Medearis v. Medearis
| Decision Date | 01 November 1972 |
| Docket Number | No. 11949,11949 |
| Citation | 487 S.W.2d 198 |
| Parties | James W. MEDEARIS, Appellant, v. Mildred MEDEARIS, Appellee. |
| Court | Texas Court of Appeals |
Charles W. Richards, Austin, for appellant.
Paul R. Davis, Jr., Coffee, Goldston & Bradshaw, Austin, for appellee.
O'QUINN, Justice.
From judgment in district court entered in a divorce action, appellant brings this appeal assigning error in division made of the community property and in action of the trial court holding appellant in contempt for not complying with an order to surrender possession of the homestead to appellee pending appeal.
Mildred Medearis, appellee, sued James W. Medearis, appellant, for divorce and property settlement in June of 1971. After trial before the court in October, judgment was entered December 3, 1971, granting appellee a divorce from appellant and making division of the community real and personal property.
The court awarded the homestead, valued at between $10,500 and $11,500, to appellee, with the burden of paying ad valorem taxes and a paving assessment amounting to about $1,500, and subject to judgment in favor of appellant in the sum of $5,000. The trial court ordered appellant to vacate the homestead by noon of December 15, 1971, and to deliver exclusive possession to appellee, such possession to 'remain effective notwithstanding any appeal . . . and notwithtanding any supersedeas bond. . . .'
Appellant refused to vacate the homestead as ordered, and appellee filed her complaint seeking to have appellant held in contempt. After hearing late in January of 1972, the trial court found appellant in contempt of the order to deliver possession of the homestead and assessed punishment at confinement for three days and a find of $100. To permit test of the order, the trial court postponed signing the judgment of contempt, stating that unless restrained by an appellate court the trial judge would enforce the order.
Appellant sought relief before the Supreme Court of Texas, contending that the trial court was without power to hold appellant in contempt for refusing to comply with the order to surrender possession of the homestead because appellant had perfected his appeal to the Court of Civil Appeals and had filed a supersedeas bond having the effect of suspending in its entirety the trial court's judgment of December 3. The Supreme Court overruled appellant's motion for leave to file his petition for writ of prohibition.
Thereafter appellant complied with the order and delivered possession of the homestead to appellee as directed by the trial court. The record does not disclose whether as a condition of compliance, or after compliance, with the order, appellant was relieved by the trial court from payment of the fine and from serving any part of the confinement. There is no remedy by appeal in contempt proceedings, and the only remedy to review the proceedings where relator is in custody is by habeas corpus. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); Ex parte Cardwell,416 S.W.2d 382, 384 (Tex.Sup.1967).
Appellee contended before the Supreme Court and contends in this appeal that the order of the district court, found in the judgment of December 3, 1971, directing appellant to deliver possession of the homestead to appellee, was not a final adjudication of the rights of the parties, but was a temporary order respecting property and persons in a divorce proceeding. In support of this view appellee relies on Section 3.58 of the Texas Family Code, V.T.C.A. (formerly Article 4636, Vernon's Anno.Civ.Sts.) and a body of case law including Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 943 (1961). The trial court considered the order one of a temporary nature and stated in the judgment that '. . . the Court has the power to determine which of the partners to a marriage should have possession of a family residence despite the suspension of the execution of a judgment of divorce.'
We conclude that the error urged by appellant as to the contempt order is not properly before this Court and that to render a decision on the issues raised under the point would constitute an advisory opinion. Texas courts are not authorized by the State Constitution to render such opinions. United Service Life Insurance Company v. Delaney, 396 S.W.2d 855, 863 (Tex.Sup.1965).
Appellant further contends that the trial court erred in making an equal division of the community property. The basis for this contention is that the trial court did not consider 'the disparity between the relative earning capacities of Appellee and Appellant.' Appellant argues that because he is six years older than appellee...
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