Opinion
No. 05-20-00124-CV
05-11-2020
IN RE ALEXANDER RIVKIN, Relator
Original Proceeding from the 469th Judicial District Court Collin County, Texas
Trial Court Cause No. 469-54745-2016
MEMORANDUM OPINION
Before Justices Schenck, Partida-Kipness, and Nowell
Opinion by Justice Partida-Kipness
In this original proceeding, Alexander Rivkin filed a petition for writ of habeas corpus after the trial court ordered him jailed for civil and criminal contempt for failing to comply with the trial court's temporary orders entered in relator's divorce case. Relator contends the temporary orders are no longer enforceable because the trial court rendered judgment in the divorce case by filing a memorandum that resolves the parties' property division and child custody issues. We deny relief.
BACKGROUND
In 2016, relator's wife, Olga Rivkin ("Olga"), filed a petition for divorce. On January 11, 2017, the trial court entered temporary orders requiring relator to pay Olga $1,710 a month in child support and arranging for temporary possession of business and residential property.
On August 16, 2017, the trial court held relator in criminal and civil contempt for violations of the temporary orders including failing to pay $8,480 in child support, failing to provide an accounting for various businesses, and failing to pay Olga's attorney $10,000 for expert fees. The trial court deferred enforcement of the criminal contempt for two years. On December 15, 2017, the trial court revoked the deferment of confinement and ordered relator jailed for 180 days for failure to pay child support, but it suspended relator's commitment to jail for five years. According to the trial court's docket sheet, the trial court conducted a trial in the divorce case beginning on September 7, 2018.
On March 3, 2019, the trial court issued a "Memorandum" announcing a property division and custody of the couple's minor child. The memorandum states:
***This is not an Order, nor should it be regarded as an Order. A final Order will still need to be prepared.***It purports to make "rulings of the Court" and grants the divorce, naming Olga and relator as joint managing conservators of their child, awarding various items of property to relator and to Olga, and awarding Olga judgments for $10,000 in expert fees and $25,314 in collected rents relator owed Olga under the temporary orders. It concludes "If agreements can be reached on the form of the Final Order, please submit with agreed signatures by March 28, 2019 for the Court's signature. Otherwise, all parties and counsel will need to appear on March 29, 2019 at 1:30 p.m. for a hearing regarding the entry of the final order."
No final order was entered. The trial court did, however, issue an amended memorandum on June 3, 2019 adding a requirement that relator release liens his brother filed on property awarded to Olga. Various other proceedings also took place over the summer.
Then, on September 3, 2019, Olga filed a second amended motion to revoke suspension of commitment alleging multiple violations of temporary orders requiring relator to pay child support, pay various living expenses, pay attorney's fees and the $10,000 fee for retaining an expert, pay Olga rents collected on seven housing units, provide an accounting on several businesses, allowing foreclosure on one property, and selling other property to a company for which his sister is the registered agent. On December 3, 2019, Olga filed a supplemental motion to revoke alleging relator had sold without authorization two properties awarded to her, created a limited liability company to receive the money, and distributed the proceeds totaling $1,161,507.77 to his new company.
This allegation is not addressed in the trial court's commitment order.
On December 10, 2019, the trial court revoked suspension of commitment and ordered relator committed to jail for 180 days. The trial court found relator in criminal contempt for failing to make child support payments from June through September 2019 despite being able to pay, failing to provide accounting for business expenses, failing to remove fraudulent liens placed on Olga's properties by his brother, and fraudulently selling property. The trial court found him in civil contempt for failing to pay Olga's attorney the $10,000 expert fee and failing to pay Olga collected rents on apartments. The trial court ordered relator confined for 180 days for civil and criminal contempt to be served concurrently.
Relator then sought habeas relief and temporary relief from this Court. We denied the request for temporary relief, but requested a response to relator's petition for writ of habeas corpus. Relator also filed a brief in support of his petition. No response has been filed.
ANALYSIS
A commitment order may be collaterally attacked in an original habeas corpus proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig. proceeding). The purpose of a writ of habeas corpus is not to determine the guilt of the contemnor, but only to determine whether the contemnor has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding). A court will issue a writ of habeas corpus if the order underlying the contempt is void, or if the contempt order itself is void. See id.; Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983); In re Stein, 331 S.W.3d 538, 540 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (per curiam). An order is void if it is beyond the power of the court to enter it, or if it deprives the relator of liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding); Stein, 331 S.W.3d at 540.
Relator contends the March 3, 2019 memorandum, although expressly stating it is not an order, actually rendered judgment. Relator cites section 101.026 of the family code to support his argument that judgment may be rendered either orally on the record or in writing by docket entry or a separate written instrument. See TEX. FAM. CODE ANN. § 101.026; see also S&A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam). Relator contends the eventual preparation of a written judgment is merely a ministerial act. According to relator, because the trial court has rendered judgment, the trial court's temporary orders are no longer in existence and he cannot be committed to jail for violating them. See Ex parte Grothe, 581 S.W.2d 296, 297 (Tex. Civ. App.—Austin 1979, no writ) (holding contempt judgment void to extent it relied on violations of expired temporary orders superseded by entry of divorce decree). We disagree.
Generally, temporary orders expire when a final judgment is entered. Coke v. Coke, 802 S.W.2d 270, 273 (Tex. App.—Dallas 1990, writ denied); see also Erlewine v. Erlewine, No. 03-06-00308-CV, 2007 WL 2462042, at *2. (Tex. App.—Austin Aug. 29, 2007, no pet.) (mem. op.) (temporary orders superseded and no longer in effect after entry of final protective order). In this case, however, relator has not shown a final judgment has been entered. Regardless of the language used and the trial court's pronouncements, judgment is not rendered unless the trial court acts with the present intent to render a full, final, and complete judgment that resolves all issues. See McShane v. McShane, 556 S.W.3d 436, 442 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); see also S&A Restaurant Corp., 892 S.W.2d at 858 (intent to render judgment in future is not present rendition of judgment). For example, a ruling is not considered final when that ruling omits required statutory elements or includes language indicating a final order will be rendered in the future. See In the Interest of R.R.K., 590 S.W.3d 535, 544 (Tex. 2019) (one-page, bullet-pointed memorandum with a Mother Hubbard clause to the effect that all relief not granted was denied was not a final order); see also Gamboa v. Gamboa, 383 S.W.3d 263, 270 (Tex. App.—San Antonio 2012, no pet.) (concluding trial court did not render final divorce in hearing despite stating it was "granting the divorce effective today" and approving settlement agreement when it also stated it wanted to get final agreement done, set deadline for parties to complete final agreement, and told them they could return to court if they could not agree on resolution of issues).
Here, the trial court issued a three-page memorandum and four-page amended memorandum that state in bold-faced type that they are not orders, do not contain Mother Hubbard Clauses, contain bullet-pointed summaries of custody and possession, do not contain statutorily required identifying information and warnings, require relator to provide an email address "to be put in the final order," and conclude "If agreements can be reached on the form of the Final Order, please submit with agreed signatures by March 28, 2019 for the Court's signature. Otherwise, all parties and counsel will need to appear on March 29, 2019 at 1:30 p.m. for a hearing regarding the entry of the final order." Further, the trial court's docket sheet states only "Memorandum" on the date the memorandum was issued and thus does not reflect the trial court rendered judgment. After entry of the initial memorandum, the parties continued to litigate their case, the trial court amended the memorandum to address another issue, and there have been various ongoing proceedings, including the proceedings leading to the current commitment order. Under this record, we conclude the memorandum was not a final order rendering judgment that would extinguish the temporary orders. See R.R.K., 590 S.W.3d at 544; see also McShane, 556 S.W.3d at 442; Gamboa, 383 S.W.3d at 270.
Quoted from the March 3, 2019 memorandum. The amended memorandum contains identical language with different dates.
CONCLUSION
Under this record, we conclude relator has not shown he is entitled to habeas relief. Accordingly, we deny relator's petition for writ of habeas corpus.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE 200124F.P05