Opinion
No. 08-00246-CV
Delivered and Filed: June 4, 2008.
Appeal from the County Court at Law No. 2, Webb County, Texas, Trial Court No. 2005-CVG-001558-C3, Honorable Jesus Garza, Judge Presiding.
Original Proceeding.
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED.
Sitting: ALMA LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
This petition for mandamus arises from enforcement orders pursuant to a division of debt regarding the marital estate in a suit for divorce. Relator Rosaura Martinez a/k/a Rosaura Lara ("Martinez") seeks relief from the respondent, the Honorable Jesus Garza's action in finding Martinez in contempt for violating a Divorce Decree signed on July 30, 2003, and ordering Martinez to pay certain debts, charges, liabilities, obligations and interest by September 16, 2007, or Martinez would be confined for up to eighteen months in the county jail. Because we conclude that Martinez is entitled to the relief sought, we conditionally grant the writ.
Background
Martinez was divorced on June 11, 2003, and the Final Decree of Divorce was signed on July 30, 2003. The Decree ordered that both Martinez and her ex-spouse were equally liable for the total sums owed on the following debts: Bank of America with account number ending in 8053; MBNA America with account number ending in 7545; MBNA America with account number ending in 9627; Capitol One with account number ending in 0348; and Country Wide. No date was specified as to when each debt was to be fully paid by Martinez.
Judge Garza subsequently found Martinez in contempt for failure to pay the pending debts and on July 18, 2007, ordered that if Martinez failed to make full payments on the pending debts within 60 days that Martinez would be confined for up to eighteen months. Findings of Fact and Conclusions of Law were entered on September 19, 2007, wherein Judge Garza found Martinez had failed to comply with the Divorce Decree dated July 30, 2003, and further, had failed to make any payments between July 30, 2003, and January 1, 2005.
Martinez originally appealed the trial court's order holding her in contempt but because the validity of a contempt order can not be attacked by direct appeal, we dismissed her appeal for want of jurisdiction. See Martinez v. Martinez, No. 04-07-00818-CV, 2008 WL 140462, *1 (Tex.App.-San Antonio Jan. 16, 2008, no pet.). Martinez then filed this petition for writ of mandamus, maintaining that Judge Garza abused his discretion in the following: 1) conditioning confinement upon the failure to pay debts; 2) failing to clarify the previous order; and 3) denying Martinez the right to a jury trial.
Standard of Review and Applicable Law
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 191 (Tex.App.-San Antonio 2000, orig. proceeding). Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig. proceeding).
Generally, a person deliberately disobeying a valid court order may be found guilty of contempt and subject to imprisonment. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). However, the failure to comply with an order to pay a "debt" is not contempt punishable by imprisonment because of the prohibition of article I, section 18 of the Texas Constitution, which provides that "[n]o person shall ever be imprisoned for debt." Tex. Const. art. I, § 18. Thus, although an order requiring payment of a debt may be enforced through legal processes like execution or attachment of property, a confinement order based on the failure to pay a debt is void. Hall, 854 S.W.2d at 658.
A person may, however, be confined under a court's contempt powers for failure to pay child support since the obligation to support a child is viewed as a legal duty rather than a debt. See Tex. Fam. Code §§ 157.001, 157.166-.167; Hall, 854 S.W.2d at 658; see also Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188-89 (1953) (attorney's fees related to child-support contempt actions are viewed as costs and are likewise not considered a debt). As with child-support obligations, a person may also be held in contempt for failure to satisfy an obligation to deliver specific property pursuant to a division of the community estate. See Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex. 1975). However, where a divorce decree fails to identify existing funds from which community debts are to be paid, the obligation to pay is merely a debt owed to another and not a constructive trust holding community assets that rightfully belong to another. In re Henry, 154 S.W.3d 594, 598 (Tex. 2005) (holding that the obligation to pay property taxes as ordered in the divorce decree was a debt and therefore, not enforceable by confinement by contempt).
Discussion
In the present case, Martinez was threatened with confinement based on the failure to pay, as a part of the division of the estate of the parties, one-half of the debts incurred on various accounts. Because these "debts" did not involve the failure to pay child support or otherwise involve the delivery of specific property pursuant to a division of the community estate, Martinez's obligation to pay these debts is clearly not enforceable by confinement by contempt. See Tex. Const. art. I, § 18; Henry, 154 S.W.3d at 598. Accordingly, we agree that Judge Garza abused his discretion in conditioning confinement upon Martinez's failure to pay debts.
Because we conclude that Martinez is entitled to the relief sought based on her first issue presented, we need not address her remaining issues.
Conclusion
On April 15, 2008, this Court advised the parties that it was of the tentative opinion that relator was entitled to the relief sought and the parties were provided an opportunity to respond; however, no response was filed. Accordingly, after considering relator's petition for a writ of mandamus, we conditionally grant relator's petition for writ of mandamus. See Tex. R. App. P. 52.8(a). Judge Garza is directed to vacate his orders that Martinez be confined in the county jail for a period not to exceed eighteen months or until she has complied with orders to pay the full balances on her obligations as stated in the divorce decree. A writ of mandamus will issue only if Judge Garza fails to comply with these instructions.