In re Henry

• Decision Date: 14 January 2005
• Docket Number: No. 04-0052.,04-0052.
• Citation: 154 S.W.3d 594
• Parties: In re Paul Edward HENRY.
• Court: Texas Supreme Court

154 S.W.3d 594

In re Paul Edward HENRY.

No. 04-0052.

Supreme Court of Texas.

January 14, 2005.

Charles F. Holmans III, Law Office of Charles F. Holmans, Dallas, for relator.

Lora A. Pickar, Unglaub Law Firm, Plano, for respondent.

PER CURIAM.

Relator in this habeas corpus proceeding challenges his confinement in Collin County jail for failure to pay child support and past-due property taxes in accordance with a final divorce decree. We ordered the relator released on bond pending our consideration of his petition for writ of habeas corpus. We conclude that the relator's confinement for failure to pay property taxes constituted imprisonment for a debt in violation of article I, section 18 of the Texas Constitution, and that the trial court's commitment order is void. Accordingly, we grant the writ of habeas corpus and order the relator discharged.

Paul Edward Henry and Dawn Henry were divorced in November 1997. They had one child. The final divorce decree ordered Paul to pay weekly child support, certain debts, and the 1995 and 1996 real estate taxes due on the marital residence. Paul failed to comply with the decree, and on September 3, 2003, the trial court conducted a hearing on Dawn's motion to enforce. On December 5, 2003, the trial court signed an order finding Paul guilty of contempt for failure to pay past-due real estate taxes and of 359 separate acts of contempt for failure to pay child support. The trial court imposed a criminal contempt sentence of confinement in the county jail for 72 hours and a civil contempt sentence requiring that Paul remain confined until he paid his ex-wife $30,141.42, which included $20,873 in past-due child support, $2,268 in interest, $4,640.42 in past-due property taxes, and $2,360 in attorney's fees. The trial court suspended the sentence on the condition that Paul make weekly payments toward the full judgment and continue the previously ordered weekly child-support payment, but the trial court revoked the suspension in a separate commitment order signed on January 8, 2004, after Paul failed to comply with the suspension order's conditions. Paul was ordered to serve the 72-hour criminal contempt portion of the order and was remanded to custody for confinement in the county jail until he paid Dawn the full judgment of $30,141.42, plus $860.25 in additional child support and $2,300 in additional attorney's fees. Paul filed a petition for writ of habeas corpus in the court of appeals, which was denied. He then petitioned this Court for relief.

A commitment order is subject to collateral attack in a habeas corpus proceeding. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). A writ of habeas corpus will issue if the trial court's contempt order is void, either because it is beyond the court's power or because the relator has not been afforded due process. See id.; see also Ex parte Swate, 922 S.W.2d 122, 124 (Tex.1996). A commitment order that violates the Texas Constitution is beyond the court's power and is void. See Ex parte Yates, 387 S.W.2d 377, 380 (Tex.1965). The Texas Constitution provides that "[n]o person shall ever be imprisoned for debt." Tex. Const. art. I, § 18. Thus, although an order requiring payment of debt may be enforced through legal processes like execution or attachment, a confinement order premised on failure to pay a debt is void. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993) (stating "the failure to comply with an order to pay a `debt' is not contempt punishable by imprisonment").

A person may be confined under a court's contempt powers for failure to pay child support.¹ See Tex. Fam.Code §§ 157.001, 157.166-.167; Hall, 854 S.W.2d at 658. But the obligation to support a child is viewed as a legal duty and not as a debt. See Hall, 854 S.W.2d at 658. Similarly, attorney's fees related to child-support contempt actions are viewed as costs and are not considered a debt. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188-89 (1953). In this case, the trial court clearly had authority to order Paul confined for failure to pay past-due child support and related attorney's fees. We must decide whether the trial court also had authority to order Paul confined for failure to pay past-due property taxes.

As with child-support obligations, a person may be held in coercive contempt for failure to satisfy an obligation to deliver specific property pursuant to a division of the community estate. See Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975). The delivery of community property under a divorce decree is not considered payment of a debt when the delivering party surrenders property to which the former spouse is legally entitled. Id. In that instance, the surrendering spouse is, constructively, a trustee in holding the other spouse's property; as such, the surrendering spouse is not paying a debt, but rather turning over property rightfully due the other under the divorce decree. Id.; Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 940-41 (1961). The Henrys' divorce decree addresses the payment of property taxes in a section devoted to division of assets and requires payment of the taxes "as a part of the division of the estate of the parties."² We must determine whether the trial court's coercive contempt sentence for Paul's failure to pay the court-ordered property taxes constitutes prohibited imprisonment for debt.

We have held that when a trial court finds that the particular property at issue currently exists and awards that property as part of the community estate's division, the contemnor is not indebted to the other party, but becomes a constructive trustee who holds that party's assets. Preston, 347 S.W.2d at 940. In such an instance, a court may find the holding party in contempt and order confinement for willfully refusing to obey an order to turn over funds to which the other party is legally entitled. Id. at 940-41. In this case, the Henrys' divorce decree did not indicate that funds to pay the property taxes presently existed, nor did it specify particular community funds from which the property taxes were to be paid. Without such identification of existing funds, we cannot consider Paul a constructive trustee or fiduciary who holds community assets that rightfully belong to Dawn. Consequently, Paul's obligation to pay past-due property taxes is a debt owed to the taxing entity. See Ex parte Chacon, 607 S.W.2d 317, 319 (Tex.Civ.App.-El Paso 1980, orig. proceeding) (holding that a judgment providing for payment of federal taxes is a debt owed to the federal government). The fact that the tax obligation was imposed as a part of the division of community property does not in itself transform the obligation into one enforceable by coercive contempt. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex.1979) (citing Ex parte Duncan, 462 S.W.2d 336 (Tex.Civ.App.-Houston [1st Dist.] 1970, orig. proceeding) (acknowledging that coercive enforcement of divorce decree's recital of the parties' agreement that relator would make payments on a car note constituted imprisonment for debt despite fact that the car was awarded to relator's wife as part of the community property division)). We conclude that Paul's obligation to pay property taxes as ordered in the divorce decree is a debt and therefore is not enforceable by confinement for contempt. See Tex. Const. art. I, § 18.

Paul contends the trial court's entire commitment order is void because it assesses one coercive punishment for all acts of civil contempt when at least one of those acts is not punishable by confinement. We agree. In Ex parte Davila, we held that a contempt order requiring the relator to pay a sum of money that included amounts that could not be the basis for contempt is void and requires that the relator be discharged from confinement. 718 S.W.2d 281, 282 (Tex.1986). As in Davila, the commitment order here does not assess separate penalties for each contemptuous act; rather, it requires Paul to pay a $30,141.42 lump sum to secure his freedom. Id. This lump sum includes the past-due property taxes and associated penalties, and the commitment order confines Paul until he satisfies the full obligation. "If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void." Id. Because the trial court did not allocate the $30,141.42 judgment based...