In re Clark

Full title: IN RE LARRY CLARK

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 31, 2004

No. 10-03-00037-CV (Tex. App. Mar. 31, 2004)

Opinion

No. 10-03-00037-CV.

Opinion delivered and filed March 31, 2004.

Original Proceeding.

Petition for writ of mandamus denied.

Nita Fanning, Attorney at Law, Waco, TX, for appellant/relator.

Stephen N. Smith, Martin, Showers, Smith McDonald, Hillsboro, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA².

2 This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

This mandamus proceeding arises from the enforcement of a child-support order by contempt. Larry Clark, Relator, contends that Respondent, the Hon. F.B. (Bob) McGregor, Jr., Judge of the 66th District Court of Hill County, Texas, lacked subject-matter and personal jurisdiction, and that the child-support order was unenforceably vague. We deny the petition.

Clark married the Real Party in Interest, Anna Marie Troxell, formerly Anna Marie Clark, in 1983. In February, 1984, Troxell gave birth to a daughter, B.A.C. In September, 1984, Clark and Troxell were divorced. The trial court appointed Troxell managing conservator of B.A.C. and ordered Clark to pay child support to Troxell. In 1988 or 1989, B.A.C. went to live with Troxell's father, Royce Gene Daily. In 1998, the court appointed Daily managing conservator of B.A.C. and ordered Clark to pay child support to Daily.

In 2002, Troxell filed a motion for enforcement of the child-support order. Troxell sought only child-support arrearages that accrued before the appointment of Daily as managing conservator. From the time of the divorce in 1984 until the modification of conservatorship in 1998, Clark had made two payments, totaling $120, toward the approximately $23,500 that he owed Troxell in child support. The trial court ordered Clark to pay Troxell $23,358.22 in child-support arrearages plus attorney's fees; found Clark in criminal contempt for the failure to make monthly payments for over 400 months; ordered him committed to jail for 150 days for each month, and ordered those sentences to run concurrently; suspended the commitment; and ordered Clark on community supervision or probation for ten years.

Clark first attempted to challenge the contempt order by a petition for writ of habeas corpus and motion for writ of mandamus incorporated in his brief on appeal of the trial court's judgment in the enforcement action.¹ A contempt order, however, is not a final judgment that can be reviewed on appeal. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam); Tex. Dep't of Human Resources v. Hebert, 621 S.W.2d 466, 467 (Tex.Civ.App. — Waco 1981, no writ); In re K.S.E., No. 04-02-00319-CV, 2003 Tex. App. LEXIS 4680, at *2 (Tex. App.-San Antonio June 4, 2003, no pet.) (mem. op.). We thus notified Clark: "Appellant's brief frames his first issue as a petition for mandamus and/or habeas relief. If appellant desires to request such relief, appellant must file an original proceeding in this Court under Rule of Appellate Procedure 52." Clark then filed the instant petition for writ of mandamus, which the Clerk has docketed as the instant cause. Troxell filed a response.

1 We decide the appeal of the judgment for child support, styled In the Interest of B.A.C., and numbered 10-02-00243-CV, today in a separate opinion. See 2004 Tex. App. LEXIS ___ (Tex. App.-Waco Mar. 31, 2004, no pet. h.).

"Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." In re State Bar, 113 S.W.3d 730, 733 (Tex. 2003) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). "That a party must have `no other adequate remedy by law' is a `fundamental tenet' of mandamus practice." Id. at 734 (quoting Walker at 839). When the remedy of the writ of habeas corpus is available to a contemnor, he or she does have an adequate remedy, so that the writ of mandamus will not lie. See Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997) (orig. proceeding) (per curiam); Deramus v. Thornton, 160 Tex. 494, 497-98, 333 S.W.2d 824, 827 (Tex. 1960) (orig. proceeding); In re Taylor, 28 S.W.3d 240, 249 (Tex. App.-Waco 2000, orig. proceeding) (mem. op.). The writ of habeas corpus is available when a contemnor is restrained in his or her liberty by virtue of a court order. See Ex parte DeLeon, 972 S.W.2d 23, 24 (Tex. 1998) (orig. proceeding) (per curiam); Ex parte Williams, 690 S.W.2d 243, 244 (Tex. 1985) (orig. proceeding) (child support). When a court holds a person in contempt for the failure to pay child support, suspends commitment of the contemnor on probation, and imposes conditions of probation other than payment of the underlying obligation, the contemnor is restrained for habeas purposes. Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990) (orig. proceeding); In re Pierre, 50 S.W.3d 554, 558 (Tex. App.-El Paso 2001, orig. proceeding); In re Ragland, 973 S.W.2d 769, 771 (Tex. App.-Tyler 1998, orig. proceeding); In re Gill, No. 04-99-00828-CV, 1999 Tex. App. LEXIS 8782, at *2-*3 (Tex. App.-San Antonio Nov. 24, 1999, orig. proceeding [habeas corpus denied]) (not designated for publication).

Besides payment of the child-support arrearage and attorney's fees, Respondent ordered as conditions of probation that Clark "report to the community supervision and corrections officer . . . at all times and places as directed by the Court" and "pay a community supervision fee as ordered by the Court." Under these conditions, Clark is restrained in his liberty beyond the mere payment of the underlying obligation. Thus, Clark may challenge the contempt order by petition for writ of habeas corpus. Accordingly, Clark has a legal remedy other than writ of mandamus. Clark's petition for writ of mandamus is therefore denied.