In re Office of the Attorney Gen.

• Decision Date: 08 March 2013
• Docket Number: No. 11–0255.,11–0255.
• Citation: 56 Tex. Sup. Ct. J. 360,422 S.W.3d 623
• Parties: In re The OFFICE OF the ATTORNEY GENERAL.
• Court: Texas Supreme Court

422 S.W.3d 623

56 Tex. Sup. Ct. J. 360

In re The OFFICE OF the ATTORNEY GENERAL.

No. 11–0255.

Supreme Court of Texas.

Argued Feb. 27, 2012.

Decided March 8, 2013.

Kenneth L. McAlister, Law Offices of Kenneth L. McAlister, Robley E. Sicard, Thomas M. Michel, Griffith Jay & Michel LLP, Fort Worth, TX, for Noble Ezukanma.

Jessica Hall Janicek, KoonsFuller, Southlake, TX, Laurie Denise Robinson, Robinson & Smart P.C., Arlington, TX, Rebecca Ann Tillery, KoonsFuller PC, Dallas, TX, for Njideka Lawreta Ezukanma.

Alicia G. Key, Deterrean Gamble, John B. Worley, Michael D. Becker, William J. “Bill” Cobb III, Office of the Attorney

General, Daniel T. Hodge, First Asst. Attorney General, Greg W. Abbott, Attorney General of Texas, David C. Mattax, Director of Defense Litigation, Office of the Attorney General, Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Kristofer S. Monson, Assistant Solicitor General, Austin, TX, Cynthia Dillard, Tarrant County Domestic, Bedford, TX, for The Office of the Attorney General.

Justice LEHRMANN delivered the opinion of the Court.

“The court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with ... evidence ... showing that the respondent is current in the payment of child support as ordered by the court.” Tex. Fam.Code § 157.162(d). We are called upon to interpret this section of the Texas Family Code, which provides a mechanism by which an obligor who has violated a child support order may avoid a contempt finding. We hold that this language is unambiguous and means what it says: an obligor must be current on court-ordered child support payments due at the time of the enforcement hearing, regardless of whether those payments have been pled in the motion for enforcement, in order to invoke section 157.162(d) to avoid a finding of contempt where contemptuous conduct has otherwise been properly pled and established. Holding otherwise would contravene the statute's plain language and allow a recalcitrant obligor to escape a valid contempt finding by paying only those payments pled in a motion to enforce while continuing to disobey the prior order before the enforcement hearing. We therefore hold that the trial court did not abuse its discretion in entering a contempt order in this case. We conditionally grant relief and instruct the court of appeals to vacate its judgment, thereby reinstating the trial court's contempt order.

I. Facts

Noble Ezukanma, M.D. (Noble) was ordered to pay $5,400 each month to Njideke Lawreta Ezukanma (Lawreta) for the support of their six children. Noble only made partial payments in the months of December 2007 through February 2008, and he failed to make any payment at all in March, April, and June of 2008, resulting in an arrearage of $23,044.78 on June 9, 2008. The Tarrant County Domestic Relations Office filed a motion to enforce the support order in June 2008.¹ The motion asserted six counts of contempt, specifically alleging each payment failure, the amount of any partial payments made, and the total outstanding arrearage as of June 9, 2008. In the motion, the Office requested that Noble be held in contempt for each of six violations of the support order and that the court recognize the total outstanding arrearage at the time of the hearing on the motion.

Although a hearing on the motion was initially set for the following month, it was not held until February 2009. In late June 2008, Noble paid off the entire pled arrearage with a lump sum payment. But after making this payment, Noble immediately reverted to making only partial payments during the remaining intervening months between the filing of the motion and the hearing. By the time the hearing was held in February 2009, Noble had accumulated a new arrearage of $28,656.56, which the trial court reduced to a money judgment. The trial court also held Noble in contempt for the failures to make timely child support payments that were due under the support order on March 1, 2008, April 1, 2008, and June 1, 2008, and sentenced him to serve 174 days in jail on the second and fourth weekends of every month.

Noble filed a petition for writ of mandamus in the court of appeals, arguing that section 157.162(d) of the Texas Family Code precluded a finding of contempt by the trial court. Section 157.162(d) provides:

The 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 § 157.162(d).² Noble argued that this provision prohibits a finding of contempt for missed payments alleged in the motion to enforce that, though untimely under the support order, had been satisfied prior to the hearing. In a divided decision, the court of appeals adopted this interpretation and held that Noble could invoke the statute at the hearing, despite the outstanding $28,656.56 arrearage, because he had become “current” on the missed payments for March, April, and June that were pled in the motion. The court granted mandamus and habeas corpus relief,³ ordering the trial court to vacate its contempt order. Both Lawreta and the Office of the Attorney General petitioned this Court for mandamus relief, arguing that the court of appeals abused its discretion in granting mandamus relief and seeking reinstatement of the trial court's contempt order.

II. Discussion

Child support collection is serious business; so much so that the federal government has enacted legislation requiring states to abide by certain mandates to help struggling parents obtain child support in order to receive federal funding. See42 U.S.C. §§ 654, 666 (2006) (called Title IV–D). ⁴ No less serious are the rights of those accused of contemptuously failing to pay child support, invoking due process protections when findings of contempt are sought. Recognizing the importance of both, the Legislature has carefully crafted a framework for ensuring compliance with child support orders through contempt and other enforcement mechanisms.

A. Contempt as a Child Support Enforcement Mechanism

One of the primary tools that child support enforcement agencies depend on to encourage obligors to timely pay child support is the contempt power of the court. The prevalence of this enforcement mechanism has its roots in the historical lineage of child-related orders, which were originally matters of equity, enforceable only by contempt rather than by damages. See Margaret M. Mahoney, The Enforcement of Child Custody Orders By Contempt Remedies, 68 U. Pitt. L.Rev.. 835, 843–44 (2007). Contempt is an inherent power of the court, Ex parte Gorena, 595 S.W.2d 841, 843 (Tex.1979) (orig. proceeding), and chapter 157 of the Family Code provides the statutory framework for utilizing this power as a mechanism to enforce child support orders and other final orders in family court proceedings. Chapter 157 provides for the filing of a motion to enforce requesting contempt and other relief, Tex. Fam.Code § 157.001, specifies what must be included in this request, id. § 157.002(b)(2), enumerates available affirmative defenses, id. § 157.008, and explains the procedures for a hearing on the motion, id. §§ 157.061–.066.

Upon finding an obligor in contempt, the trial court may, in its discretion, impose a sentence that is either civil or criminal, or both. See id. § 157.166 (discussing the required contents of an enforcement order). Civil contempt is prospective, involving measures to encourage a contemnor to pay child support arrearages, while criminal contempt is punitive, usually imposing jail time for past failures to pay. See In re Reece, 341 S.W.3d 360, 365 (Tex.2011). Chapter 157 also provides a third option: a court may find an obligor in contempt and impose a jail sentence, but suspend commitment and place the obligor on community supervision. Tex. Fam.Code § 157.165. The obligor may avoid incarceration and remain on community supervision so long as he or she complies with statutorily authorized conditions set by the trial court. Id. § 157.211. This third option is an extremely effective tool for the enforcement of child support because it (1) encourages obligors to pay to avoid serving their jail sentences, and (2) keeps them out of jail, thereby enabling them to work and avoid further arrearages, for so long as they comply with the court order. Significantly, utilization of this tool is dependent upon a finding of contempt.

A contempt order is void if it is beyond the power of the court or violates due process. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). If the trial court's contempt order in this case is not void, there was no abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.2001).

B. The Purging Provision in Section 157.162(d)

In 2007, the Legislature enacted Family Code section 157.162(d), a purging provision ⁵ that allows a child support obligor to escape a valid finding of contempt if the obligor demonstrates at the enforcement hearing that he or she is “current in the payment of child support as ordered by the court.” Absent the operation of section 157.162(d), an obligor could be held in contempt for failing to make payments in a timely fashion as required by the support order, regardless of the obligor's payment history since the filing of the motion to enforce. See Ex parte Stephens, 734 S.W.2d 761, 764 n. 5 (Tex.App.–Fort Worth 1987, orig. proceeding); In re Miller, 584 S.W.2d 907, 908 (Tex.Civ.App.–Dallas 1979, orig. proceeding); Ex parte Grothe, 581 S.W.2d 296, 298 (Tex.Civ.App.–Austin 1979, orig. proceeding); Ex parte Boyle, 545 S.W.2d 25, 27 (Tex.Civ.App.–Houston [1st Dist.] 1977, orig. proceeding) (“The fact that relator was not in arrears at the time of the hearing does not...