In re Broussard

• Decision Date: 05 August 2003
• Docket Number: No. 14-03-00413-CV.,14-03-00413-CV.
• Parties: In re Arthur BROUSSARD, Relator.
• Court: Texas Court of Appeals

112 S.W.3d 827

In re Arthur BROUSSARD, Relator.

No. 14-03-00413-CV.

Court of Appeals of Texas, Houston (14th Dist.).

August 5, 2003.

Michelle Leblanc Folger, Houston, for relator.

Sharron K. Wall, Thomas J. Wallace, Houston, for respondent.

Panel consists of Justices ANDERSON, SEYMORE and GUZMAN.

OPINION

CHARLES SEYMORE, Justice.

Relator, Arthur Broussard, challenges the trial court's order of March 18, 2003, finding relator in contempt, revoking suspension of commitment, and committing relator to jail. In six issues, relator asserts that his due process rights have been violated. On April 18, 2003, we issued an order, granting relator's petition pending final determination of this cause, and set bond of $500.00. Relator posted bond and was released from incarceration. Because we find the contempt order void, we grant relator's petition, order relator released from the bond set by this Court on April 18, 2003, and order relator discharged from custody.

History

On February 5, 2002, the trial court found relator in contempt for failure to pay court-ordered child support arrearages of $1,551.78, including interest. Punishment was assessed at confinement in the county jail for 180 days and day-to-day thereafter until he purged himself of the contempt by paying the arrearage, attorney's fees and court costs. Commitment was suspended pursuant to certain listed conditions, including the requirement that he pay his ongoing child support obligation of $300.00 per month, payable on the 1st of each month.

On June 7, 2002, the trial court entered a judgment of contempt nunc pro tunc, which added the relator's failure to make certain health insurance premium reimbursement payments, as additional child support. The punishment ordered was the same as in the February 5, 2002, order, but the conditions for suspension of commitment included a new condition, the requirement that relator pay and continue to pay, as additional child support, the health insurance premium of $19.00 on the 1st and 15th of each month.

On December 31, 2002, a motion for enforcement was filed. On March 18, 2003, the trial court held a hearing on the enforcement motion and issued an order, revoking suspension of commitment, and holding relator in contempt. In this order, the trial court found that relator had failed to comply with prior orders by failing to make child support payments of $300.00 on February 1, 2002, February 15, 2002, March 1, 2002, March 15, 2002, and April 1, 2002. Accordingly, the trial court committed relator to the county jail for confinement for a period of 180 days for each violation, with the sentences to run concurrently. The trial court also ruled that relator remain in confinement day to day until relator paid, as additional child support, attorney's fees and other fees relating to commitment.¹

Failure to Make Bi-Monthly Payments of $300.00 in Child Support

Relator first complains that his due process rights were violated when he was incarcerated for allegedly failing to timely pay $300.00 bi-monthly, when the divorce decree did not require him to make bi-monthly payments of $300.00. The March 18, 2003 contempt order (hereinafter "the contempt order") found that relator had failed to comply with prior orders by failing to make child support payments of $300.00 on February 1, 2002, February 15, 2002, March 1, 2002, March 15, 2002, and April 1, 2002. The Divorce Decree, however, only required relator to pay $300.00 per month, payable on the 1st of each month.

An original habeas corpus proceeding is a collateral attack on a contempt judgment. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether he was afforded due process of law or if the order of contempt was void. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). A court will issue a writ of habeas corpus if the order underlying the contempt is void, Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983), or if the contempt order itself is void. Gordon, 584 S.W.2d at 688. An order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law. Ex parte Barlow, 899 S.W.2d 791, 794 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding).

Section 157.166 of the Family Code sets out the required contents of a child support enforcement order. Tex. Fam.Code Ann. § 157.166 (Vernon 2002). The enforcement order must include, among other things, the provisions of the order for which enforcement was requested and the acts or omissions that are the subject of the order. Id. at (a). Here, the trial court set out the provisions correctly, but when stating relator's omissions, it found violations of requirements not found in any prior order. The trial court found relator in contempt for failing to make payments of $300.00 on February 1, 2002, February 15, 2002, March 1, 2002, March 15, 2002, and April 1, 2002. The Divorce Decree ordered relator to make child support payments of $300.00 per month, payable in one installment on the 1st of each month. Because no underlying order required relator to make payments of $300.00 on the 15th of the month in addition to $300.00 payments on the 1st of the month, relator should not be the subject of contempt proceedings for failing to make the February 15th and March 15th payments of $300.00. Thus, the portion of the contempt order holding relator in contempt for failing to make $300.00 payments on February 15th and March 15th is void.

Real party in interest counters that the trial court's intent was to find relator in contempt for failing to make five bi-monthly payments of the health insurance premiums. The Divorce Decree did impose on relator the additional child support obligation of paying health insurance premiums of $19.00 bi-monthly. Thus, real party concedes that it was error for the trial court to hold relator in contempt for failing to pay $300.00 on February 15th and March 15th. Real party argues that, because the contempt order assesses separate sentences for each violation, only the erroneous violations are void and not the entire order. Real party asserts that we have authority to reform the order by severing the two erroneous violations, those for February 15, 2002 and the March 15, 2002, while retaining the otherwise valid commitment order.

We agree with real party that, if a severable portion of the contempt or commitment order is void, an appellate court may strike the offending portion and deny relief as to the valid portion of the order. See Ex parte Roosth, 881 S.W.2d 300, 301 (Tex.1994) (severing provision barring good behavior credit and denying relief as to remainder of order); Ex parte Linder, 783 S.W.2d 754, 758 (Tex.App.-Dallas 1990, orig. proceeding) (severing portion of contempt judgment confining relator for failure to pay December 15, 1980 payment as there was no order requiring that payment and denying leave as to remainder of contempt judgment). If this were the only error rendering the contempt order void, the court could merely strike the references to the failure to pay $300.00 on February 15th and March 15th. Because in subsequent sections of this opinion we find the order void on other grounds, we decline real party's request that we strike the references to February 15, 2003 and March 15, 2003.

Untimely Payment of Health Insurance Premium

In his second issue, relator argues his due process rights were violated when he was incarcerated for allegedly making untimely payments for health insurance premiums ordered as child support of $38.00 because both relator and real party were ordered to pay this amount under the terms of the divorce decree. Relator claims the divorce decree is ambiguous because it orders both relator and real party to provide payments for health insurance as child support. Because he claims this portion of the decree is ambiguous, relator asserts it cannot be enforced by contempt.

The provisions for payment of health insurance premiums are set out in Exhibit A to the divorce decree. In this exhibit, the trial court orders real party to maintain the child as a dependent on real party's health insurance plan and orders that relator "pay to [real party] the cost of insuring the child on [real party's] health insurance plan in the amount of $19.00 which is to paid along with the child support payment beginning with the first $19.00 payment due on July 1, 2000, the second $19.00 payment due on July 15, 2000, and thereafter in payments of $19.00 due on the first day of the month and a like payment of $19.00 on the fifteenth day of each and every month...." Real party is ordered to make like payments to relator only if the health insurance for the children is converted to relator's health insurance. Accordingly, we find the decree unambiguous regarding relator's health insurance premium reimbursements. We overrule relator's second issue.

Judgment Nunc Pro Tunc

In his third issue, relator claims his due process rights were violated when he was committed for failure to comply with an order nunc pro tunc signed after the trial court lost plenary power and which increased relator's punishment. In response, real party asserts that the nunc pro tunc judgment merely corrected a clerical error and that relator waived any complaint about this order because he approved the order as to form and substance.

Turning first to the waiver claim, real party cites as support the cases of Ex parte Crawford, 684 S.W.2d 124 (Tex.App.-Houston [14th Dist.] 1984, orig. proceeding) and Cisneros v. Cisneros, 787 S.W.2d 550 (Tex.App.-El Paso 1990, orig. proceeding). The El Paso court has held that approval of a judgment as to substance waives any complaint about that judgment. 787 S.W.2d at 552. In Crawford, there was no approval as to substance by the parties, but both parties stated in their briefs that the child support order was...