Opinion
No. 01-03-00809-CV
Opinion issued January 21, 2004.
Appeal from Original Proceeding on Petition for Writ of Habeas Corpus.
MEMORANDUM OPINION ON REHEARING
Relator, Jim Gawerc, requests that we rehear his petition for habeas corpus relief, and that we set aside our October 9, 2003 opinion denying habeas corpus relief and order of commitment. The motion for rehearing is granted, our October 9, 2003 opinion, order of commitment, and writ of commitment are withdrawn, and the following opinion is substituted for the withdrawn opinion. We deny habeas corpus relief.
Background
On July 20, 2001, as the culmination of a suit to modify the parent-child relationship, the trial court signed an order ("July 20, 2001 modification order") that ordered relator to pay to real party in interest, Ingrid Philipson, retroactive child support of $750, payable in three installments of $200 per month and a final installment of $150. Additionally, the trial court ordered relator to post a $50,000 bond to secure his prompt payment of his child support obligation.
On February 3, 2003, the trial court heard a motion for enforcement brought by Philipson, and, by order signed February 18, 2003, ("February 18, 2003 contempt order") found:
Although the order contained in the record bears a February 18, 2002 signature date, this is undoubtedly a clerical error because the same document recites the hearing date that preceded the order's execution as February 3, 2003.
Contempt Findings and Findings on Arrears
The Court finds that [relator] has failed to pay retroactive child support as ordered to Ingrid Philipson in the amounts and on the dates shown below:
Violation Date Due Date Paid Amount Due Amount Paid
1. 08/01/01 None $200 00 0 00
2. 09/01/01 None 200 00 0 00
3. 10/01/01 None 150 00 0 00
The Court finds that [relator] failed to post a bond in the amount of $50,000 and did not furnish such bond by July 20, 2001 to Ingrid Philipson at the offices of Earle S. Lilly, 1400 Post Oak Blvd, Suite 600, Houston, Texas 77056. . . .
The Court further finds that attorney's fees of $2,400 should be assessed against [relator].
Relief Granted. . . .
IT IS ORDERED that punishment for each separate violation is assessed at a fine of $0 00 and confinement in the county jail of Harris County, Texas for a period of 180 days.
IT IS THEREFORE ORDERED that [relator] is committed to the county jail of Harris County, Texas, for a period of 180 days for each separate violation enumerated above. . . .
However, in the same February 18, 2003 contempt order, the trial court suspended relator's commitment as follows:
IT IS ORDERED that commitment is suspended and Respondent placed on community supervision for a period of 180 days on the following terms and conditions:
1. IT IS ORDERED that Respondent, Jim Gawerc, pay $750.00, directly to Ingrid Philipson . . . before March 10, 2003 at 5 00 pm. . . .
2. IT IS ORDERED that Respondent post a cash or surety bond in the amount of $50,000 . . . on or before March 10, 2003 at 9 00 am. . . .
3. IT IS ORDERED that Respondent pay . . . as attorney's fees $2,400 00, taxed as costs, to Glen Lilly . . . by 5 00 pm. On March 10, 2003.
On June 5, 2003, Philipson filed a motion to revoke the suspension of relator's commitment, asserting that relator had violated the three conditions for the suspension of his commitment, in that he had "fail[ed] or refus[ed] to pay the total amount of child support, required attorney's fees, [and] posting of a bond when due." In the prayer of the motion to revoke suspension of commitment, Philipson requested that relator be issued a notice to appear and "show cause why the Court should not revoke [relator's] suspension of commitment and impose the sentence assessed in the February 18, 2003 court order." (Emphais added). Later, in Philipson's response to relator's habeas corpus petition before this Court, she stipulated that relator met the first condition of payment of the $750 retroactive child support, but she did not stipulate when he met it.
On August 4, 2003, after hearing, the trial court revoked the suspension of relator's commitment, finding that relator had failed to comply with the terms and conditions of the February 18, 2003 contempt order, in that relator had not posted the $50,000 bond and had not paid the $2,400 attorneys fees and costs to Philipson's attorney. With respect to the relief granted, the trial court stated in relevant part:
IT IS THEREFORE ORDERED that the suspension of Respondent['s] commitment to the Harris County Jail, originally imposed in the February 18, 2003 order and suspended therein conditioned on Respondent's strict compliance with certain terms and conditions of suspension of commitment, IS REVOKED, and Jim Gawerc, Respondent, is committed to the County Jail of Harris County, Texas, to serve, concurrently, a period of 180 days for each of 3 separate contempt violations, from the date of commitment and continuing thereafter, day to day.
(Emphasis added).
ANALYSIS July 20, 2001 Void Bond Order Argument
Relator asserted in his petition for habeas corpus relief that the order to post a bond to secure child support contained in the July 20, 2001 modification order is void because the trial court was without authority to issue it. He contends that he is wrongfully incarcerated for not obeying this void provision. This, however, overlooks the fact that in the February 18, 2003 contempt order, the trial court not only held relator violated the July 20, 2001 modification order by not posting the bond, but also by not timely paying each of three installments of retroactive child support. In the February 18, 2003 contempt order, the trial court assessed relator 180-days of confinement for not posting the bond, but also 180-days confinement for each of the three unpaid, retroactive child support payments. That relator later made the payment of retroactive child support to Philipson would not nullify the trial court's three 180-day sentences for not timely making the ordered payments. See Cadle Co. v. Lobinger, 50 S.W.3d 662, 667 (Tex. App.-Fort Worth 2001, pet. denied) ("In criminal contempt proceedings, the court punishes the contemnor for improper past acts, and no subsequent voluntary compliance can enable the contemnor to avoid punishment."). Relator does not challenge the retroactive child support order of the modification order. Therefore, even if we were to hold the bond provision of the modification order to be void, it would not help relator because it is undisputed that on three occasions, he violated that part of the modification order ordering retroactive child support payments, and that that part of the order is valid.
Point for Rehearing One
In his first point for rehearing, relator asks if in our October 9, 2003 opinion we erred
in remanding him to the custody of the sheriff to serve the criminal contempt sentences assessed in the February 18, 2002 [sic] contempt order for violating retroactive support, when the only sentences relator was serving pursuant to the trial court were those found in the August 4, 2003 commitment order which assesses no punishment for violating provisions of retroactive support.
Relator is right that the August 4, 2003 commitment order assesses no punishment for violating provisions of retroactive child support. However, it does reinstate three 180-day sentences assessed in the February 18, 2003 contempt order for not complying with the July 20, 2001 modification order. To determine that this is so, one has only to remember that the August 4, 2003 commitment order revoked the suspension of relator's commitment, "originally imposed in the February 18, 2003 order," and committed him to "serve concurrently, a period of 180 days for each of 3 separate contempt violations. . . ." (Emphasis added). The only "contempt violations" found by the trial court in its February 18, 2003 contempt order are the three, unpaid, retroactive child support payments (on 8/01/01-10/01/01), plus the fourth contempt violation — the failure to post a bond. Thus, in the August 4, 2003 order revoking suspension and for commitment, the "3 separate contempt violations" must refer to at least two of the failure-to-make-retroactive-child-support-payment contempt violations found in the February 18, 2003 contempt order, each of which carries a 180-day sentence as assessed by the trial court in the February 18, 2003 contempt order.
(Even if one of the "contempt violations" referred to was the failure to post a bond, the other two "contempt violations" would have to refer to two of the three failure-to-make-retroactive-child-support-payment "contempt violations" found by the trial court in its February 18, 2003 contempt order).
a. Effect of Placement of Commitment Language in August 4, 2003 Commitment Order Rather Than in September 18, 2003 Contempt Order
As a matter of due process, a person may not be imprisoned for contempt without a written judgment of contempt and a written order of commitment. Ex parte Puckitt, 322 S.W.2d 597 (Tex. 1959). In this case, the written order of contempt was the February 18, 2003 contempt order, and the written order of commitment was the August 4, 2003 commitment order. A commitment order can be included in the contempt judgment or stand as a separate document. Ex parte Crawford, 684 S.W.2d 124, 128 (Tex. App.-Houston [14th Dist.] no pet.) (citing Ex Parte Arapis, 306 S.W.2d 884, 886 (Tex. 1957)). There is no particular form required for a commitment order. Crawford, 684 S.W.2d at 128 (citing Ex parte Palmateer, 243 S.W.2d 160, 161) (Tex. 1951)). Whether they are contained in one or two documents, the contempt and commitment orders should be read together. Cf. Crawford 684 S.W.2d at 128 (Fourteenth Court of Appeals held that when commitment order is based on a finding of contempt and validity of commitment order is in question, commitment order must be read in conjunction with the contempt order.) When the February 18, 2003 contempt order and the August 4, 2003 commitment orders are read together, it is clear that the August 4, 2003 commitment order is reinstating three 180-day punitive contempt sentences ordered, but suspended, in the February 18, 2003 contempt order. It is also clear that at least two of those sentences relate to relator's failure to timely make the retroactive child support payments, as ordered in the July 20, 2001 modification order.
b. Effect of Section 157.166 of the Texas Family Code
(a) An enforcement order must include: (1) in ordinary and concise language the provisions of the order for which enforcement was requested; (2) the acts or omissions that are the subject of the order; (3) the manner of the respondent's noncompliance; and (4) the relief granted by the court. (b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt. Tex. FAM. CODE ANN. § 157.166(a),(b) (Vernon 2002).
Next, under this point for rehearing, relator argues that, statutorily, the August 4, 2003 commitment order cannot support incarceration for not making the retroactive child support payments because, contrary to section 157.166 of the Texas Family Code, the August 4, 2003 commitment order contains no findings pertaining to nonpayment of retroactive child support.
The February 18, 2003 contempt order had already made the necessary section 157.166 finding that relator had not complied with the July 20, 2001 modification order by not making the retroactive child support payments. Following the August 4, 2003 revocation hearing, the purpose of the August 4, 2003 order was to find the ways in which relator had not complied with the terms and conditions of suspension of commitment contained in the February 18, 2003 contempt order. See Ex parte Gonzales, 606 S.W.2d 5, 6 (Tex. App.-Amarillo 1980, orig. proceeding) (held when punishment has been suspended on condition of compliance with contempt order, trial court must afford contemnor a subsequent hearing to determine breach of the condition of suspension). Here, the trial court did this when it found that relator had not posted the $50,000 bond and had not paid the $2,400 attorney's fees and costs.
We overrule relator's point for rehearing one.
We refer to this as point for rehearing two because relator refers to it as such on page two of his motion for rehearing, although in the body of his motion for rehearing, at page seven, he refers to it as " c. Decision of Court of Appeals to reinstate punishment for retroactive payments violates Relator's due process rights."
Under this point for rehearing, relator asserts that this Court's October 9, 2003 opinion and order denying habeas corpus relief, without due process, imposed two additional 180-day sentences on relator for failing to pay retroactive child support.
We dismiss this point for rehearing two as moot because we have withdrawn our October 9, 2003 opinion, order of commitment, and writ of commitment.
Conclusion
We deny relator's petition for habeas corpus relief and remand him to the custody of the Sheriff.