Garza, Hector Yznaga, Brownsville, for appellee.

BARROW, Justice.

This is an appeal by Calixto Garza from the judgment of the District Court denying his application for writ of habeas corpus to secure his release from the custody of Boynton H. Fleming, Sheriff of Cameron County, Texas.

Appellant was defendant in Cause No. 33102-B, in the 138th District Court of Cameron County, styled Aparicia Juarez Garcia vs. Calixto Garza, a divorce proceeding. Said divorce suit resulted in a judgment granting plaintiff a divorce, disposing of the community property, and containing the following provisions with reference to the custody and support of the children, to wit:

'The Court further finds that Plaintiff and Defendant have had born to them as issue of their marriage, the following children: (Listing seven persons, not pertinent herein.)

'All of the before mentioned children being above the age of eighteen years; and the following minors:

'Calixto Garza, Jr., a male, 17 years of age, living with the Plaintiff;

'Felipe Garza, a male, 14 years of age, living with the Plaintiff; and

'David E. Garza, a male, 13 years of age, and living with the Plaintiff.

'The Court further finds that the Plaintiff is a proper and fit person to have the custody and control of the minor children of said marriage; and It Is Therefore Ordered, Adjudged And Decreed that the custody and control of Calixto Garza, Jr., a male, 17 years of age; Felipe Garza, a male, 14 years of age; and David E. Garza, a male, 13 years of age, be, and the same is hereby given to the Plaintiff, Aparicia Juarez Garza, until further orders of this Court; and that the Defendant, Calixto Garza, shall have the right of reasonable visitation of said minor children of said marriage.

'It further appearing to the Court, after investigation of the financial circumstances of Defendant, that the Defendant is well able to contribute to the support of said minor children of the marriage of Plaintiff and Defendant; It Is Therefore Ordered, Adjudged And Decreed By The Court that the said Calixto Garza, Defendant, shall pay to the Plaintiff herein, Aparicia Juarez Garza, the sum of One Hundred Dollars ($100.00) per month for the support of said minor children until David E. Garza shall reach his 18th birthday, or until further orders of the Court. The amount assessed against the Defendant for the support of the minor children as aforesaid may be paid semiannually. The first payment of Six Hundred Dollars ($600.00) shall be made on the 1st of November, 1956, and a like amount on the 1st of May, 1957; and like payments on the 1st days of November and May of each year thereafter.'

Appellant elected to make the payments semi-annually, and made the $600 payments provided for in said decree until May 1, 1958, when he paid only $400. Aparicia Juarez Garza then filed a contempt proceeding in the original cause, seeking to have appellant held in contempt for failure to pay the additional $200. At the conclusion of the contempt hearing, the court adjudged appellant to be in contempt for failure to pay said $200 on May 1, 1958, and ordered the sheriff to restrain him of his liberty until he purged himself of the contempt by paying the additional $200, all costs, and $1. The court made the further provision that in lieu of being restrained of his liberty he might pay the amounts forthwith. In connection with said contempt judgment, the court construed the original support order as follows:

'* * * the Court finds that the language and intendment of the judgment of March 19, 1956, requires and orders that Calixto Garza pay to Aparicia Juarez Garza the sum of $100.00 per month, or $600.00 every six months for the support and maintenance of the minor children, said payments to continue for the benefit of any minor or minors then in being, until David E. Garza attains the age of 18 years, and does not mean that the Defendant pay support for any child of the marriage over 18 years of age. The Court further finds that the said Calixto Garza elected to make the payments in the amount of $600.00 every six months, that is, payments of $600.00 each on the first of November and on the first of May of every year, in accordance with the judgment herein referred to, and the Court further finds that on May 1st, 1958, a payment of $600.00 was due and payable, but that the Defendant, in violation of the judgment of March 19, 1956, then and there persisting, and in full force and effect, paid only the sum of $400.00. The Court further finds that the said failure on the part of Calixto Garza to pay the sum of $600.00, puts him in contempt of this Court.'

The judgment holding appellant in contempt was rendered on September 5, and signed on September 22, 1958. The appellant did not pay the $200.00 required to purge himself of contempt, and thereafter on November 13, 1958, by virtue of an attachment issued out of said court, the appellee Sheriff restrained appellant of his liberty. Thereafter, appellant made application to the court for a writ of habeas corpus, and upon the filing of said application the court permitted appellant to give bail pending the hearing. Upon said bail appellant was released.

On November 20, 1958, the court rendered judgment denying the writ of habeas corpus, and remanded the appellant to the custody of the Sheriff. This appeal is from that judgment.

Appellant relies for reversal on the following points:

First, he contends that the court erred in denying the writ of habeas corpus for the reason that the original judgment ordering him to make periodic payments for the support of his minor children is void, and, consequently, the order of the court holding him in contempt for failure to comply with said order is also void. Second, he contends that the original support order is ambiguous, and that he has complied with the only valid construction of the order. Third, that there was no evidence before the court and upon which said order of contempt was based, that he was able to pay the amount claimed to be due. Fourth, that the court erred in striking and refusing to consider evidence offered by appellant on the hearing of his application for habeas corpus, of the earnings of his minor children. Fifth, that he has complied with the trial court's interpretation of the order by making a reduced payment. Sixth, that he could not be held in contempt when acting upon an honest misinterpretation of the court's order.

Appellant's first contention is that the original support order is void. In arguing that point he says that the order is clear and unambiguous and requires him to make payments for the support of minors after they reach the age of eighteen years. The order is not void. At the time the order was made there were three minors under eighteen years of age. The court had authority to make an order requiring appellant to make periodic payments for their support, and to continue such order as long as there were children under that age. Art. 4639a, Vernon's Ann.civ.Stats. The order did not provide that he should pay one-third of the amount for the support of each of said children, but the total sum of $100 per month 'for the support of said minor children.' A habeas corpus proceeding directed against a judgment or order is a collateral and not a direct method of impeachment, and is available only in the event that the...