In re Surgent
| Citation | 133 S.W.3d 744 |
| Decision Date | 06 November 2003 |
| Docket Number | No. 13-03-484-CV.,13-03-484-CV. |
| Parties | In re Richard Edmund SURGENT. |
| Court | Court of Appeals of Texas |
Frederick K. Wilson, Houston, for Relator.
Lawrence P. Gwin, Jr., Timothy Sloan, Bay City, for Real Party In Interest.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
This original proceeding arises from a highly-disputed divorce proceeding. In several orders, the trial court found relator, Richard Surgent, to be in contempt of court for failure to pay spousal support and failure to disclose his assets. The court ordered his incarceration. Relator contends he is being unlawfully incarcerated. We agree and grant relator's petition for writ of habeas corpus.1
On April 15, 1998, Cynthia Surgent, relator's wife, filed for divorce. On May 20, 1998, the court signed an agreed temporary order, which required relator to pay temporary spousal support in the amount of $4,500 per month and prepare a sworn inventory and appraisement of all separate and community property, among other things.
On December 17, 1999, after a hearing on Cynthia's motion to enforce the temporary order, the trial court issued an order finding relator missed seven payments of temporary spousal support despite being financially able to make the payments. The court found relator in contempt for each separate violation of the temporary order and placed relator on community supervision for 180 days on various terms and conditions. Among those terms and conditions was the requirement that relator pay a $5,000 cash bond and appear in court on January 3, 2000 for a compliance hearing.
When relator failed to appear in court on January 3, the trial court revoked the cash bond. On January 6, 2000, the court issued a writ of attachment and a capias for relator's arrest. Relator was arrested in Wayne County, Michigan and delivered to the Matagorda County jail on February 2, 2000. Relator filed an application for writ of habeas corpus in the trial court on February 3, 2000, which was denied.
The trial court held a hearing on February 7 and 8. During the hearing, the court found relator had "ignor[ed] the Court's orders on disclosures." It conditioned relator's release from imprisonment on compliance with discovery unless the parties reached a full settlement and the divorce was made final.
On February 15, 2000, relator filed a petition for writ of habeas corpus to this Court, which we denied on February 22. See In re Surgent, No. 13-00-101-CV (Tex.App.-Corpus Christi Feb. 22, 2000, orig. proceeding).
On February 17, 2000, the trial court held another hearing on the application for writ of habeas corpus.2 The court issued an order dated February 21 in which it made numerous findings, including that relator had made arrangements to flee the county and jurisdiction of the court and that he obstructed justice by failing to submit an inventory of his property in violation of the court's order. The court set bond in the amount of his unpaid obligations to the court and his wife and conditioned his release on the following terms:
[Relator] is ordered to comply fully to the satisfaction of this court with all issued discovery in this case and with the court's order for a complete inventory of all property including beneficial interests, trusts and interests held in the hands of third parties domestic and off-shore to which [relator] has made any contribution, in which he has held any office or interest, or from which he has a right, vested or contingent, past, present or future to receive any benefit.
Relator filed a petition for writ of habeas corpus to the Supreme Court of Texas. The Court denied the petition on February 28, 2000. See In re Surgent, No. 00-0176 .
On March 16, 2000, the parties entered into a mediated settlement agreement. On satisfaction of various conditions, the parties would request the court to change relator's cash bond to a personal recognizance bond.3
On February 22, 2001, the trial court held a hearing on yet another motion for contempt.4 The court stated:
He's in jail. If I hold him in contempt again, what more can I do?
...
I think we are here because Dr. Surgent hasn't complied with the orders of the Court.... [U]nless the Court can come up with a more coercive or a different penalty other than jail for contempt, then I think we're just going to have to wait it out a little while longer.
The court ultimately took the matter under advisement pending submission of additional evidence.
On November 6, 2001, the court found, among other things, relator had continuously refused to comply with the court's order to provide an inventory of property and that, despite having the ability to do so, relator had refused to comply with the requirements for his release. The court concluded the "coercive" incarceration had been insufficient to produce compliance. The court denied relator's motion for reduction of bond or release from jail. The court ordered relator's compliance with discovery and imposed monetary sanctions on relator.
In his petition for writ of habeas corpus, relator challenges the jurisdiction of the trial court over the entire divorce proceeding. Alternatively, relator raises nine issues challenging the validity of the various orders of commitment. In those nine issues, relator contends his continued incarceration from January 24, 2000 until the present is a violation of his due process rights, the various orders resulting in his continued incarceration are void, and he received ineffective assistance of counsel during his criminal contempt proceedings.5
The purpose of a writ of habeas corpus in civil matters is to command the release of a person who is incarcerated "by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case." Tex. Gov't Code Ann. § 22.221(d) (Vernon Supp. 2003). We review a petition for writ of habeas corpus to determine whether the order of commitment was void, either because it was beyond the power of the court or because the contemnor was not afforded due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 . Our purpose is not to determine the guilt or innocence of the contemnor, but only to determine whether the contemnor has been unlawfully imprisoned. Ex parte Gordon, 584 S.W.2d 686, 688 . If the commitment order is void, the confinement is unlawful and contemnor is entitled to release. Id.
We address first relator's challenge to the trial court's jurisdiction over the case. See Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex.Crim.App.2001); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Relator contends the trial court lacked subject matter jurisdiction over the entire divorce action because, at the time his wife filed for divorce, an automatic stay was in place pursuant to chapter 11, section 362 of the United States Code. See 11 U.S.C. § 362 (2003). According to relator, this stay precluded the commencement or continuation of the divorce proceeding. On this basis, relator urges this Court to dismiss the divorce action for lack of jurisdiction and find all judgments of contempt void.
Section 362(a)(1) states in pertinent part:
(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, ... operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.
11 U.S.C. § 362(a)(1). A claim is defined as:
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
11 U.S.C. § 101(5) (2003).
Various bankruptcy courts have stated that the automatic stay provision in section 362(a)(1) does not apply to divorce petitions. See, e.g., In re Rook, 102 B.R. 490, 492 (E.D.Va.1989) (), aff'd, 929 F.2d 694 (4th Cir.1991); In re Schock, 37 B.R. 399, 400 (D.N.D.1984) (); In re Cunningham, 9 B.R. 70, 71 (D.N.M.1981) (). The courts reasoned that a divorce petition is not a "claim" as used in section 362(a)(1) and defined in section 101(4). In re Cunningham, 9 B.R. at 71; In re Schock, 37 B.R. at 400 (). The courts also relied on well-settled law that the subject matter of domestic relations falls within the province of state law. In re Cunningham, 9 B.R. at 71 (citing Barber v. Barber, 62 U.S. 582, 21 How. 582, 16 L.Ed. 226 (1859)); c.f. In re Universal Profile, Inc., 6 B.R. 194, 196 (N.D.Ga.1980) (...
To continue reading
Request your trial