In re Bielefeld

• Decision Date: 27 August 2004
• Docket Number: No. 2-03-280-CV.,2-03-280-CV.
• Citation: 143 S.W.3d 924
• Parties: In re Richard A. BIELEFELD, Relator.
• Court: Texas Court of Appeals

143 S.W.3d 924

In re Richard A. BIELEFELD, Relator.

No. 2-03-280-CV.

Court of Appeals of Texas, Fort Worth.

August 27, 2004.

Appeal from the 231st District Court of Tarrant County, Randy Catterton, J Stephanie Dugger Woodard, Fort Worth, for Relator.

BeAnn Sisemore, Fort Worth, for Real Party in Interest.

PANEL A: CAYCE, C.J.; GARDNER, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment).

OPINION ON REHEARING

ANNE GARDNER, Justice.

This is an original habeas corpus proceeding. Relator Richard A. Bielefeld challenges a trial court order committing him to jail for contempt of court in failing to pay interim attorney's fees of $50,000 to his wife's divorce lawyer. We withdraw our prior opinion of September 29, 2003 denying relator's petition for writ of habeas corpus and substitute the following in it's place, grant his motion for rehearing, deny his motion for rehearing en banc, and order relator discharged from confinement.

FACTUAL BACKGROUND

Rita F. Bielefeld filed suit for divorce from relator. The parties entered into an order pending the divorce whereby relator would make the house payment, pay utilities and reasonable maintenance for the house, Rita's car payment, and auto and health insurance, and pay $200 weekly in temporary spousal support. Relator retained custody of the minor child of the marriage, and the parties agreed no temporary child support would be ordered. Relator agreed to pay $3,000 in interim attorney's fees to Rita's attorney.

Subsequently, Rita's attorney filed a request for additional interim attorney's fees and expenses, claiming that she needed the fees and expenses for an expert to evaluate and determine the character of a business formed and operated by relator and his brother, which relator contended was his separate property, and to prepare for trial. On August 19, 2002, following a hearing at which evidence and testimony were presented establishing that relator might be able to borrow the sums requested from the business or from his parents, the trial court apparently made an oral order for additional interim attorney's fees and expenses of $50,000. Following an additional hearing on relator's motion for reconsideration, the trial court entered its written "Order for Payment of Interim Attorney's Fee" stating, in pertinent part, as follows:

The Court has now heard further testimony and arguments of counsel regarding the payment of interim attorney's fees to Petitioner's counsel, BeAnn Sisemore. Based on the needs of the applicant as weighed against the ability of the Respondent to pay such fees, the Court finds as follows:

....

IT IS THEREFORE ORDERED that Petitioner's request for interim attorney's fees is granted. Respondent, RICHARD ALAN BIELEFELD, is ORDERED to pay Petitioner's attorney, BEANN H. SISEMORE, at her address of 111 North Houston Street, Suite 205, Fort Worth, Texas 76102, interim attorney's fees of FIFTY THOUSAND DOLLARS ($50,000) on or before 5:00 p.m. on the 1st day of Oct., 2002.

On May 2, 2003, Rita's attorney filed a motion for enforcement of the order. Following a hearing on that motion, the trial court entered an order holding relator in both criminal and civil contempt for failure to pay the interim attorney's fees ordered and for the first time characterized the interim attorney's fees as "additional spousal support." The commitment order states: The Court finds that an order was entered on August 19, 2002, wherein Respondent, RICHARD ALAN BIELEFELD, was ordered to pay interim attorney's fees of $50,000 to BEANN H. SISEMORE at 111 North Houston Street, Suite 205, Fort Worth, Texas 76102, on or before 5:00 p.m. on the 1st day of October, 2002, as additional spousal support for benefit of Petitioner, RITA F. BIELEFELD ... [Emphasis ours.]

Further finding that relator was financially able to pay the attorney's fees ordered and that he was guilty of contempt of court for failure to pay those fees, the trial court assessed relator's punishment at thirty days' confinement in the Tarrant County jail, with confinement continuing thereafter until he paid $50,000 as interim attorney's fees "into the registry of this Court."

Relator filed his petition for writ of habeas corpus in this court, raising three issues: whether he was incarcerated for non-payment of a "debt" in violation of article I, section 18 of the Texas Constitution; whether the trial court abused its discretion by incarcerating relator for non-payment of an unreasonable amount that was beyond relator's ability to pay; and whether the contempt and commitment orders were sufficiently specific to be enforced.

A divided panel denied the petition. Relator filed a motion for rehearing en banc, which we have construed as both a motion for rehearing and a motion for rehearing en banc. We provided for relator's release from confinement on bond pending our determination of the merits of this proceeding and requested a response to relator's petition for writ of habeas corpus. No response has been filed.

STANDARD OF REVIEW

An original habeas corpus proceeding is a collateral attack on the contempt judgment.¹ The purpose of a habeas corpus proceeding in civil matters is to command the release of a person imprisoned "by virtue of an order ... issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case."² We review a petition for writ of habeas corpus to determine if the order of commitment is void, either because it was beyond the power of the court to enter or because the contemnor was not afforded due process.³ Guilt or innocence of the relator is not an issue; the only issue concerns the lawfulness of the relator's imprisonment.⁴

DISCUSSION

Relator complains that the commitment order is void because of the deeply rooted constitutional prohibition in Texas against imprisonment for a debt. As a general rule, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period until he or she complies with the order.⁵ However, the failure to comply with an order to pay a debt is not contempt punishable by imprisonment because of the Texas Constitution's prohibition, which states, "No person shall ever be imprisoned for debt."⁶ An order of imprisonment for failure to pay a debt is void as violating article I, section 18 and may be attacked by petition for writ of habeas corpus.⁷

Section 6.502 of the Texas Family Code allows the trial court to enter temporary orders, including orders for payment of support for either spouse and reasonable interim attorney's fees, and section 6.505 allows the trial court to punish by contempt the violation of any such temporary order.⁸ It is also generally held, however, that Texas law forbids collection of attorney's fees by contempt proceedings.⁹

Wallace, the principal case cited by courts for the proposition that attorney's fees may not be enforced by contempt, involved an order similar to that sought to be enforced here.¹⁰ In that case, the trial court entered a temporary order commanding the husband pay to the wife $10,500 for past attorney's fees and $1,300 in future expenses that might be incurred by her in a pending divorce proceeding. While recognizing the trial court's power on final disposition to award attorney's fees to the wife, the reasonableness of which was to be determined by the trier of fact, the supreme court held that the trial court had no authority to summarily order them paid or to enforce that order by contempt.¹¹

On the other hand, it has long been established that the obligation that the law imposes on spouses to support one another, as well as on parents to support their children, is not considered a "debt" within the constitutional prohibition but, rather, a legal duty arising out of the legal status of the parties, and failure to comply with a court order for spousal or child support is thus enforceable by contempt.¹² The exception for child and spousal support obligations from the constitutional prohibition against imprisonment for "debt" has been extended to assessments of attorney's fees incurred to enforce orders for temporary spousal or child support.¹³ The rationale for authorizing contempt for failure to pay attorney's fees in a suit to enforce temporary support obligations is that the attorney's fees and costs are "incidental to" and a part of the underlying obligation.¹⁴ Texas courts, however, have not extended the use of contempt for recovery of attorney's fees beyond those incurred in enforcing the legal duties of spousal or child support, emphasizing that the power of contempt of court must be exercised with "caution."¹⁵

Several courts have held that interim orders to a spouse to pay third-party debts such as mortgage and car payments directly to creditors in pending divorce proceedings are orders for payment of "debt" in violation of the Texas Constitution and are thus unenforceable by contempt, although those courts stated they might have held differently had the fees been characterized as temporary spousal support.¹⁶

In Ex Parte Kimsey, the El Paso Court of Appeals held that an order for interim attorney's fees of $50,000 payable for the wife's past legal fees and future expenses in a divorce suit was not an order for a "debt" within the constitutional prohibition and was therefore enforceable by contempt.¹⁷ The El Paso court chose not to follow those courts that had held interim orders for payment of third-party debts directly to creditors unenforceable by contempt, stating that "[i]t matters not whether the trial court awards alimony pendente lite to the wife in order to provide her sufficient funds with which to pay her attorney or whether the court orders, as temporary spousal support, that the monies will be paid directly to the attorney."¹⁸ The court in Kimsey also distinguished Wallace on the basis that the supreme court had there concluded...