In Re Noble Ezukanma Relator
| Decision Date | 17 November 2010 |
| Docket Number | NO. 2-09-464-CV,2-09-464-CV |
| Parties | IN RE NOBLE EZUKANMA RELATOR |
| Court | Texas Court of Appeals |
ORIGINAL PROCEEDING
OPINION
Relator Noble Ezukanma filed this petition for writ of mandamus and petition for writ of habeas corpus challenging the respondent trial court's February 12, 2009 contempt order. That order holds Noble in contempt for failure to pay child support for his six children during the months of March, April, and June 2008 and orders him confined on the second and fourth weekends of each month for a total of one hundred seventy-four days. We conditionally grant mandamus relief.
After Noble and real party in interest, Lawreta Njideka Ezukanma, were divorced the trial court ordered Noble, in a subsequent suit to modify the parent-child relationship, to pay Lawreta $5,400 per month in child support on the first day of each month. In June 2008, the Tarrant County Domestic Relations Office IV-D Child Support Monitoring Program (DRO) filed a Motion to Enforce By Contempt asking that Noble be held in contempt for failing to make the ordered payments for March 1, April 1, and June 1, 2008. The motion also requested that the trial court hold Noble in contempt for partially and untimely paying the December 1, 2007 and January 1 and February 1, 2008 payments. The DRO alleged that as of June 9, 2008, Noble's total cumulative arrearage was $23,044.78. The DRO also sought to hold Noble in contempt for "any future failure to make child support payments which accrue as of the date of hearing" on the motion, specifically listing the June through December 2008 payments.
Noble responded to the DRO's motion by filing a motion to modify the parent-child relationship, in which he moved the trial court to reduce his child support payments because of "changed circumstances." At a hearing in February 2009 on both the motion to enforce and motion to modify, Lawreta testified that as of September 1, 2008, Noble had paid all child support due up to that time in full, including the payments for March 1, April 1, and June 1, 2008. Her payment history exhibit that the trial court admitted confirmed this testimony. However, the paymenthistory also showed that Noble had accrued a new arrearage on payments due in September 2008 through February 2009.
The trial court denied Noble's requested child support reduction, 1 found Noble $28,656.58 in arrears (for the September 2008 through February 2009 payments), found that Noble willfully and intentionally failed to obey the trial court's child support order by failing to make payments on March 1, April 1, and June 1, 2008, held Noble in contempt for each of these violations, and sentenced him to serve 180 days' confinement for each violation to be served concurrently.
Noble filed a motion for reconsideration of the contempt order, in which he contended that if he were confined for 180 continuous days he would not be able to support his children; he asked the trial court to modify its order of confinement to either reduce the sentence or to allow the sentence to be served at times that would not interfere with his being able to work. The trial court's order on reconsideration (1) grants judgment for Lawreta for the arrearage, (2) holds Noble in contempt of court for and (3) orders Noble to serve 174 calendar days in jail on the second and fourth weekends of each month. Because Noble is confined for part of the month but not each day of the month, he filed both a petition for writ of mandamus and petition for habeas corpus. See In re Long, 984 S.W.2d 623, 625 (Tex. 1999); In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 916 (Tex. App.—Fort Worth 2007, orig. proceeding). He has not filed a motion for temporary relief, and we have not granted any. See Tex. R. App. P. 52.10.
Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).
A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court could reasonably have reached only one decision and that the trial court's decision is arbitrary and unreasonable. Id. at 839-40. This burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). We give deference to a trial court's factual determinations, but we review the trial court's legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A trial court abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dept of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex. 2009) (orig. proceeding); Walker, 827 S.W.2d at 840.
Contempt orders are not reviewable by appeal; therefore, if a trial court abuses its discretion by holding someone in contempt, there is no adequate remedy by appeal, and the second prong of mandamus review is satisfied. In re Office of Attorney Gen., 215 S.W.3d at 915-16.
In a single issue, Noble contends that the trial court abused its discretion by holding him in contempt and sentencing him to jail for failing to pay child support for March 1, April 1, and June 1, 2008, because he had made the payments for those months before the February 2009 hearing on the motion to enforce. According to Noble, section 157.162(d) of the family code provides that a trial court may not hold a person in contempt for the failure to make specified child support payments if that person has made those payments in full by the time of the hearing on the motion to enforce. Thus, Noble contends that the trial court's contempt order is void.
In an original proceeding challenging a trial court's contempt order, the relator bears the burden of showing that the order is void. See In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (orig. proceeding). 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. Id. A contempt order deprives a relator of due process and is void if it exceeds a statutory limitation on contempt. See Ex parte Gerdes, 228 S.W.3d 711, 713 (Tex. App.—Corpus Christi 2006, orig. proceeding); Gonzalez v. State, 187 S.W.3d 166, 171-72 (Tex. App.—Waco 2006, orig. proceeding); cf. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) ().
Section 157.162(d) of the family code provides that "[t]he court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with a copy of the payment record or other evidence satisfactory to the court showing that the respondent is current in the payment of child support as ordered by the court." Tex. Fam. Code Ann. § 157.162(d) (Vernon Supp. 2010). Lawreta and the Attorney General contend that section 157.162(d) precludes a trial court from finding a person in contempt for failure to pay child support only if that person is current with all child support payments at the time of a hearing on a motion to enforce, not just those payments for which the movant requested that the person be held in contempt. In other words, Lawreta and the Attorney General contend that even though Noble made the March 1, April 1, and June 1, 2008 child support payments before the February 2009 hearing, because he did not make them timely on the dates they were due, "as ordered by the court"—and because he had a new arrearage by the time of the hearing—section 157.162(d) did not prohibit the trial court from holding Noble in contempt for those payments.
Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the legislature's intent as expressed by the plain and common meaning of the statute's words. Tex. Gov't Code Ann. § 312.002 (Vernon 2005); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007); In re C. A.P., Jr., 233 S.W.3d 896, 900 (Tex. App.—Fort Worth 2008, no pet.). We begin with the statute's plain language because we assume that the legislature tried to say what it meant and, thus, that its words are the surest guide to its intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); In re C.A.P., 233 S.W.3d at 900. In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); In re C.A.P., 233 S.W.3d at 900. We may also consider, among other things, the statute's objectives; legislative history; common law, former law, and similar provisions; and the consequences of the statutory construction. Tex. Gov't Code Ann. § 311.023(1)-(7) (Vernon 2005); In re C.A.P., 233 S.W.3d at 900.
Every word of a statute must be presumed to have been used for a purpose. See Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998); Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); In re C.A.P., 233 S.W.3d at 900. Likewise, every word excluded from a statute must also be presumed tohave been excluded for a purpose. Quick, 7...
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