In re Small, No. 14-08-01075-CV (Tex. App. 2/26/2009)
| Decision Date | 26 February 2009 |
| Docket Number | No. 14-08-01075-CV.,14-08-01075-CV. |
| Parties | IN RE JOHN W. SMALL, Relator. |
| Court | Texas Court of Appeals |
Petition for Writ of Mandamus Denied.
Panel consists of Justices YATES, ANDERSON, and BOYCE.
On November 25, 2008, relator, John W. Small, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Mary Nell Crapitto, presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster. We deny the petition for writ of mandamus.
In April 2005, a jury found that relator and McMaster had entered a common law marriage on December 25, 1991. On May 17, 2005, the trial court entered an interlocutory judgment adopting the jury's finding. On November 1, 2005, after holding hearings on July 20, 2005 and September 12, 2005, the trial court signed an order directing relator to pay McMaster monthly temporary support in the amount of $4,000.00.
On March 8, 2006, the trial court held a hearing on McMaster's first motion for enforcement of temporary spousal support. On April 20, 2006, the trial court signed an order, finding relator in contempt for failing to pay temporary support from November 1, 2005 through March 1, 2006.
On May 1, 2006, relator filed a petition for writ of mandamus in this court, requesting that we direct the trial court to deny any motion for enforcement of temporary support filed by McMaster, reverse its April 20, 2006 contempt and commitment order, and modify the November 1, 2005 order for temporary support. On June 1, 2006, this court denied relator's petition for writ of mandamus.
In October 2007, the trial court held a second jury trial on issues of community property. The jury made findings regarding which properties were community property, relator's separate property, or third party property, and findings regarding the value of the community property. The jury further found that relator had committed fraud with respect to the community property rights of McMaster. A final judgment has not been entered on the jury findings. On October 26, 2007, the trial court granted McMaster's motion for appointment of joint receivers. On November 8, 2007, relator filed for bankruptcy.1
On October 29, 2008, the trial court held a hearing on McMaster's fifth motion to enforce in which McMaster asked the trial court to direct relator to pay the $20,000 in arrears previously ordered on April 20, 2006, and $124,000 in arrears through October 1, 2008. On October 31, 2008, the trial court entered an order, finding that relator was able to pay temporary monthly spousal support in the amount of $4,000.00 from April 1, 2006 through October 1, 2008, and is in arrears in the amount of $ 124,000.00 for that period. The trial court found relator in contempt for each violation and assessed confinement in Galveston County jail for 179 days, but probated the sentence for one year provided that relator paid the $124,000.00 in arrears in four installments of $31,000.00 each on or before December 1, 2008, January 3, 2009, February 2, 2009, and March 2, 2009. The trial court also assessed attorney's fees and costs in the amount of $8,694.15 against relator and directed that he pay such amount on or before March 2, 2009. The trial court further ordered relator to pay the $20,000.00 in arrears, as directed in the April 20, 2006 contempt order, and $25,000.00 in attorney's fees, as directed in the November 1, 2005 order, on or before March 2, 2009. We stayed the October 31, 2008 contempt order.
In his petition, relator claims he was denied due process because he was not allowed to put on his defenses to McMaster's motion to enforce, he is not financially able to pay the court-ordered temporary spousal support, and, alternatively, the November 1, 2005 order awarding temporary spousal support is void.
Because relator is not restrained, petition for writ of mandamus, rather than habeas corpus, is relator's only possible relief. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig. proceeding) (per curiam). To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court clearly abuses its discretion if 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). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). Therefore, the relator must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court's decision. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).
Section 6.502 provides for temporary support while a suit for dissolution of a marriage is pending. Tex. Fam. Code Ann. § 6.502(a)(2). Generally, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period until he complies with the order. Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding). An order requiring temporary support payments is enforceable by contempt. Id.
A contempt order is void if the evidence offered at the hearing conclusively establishes that, at the time of the contempt hearing, the relator did not have, and had no source from which he might reasonably be expected to obtain, the amount of the arrears. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding). The relator must be able to perform the order of the court; if his inability is conclusively shown, the trial court has no power to order the coercive imprisonment. Id.; see also Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948) (). Relator bears the burden "of showing that it was impossible for him to pay the sums of money required to be paid under the order." Ex parte Williams, 469 S.W.2d 449, 452 (Tex. Civ. App.-Beaumont 1971, orig. proceeding).
Relator contends the trial court deprived him of his due process right to present evidence of his inability to pay due to a bankruptcy court order prohibiting payment of outside claims as a defense to the contempt. On February 15, 2008, the bankruptcy court signed an order allowing payments that are paid from relator's future earnings, but not from the property of the bankruptcy estate. When relator offered a certified copy of the bankruptcy court's order into evidence, the trial court sustained McMaster's objection based on Rule 902(10)(a) of the Texas Rules of Evidence because she had not been provided a copy of the order 14 days prior to the hearing. Tex. R. Evid. 902(10)(a). However, Rule 902(10) only applies to business records. See, e.g., Trantham v. Isaacks, 218 S.W.3d 750, 755 (Tex. App.-Fort Worth 2007, pet. denied), cert. denied, __ U.S. __, 128 S. Ct. 340 (2007); Sharp v. State, 210 S.W.3d 835, 840 (Tex. App.-Amarillo 2006, no pet.); Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 191 (Tex. App.-Corpus Christi 1989, no writ). Here, relator was attempting to introduce a certified copy of the bankruptcy court's order, as provided in Rule 902(4), which has no 14-day requirement. Tex. R. Evid. 902(4); Sharp, 210 S.W.3d at 840; Sims v. State, 783 S.W.2d 786, 789 (Tex. App.-Houston [1st Dist.] 1990, no pet.).
Although the trial court erroneously refused to admit the bankruptcy court's order into evidence, relator testified, without objection, about the effects of that order. Relator testified he is a debtor in possession, with the property under the control of the bankruptcy trustee. Relator explained, Relator also testified the bankruptcy court's order prohibits him from paying any spousal support except from his future earnings.
Relator also complains the trial court prohibited him from questioning his son, Robert Small, about his ability to help relator pay the temporary support. However, Small testified, without objection, he does not have the money to pay the temporary support. Relator similarly testified his son is not in a position to lend him money to pay the support and his attempts to borrow from his son have been unsuccessful.
Relator further complains the trial court's refusal to allow him to question his son about any property available for him to convert in order to pay the temporary support. While this line of questioning may have been relevant to the issue of relator's ability to pay, as explained below, the...
To continue reading
Request your trial