In re Lausch

• Decision Date: 03 February 2005
• Docket Number: No. 01-04-01068-CV.,01-04-01068-CV.
• Citation: 177 S.W.3d 144
• Parties: In re Darrell L. LAUSCH, Relator.
• Court: Texas Supreme Court

177 S.W.3d 144

In re Darrell L. LAUSCH, Relator.

No. 01-04-01068-CV.

Court of Appeals of Texas, Houston (1st Dist.).

February 3, 2005.

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Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, TX, for Appellant.

Frank A. Hale, Pasadena, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION

TIM TAFT, Justice.

Relator, Darrell L. Lausch, requests habeas corpus relief from a September 10, 2004 trial court "Order Affirming Associate Judge's Order Holding Respondent in Contempt For Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment." Relator asserts that he is illegally restrained under this order because, among other things, his due process rights were violated when the trial court did not follow Texas Family Code statutory procedures in issuing the order. We deny relief.

Facts

On June 23, 2003, the trial court signed temporary orders (1) making relator the temporary joint managing conservator of the Lausches' son, Joshua, and (2) making real party in interest, Angie Lausch, the temporary joint managing conservator of their other sons, Jacob and Jonah. As child support for Jacob and Jonah, the trial court ordered relator to pay $200 per week, starting June 27, 2003, with a like payment being due on each Friday thereafter until further order of the court. In the order, the trial court enjoined the parties from transferring the property belonging to both or either of them.

On August 19, 2004,¹ the associate judge heard Angie's motion for enforcement of the trial court's June 23, 2003 child support order.² After the hearing, from the bench, the associate judge announced that he found relator's child support payments to be $3,765³ in arrears, and he rendered judgment in that amount, plus $750 in attorney's fees and court costs against relator. The associate judge also stated that he found relator in contempt, sentenced him to 120 days in jail, and ordered that relator remain confined there until the child support arrearage was paid. He informed counsel that he had prepared an associate judge's report to the trial court and asked them to sign it to indicate that they had received his ruling, which they did. The associate judge asked Angie's counsel to submit an order to him by four o'clock that day. Galveston County Sheriff's Office personnel escorted relator to jail after the hearing.

In the handwritten "Associate Judge's Report," the associate judge found as follows:

The court finds Respondent is in arrears in the payment of child support in the sum of $3,675. Judgment is rendered in said sum plus attorney's fees of $750 and court costs over and against Respondent Darrell L. Lausch and in favor of Angie M. Lausch, Petitioner.

Respondent is found in contempt and sentenced to 120 days in the Galveston County Jail. Respondent shall remain confined in the Galveston County Jail until the child support arrearage set forth above is paid plus . . . $750 in attorney fees. . . .

F. Hale to prepare orders by 8/19/04 @ 4:00 p.m.. . . .

[/s/ Stephen Baker]

As requested from the bench by the associate judge, and as directed by the associate judge in his report, Angie's counsel, Frank Hale, prepared an order. The record shows that the trial court, the Honorable Janis Yarbrough, signed the order the next day, August 20, 2004.

The six-page order, entitled, "Order Holding Respondent in Contempt For Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment," varied from the 11-line body of the Associate Judge's Report in the following respects:

(1) The order set forth the language of the prior child support order sought to be enforced.

(2) It set out 19 separate violations (19 successive weeks, 4/9/04 to 8/13/04) of the child support order, including the date of the violation and amount of money delinquent on that date. It also found each violation to be a separate act of contempt.

(3) It found that, on the 19 dates set out, relator was able to pay the child support amounts due on those dates and that, on the day of the hearing, he was able to pay the amount of child support due.

(4) It contained a section entitled, "Criminal Contempt," in which it assessed 120 days' confinement for each of the 19 violations and ordered that the 19 120-day periods run and be satisfied concurrently.

(5) It contained a section entitled, "Civil Contempt," which ordered that, after relator had satisfied the punitive contempt confinement, he should thereafter be further confined until relator (a) paid Angie $3,675 and (b) paid $750 in attorney's fees to Angie.

On August 23, 2004, the trial court, citing Texas Family Code section 201.013(c),⁴ signed an order releasing relator, stating that he had been confined more than 72 hours. In the order, the trial court also set relator's appeal of the findings of the associate judge for September 10, 2004.

On September 10, 2004, the trial court held a hearing regarding relator's appeal of the associate judge's report. At the beginning of the hearing, a discussion of the notice of appeal occurred when Angie's attorney moved to dismiss the appeal on the ground that relator had not complied with Texas Family Code section 201.015 in that he had not set out the particular findings and conclusions of the associate judge to which the relator objected. Angie's counsel conceded, however, that relator's notice of appeal did object to the associate judge's failure to make any findings relative to relator's indigency.

In response, relator's counsel stated, "At the time we drew the document up we had never been forwarded a copy of any such [August 20, 2004] order. Only we had the magistrate's handwritten note in terms of the contempt. We did put in the document . . . there was no ruling on the question that he was indigent. . . . [I]n the proceeding below, we argued to the Associate Judge there is no doubt that he has not paid the support, but the question of indigency trumps the question of support."

The trial court ruled that the only issue before it in the appeal was relator's indigency defense, and, without objection from relator, the trial court restricted the hearing to that issue. At the conclusion of the hearing, the trial court announced from the bench,

This is my ruling. The finding of the Associate Judge is confirmed. I find that respondent did not adequately prove the elements of Section 157.008(b)(1),(2),(3),(4) [regarding indigency] and therefore Respondent is remanded to the custody of the Sheriff of Galveston County in accordance with the order from the hearing date of 8-19-04, all per order to be filed. Mr. Hale, you need to have an order to me by 5:00 o'clock today, a copy of which you need to fax to Mr. Griffin prior to faxing it to me for his review. Deputy, I'm ordering you to take Mr. Lausch into custody at this time.

Relator's counsel then asked the trial court if it could set a bond, pending "appeal," to which the trial court responded:

Well the order of the Court, if I'm remembering my reading correctly, was that he was to serve 120 days and thereafter he would be released upon the payment of some three thousand some odd dollars. So the order of the Court is that he must serve 120 days prior to release, and then at that point in time I will allow a bond to be made in the amount of thirty-seven hundred dollars.

On September 10, 2004, the trial court signed the "Order Affirming Associate Judge's Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment." The order stated in part,

On September 10, 2004, the Court heard DARRELL L. LAUSCH's Notice of Appeal of Associate Judge's Findings With Respect to Granting Judgment For Arrearage and Commitment. DARRELL L. LAUSCH's appeal is denied. The associate judge's findings and Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages and Commitment is affirmed. . . .

. . .

7. Findings

The Court finds that the findings of the associate judge are affirmed in all parts and respects. Further, the Order Holding DARRELL L. LAUSCH in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearage, and Commitment signed on August 19, 2004, a copy of which is attached hereto as Exhibit "A" and incorporated herein as though fully set out, is in all things approved and affirmed.

The Court further finds that on the hearing of DARRELL L. LAUSCH's Appeal, DARRELL L. LAUSCH failed and did not adequately prove the elements of Section 157.008(c)(1)(2) and/or (3) and/04 [sic] (4) and therefore, the Court ORDERS that DARRELL L. LAUSCH, is immediately remanded to the custody of the Sheriff of Galveston County, Texas in accordance with the Order of this Court dated August 19, 2004, a copy of which is attached hereto as Exhibit "A" and incorporated herein as though fully set out.

Exhibit A attached to the September 10, 2004 order exactly conformed with the order signed by the trial court on August 20, 2004, except that on the last page (a) the line to indicate the date signed was blank; (b) above the line for the presiding judge's signature, someone had drawn a straight line instead of Judge Yarbrough's signature; (c) the line for Frank A. Hale's signature for approval as to form was blank; and (d) the district clerk's file mark showed that the order was filed September 10, 2004, rather than August 20, 2004.

Pursuant to the September 10, 2004 order, the trial court ordered relator incarcerated. He brought this petition for writ of habeas corpus. Conditioned on his posting a suitable bond, we ordered relator released from custody, pending our final determination of his petition for habeas corpus relief.

Standard of Review

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex...