In re Newby

• Decision Date: 28 June 2012
• Docket Number: No. 02–12–00145–CV.,02–12–00145–CV.
• Parties: In re Mark Lee NEWBY, Relator.
• Court: Texas Court of Appeals

370 S.W.3d 463

In re Mark Lee NEWBY, Relator.

No. 02–12–00145–CV.

Court of Appeals of Texas,

Fort Worth.

June 6, 2012.

Rehearing Overruled June 28, 2012.

Mark Lee Newby, Fort Worth, TX, pro se.

Mark J. Rosenfield, Loe, Warren, Rosenfield, Kaitcher, Hibbs, Windsor, Lawrence & Wolffarth, P.C., Fort Worth, TX, for Real Party in Interest.

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

OPINION

PER CURIAM.

In this petition for writ of habeas corpus, relator Mark Lee Newby contends that the trial court's order finding him in criminal and civil contempt and committing him to the Tarrant County Jail for at least twenty-four months is void. We hold that the order is void in part and modify it as set forth below.

Background Facts

The underlying case is a divorce enforcement suit. Real party in interest (RPI) Dianne Marie Uhl filed two motions for contempt and enforcement in the trial court: one relating to unpaid child support and health care insurance reimbursements and the other relating to violations of a protective order. In the child support enforcement motion, RPI set forth sixteen alleged counts for failure to pay child support and health care premium reimbursements, alleged that relator would likely miss additional payments while the motion was pending, and asked that the trial court hold relator in both civil and criminal contempt “for a determinative period of 180 consecutive days, day to day, for each of his violations.” [Emphasis added.]

The trial court heard both motions on March 9, 2012 and found relator guilty of missing sixteen child support payments and sixteen health care expense reimbursement payments. The trial court also found relator guilty of fifty violations of the protective order. The trial court sentenced relator to twenty-four months' confinement as criminal contempt for the violations. The trial court also ordered that relator remain incarcerated thereafter until he purged himself of civil contempt by performing the following: (1) pay RPI all confirmed child support and health care expense reimbursement arrearages in the amount of $15,426.01 (the past due amounts for all nineteen alleged failures to pay child support and all nineteen alleged failures to reimburse health care insurance expenses,¹ plus six percent statutory simple interest), (2) pay RPI's attorney $11,421 for attorney's fees incurred in prosecuting both enforcement and contempt actions (the child support and protective order), (3) timely pay each monthly payment of $1,500 in child support as set forth in the decree beginning March 9, 2012, and (4) timely pay each monthly payment of $93.02 for the child's health care insurance beginning March 9, 2012.

Relator was committed to the Tarrant County Jail that same day. He filed this petition for writ of habeas corpus challenging the trial court's contempt order.

Right to Trial by Jury—Criminal Contempt

In his first and second issues, relator contends that the trial court's order sentencing him to twenty-four months' confinement violated his right to a trial by jury because he did not waive that right.

Although an absolute right to trial by jury in contempt proceedings does not exist, an alleged contemnor possesses such a right in criminal contempt cases in which the punishment assessed is “serious.” See Muniz v. Hoffman, 422 U.S. 454, 475–77, 95 S.Ct. 2178, 2190–91, 45 L.Ed.2d 319 (1975); Ex parte Griffin, 682 S.W.2d 261, 262 (Tex.1984) (orig. proceeding); In re McGonagill, No. 02–07–00034–CV, 2007 WL 704888, at *2 (Tex.App.-Fort Worth Mar. 5, 2007, orig. proceeding) (mem. op.). Punishment assessed for criminal contempt beyond 180 days is considered “serious” and may not be assessed unless there was a jury trial or a jury waiver. Ex parte Sproull, 815 S.W.2d 250, 250 (Tex.1991) (orig. proceeding); McGonagill, 2007 WL 704888, at *2.Section 21.002(b) of the Texas Government Code provides that punishment for a single act of contempt of court is a fine of not more than $500 or confinement in the county jail for not more than six months or both. Tex. Gov't Code Ann. § 21.002(b) (West 2004). Punishment within these limits is characterized as “petty.” See Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976) (orig. proceeding); McGonagill, 2007 WL 704888, at *2.

Even when the offenses are separate and the sentence for each act of contempt is less than six months, however, the alleged contemnor is nevertheless entitled to a jury trial if the sentences are aggregated to run consecutively, so as to result in punishment exceeding six months. See Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex.1986) (orig. proceeding); McGonagill, 2007 WL 704888, at *2. When there is a right to a jury trial, the record must show that the court informed the alleged contemnor of the right and that the contemnor affirmatively waived that right. McGonagill, 2007 WL 704888, at *2. A silent record will yield no presumption of waiver. Sproull, 815 S.W.2d at 250;McGonagill, 2007 WL 704888, at *2. A contempt sentence in excess of six months that is imposed in violation of the contemnor's right to a jury trial is void. McGonagill, 2007 WL 704888, at *2.

Although the order finding relator in contempt recites that relator waived his Fifth Amendment rights after being admonished, it does not state that he waived his right to trial by jury. Moreover, the reporter's record from the hearing on the contempt motions shows that although the trial court did inform relator of his right to a trial by jury, it did so midway through the hearing, after RPI had put on her evidence and immediately before relator was to testify. See In re Jones, No. 07–07–00202–CV, 2007 WL 1585146, at *1 (Tex.App.-Amarillo May 25, 2007, orig. proceeding and order) (concluding that, despite recitation of waiver of right to jury trial in contempt order, concession by RPI that relator did not waive his right “prior to commencement of the contempt proceeding” controlled). Additionally, the trial court did not ask relator whether he specifically waived his right to trial by jury, and relator only clearly communicated his waiver of his Fifth Amendment right to testify about the child support allegations. Accordingly, we conclude and hold that the record shows that the trial court sentenced relator to greater than six months' confinement in violation of his right to a jury trial and that the criminal contempt part of the order is therefore void.²See, e.g., McGonagill, 2007 WL 704888, at *2.³ We sustain his first and second issues.

Civil Contempt

Relator also challenges the coercive civil contempt part of the order on several grounds.

Burden of proof

Relator contends in his third issue that the trial court used a clear and convincing evidence standard to weigh the evidence instead of a beyond a reasonable doubt standard. Relator has not referred to any part of the record, and we have found none, supporting this conclusion. We overrule his third issue.

Trial Judge's Comment

Relator complains in his sixth issue about the trial judge's stating, “It's not the truth,” in response to relator's assertion through his counsel that he had responded to discovery after RPI had presented evidence to the contrary. According to relator, the comment runs afoul of article 38.05 of the code of criminal procedure, which prohibits a judge from commenting on the weight of evidence in ruling on its admissibility. Tex.Code Crim. Proc. Ann. art. 38.05 (West 1979). However, here, whether relator was telling the truth when he told his lawyer at the enforcement hearing that he had responded to RPI's discovery requests goes to the heart of the trial court's admissibility ruling. SeeTex.R. Civ. P. 193.6; White v. Perez, No. 02–09–00251–CV, 2010 WL 87469, at *1–2 (Tex.App.-Fort Worth Jan. 7, 2010, pet. denied)(mem. op.). Moreover, the trial judge's comments were not made before a jury who might have been influenced by the comment. See Strong v. State, 138 S.W.3d 546, 553 (Tex.App.-Corpus Christi 2004, no pet.). Accordingly, we overrule relator's sixth issue.

Ability to Pay

In his ninth issue, relator contends that he was not afforded a meaningful opportunity to explain his behavior or present defenses on his behalf. In the argument section of his brief, he also claims that he is unable to pay the amounts the trial court ordered him to pay to purge his contempt, and he specifically complains about having to pay the entire arrearage of $15,426.01 past due child support. Because relator never pled the affirmative defense of inability to pay in relation to the child support enforcement motion, he has failed to preserve it. SeeTex. Fam.Code Ann. § 157.008(c) (West 2008); In re J.M.M., 80 S.W.3d 232, 251 (Tex.App.-Fort Worth 2002, pet. denied), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex.2002). Moreover, the trial court found that relator had either failed or refused to answer discovery, despite apparently representing to his court-appointed counsel that he had answered discovery before the trial court appointed her. Thus, the trial court prohibited relator from presenting evidence of his inability to pay child support in the amount ordered in relation to the charges of civil contempt. SeeTex.R. Civ. P. 193.6; White, 2010 WL 87469, at *1–2 (holding that because rule of civil procedure 193.6's exclusion of evidence requirement for failure to answer discovery is automatic absent a showing of good cause or lack of prejudice, trial court's imposition of such a sanction is not reviewed under TransAmerican analysis).⁴ We overrule relator's ninth issue.

Modification of Amount Due to Purge Civil Contempt

In his tenth and eleventh issues, relator challenges the civil coercive contempt part of the order that requires him to pay $11,421 in attorney's fees and $15,426.01 in past due child support and health care reimbursement fees to purge himself of contempt.

RPI alleged at the hearing that relator failed to pay the following child support payments:

• September–November...