Ex Parte Almendarez

621 S.W.2d 664, 1981 Tex. App. LEXIS 4021
CourtCourt of Appeals of Texas
DecidedAugust 6, 1981
Docket18620
StatusPublished
Cited by9 cases

This text of 621 S.W.2d 664 (Ex Parte Almendarez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Almendarez, 621 S.W.2d 664, 1981 Tex. App. LEXIS 4021 (Tex. Ct. App. 1981).

Opinions

OPINION

HUGHES, Justice.

Necho Almendarez, the relator in this original habeas corpus proceeding, seeks review of the adjudication of contempt rendered against him. We granted the relator’s writ pending final determination. He posted bond and was released from custody.

February 2, 1979 the relator and his wife, Charlotte Almendarez, were divorced. The relator was ordered to make monthly payments of $150.00 for support of the children of the marriage beginning on February 1, 1979.

September 22, 1980 the district attorney’s office of Tarrant County filed a motion for contempt show cause hearing charging that through September 1, 1980 relator was in arrears in the amount of $3,000.00. An order of contempt show cause hearing was issued and served upon him.

November 3, 1980 the hearing was held. Upon the master’s recommendation the district court held the relator guilty of two counts of contempt. The first was for ar-rearages and the second was for his failure to pay through the Child Support Office. He was ordered to be committed to two consecutive 180 day jail terms from which he could obtain release by payment of arrearages in the amount of $3,300.00.

November 25, 1980 the relator was released from jail pursuant to an order based upon his promise to pay $250.00 by November 4, 1980, and the regular $150.00 per month child support payments plus $100.00 per month on an arrearage of $3,050.00.

January 20, 1981 the district attorney’s office filed a second motion for contempt show cause hearing. The November 25, 1980 release order was cited as having been violated. The relator was notified of a hearing which was set for March 30, 1981 but failed to appear. (The relator was ordered to be committed for 180 days. This order, however, is not before us.)

[666]*666The record then reflects a contempt judgment dated June 9, 1981 ordering that the relator be committed to 180 days in jail pursuant to a show cause hearing held on that date. The order states that he was in arrears $3,865.00 through June 1, 1981. There is no motion for a contempt show cause hearing nor citation as to the June 9 hearing found in the record, although the order recites that the relator was cited to appear.

In relation to the June 9 hearing, two orders dated June 10, 1981 are found in the record. The first is an order granting the relator’s “Notice of Appeal of Findings by Master and Request for Hearing by the Court”. The second order dated June 10 temporarily released him from jail pending a hearing set for June 15,1981. The relator evidently spent June 9 and 10 in jail.

June 15, 1981 a hearing was held. The district court rendered a contempt judgment. Relator was ordered confined for three consecutive 180 day terms or until such time as he satisfied an arrearage through June 1 of $3,835.00.

In particular, the district court found that the relator failed to pay as the district court had ordered on November 25, 1980 and therefore revoked the probation of the two 180 day sentences previously ordered.

Among its specific findings the district court found that the relator had failed to make the regular payment of $150.00 due on February 1, 1981 although he was employed and able to do so. Recited was that he was in contempt for failure to make the February 1 payment and it was ordered that he be committed to jail for 180 days for that act of contempt; with this sentence to be served after he had served the two 180 day sentences on which probation had been revoked. Confinement then begun was that as to which this court scheduled habeas corpus hearing.

In order for the relator to obtain discharge it must affirmatively appear that the judgment ordering his confinement is void. Ex part Alvarado, 543 S.W.2d 144 (Tex.Civ.App.—El Paso 1976, original proceeding).

The relator first contends that the June 15, 1981 contempt judgment which ordered his commitment is void for the reason that there was insufficient evidence to establish that he failed and refused to support his children in accordance with his ability.

Where a relator seeks habeas corpus relief on the ground that he is unable to purge himself of contempt by paying ar-rearages in child support, he has the burden of conclusively establishing that he has no source from which he might be expected to obtain funds to pay the arrearage. The relator must, by specific proof, establish that (1) he lacks sufficient personal or real property which could be sold or mortgaged to raise the needed sum; and (2) that he has unsuccessfully attempted to borrow the sum from financial institutions such as banks, credit unions, and loan companies; and (3) that he knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured. Ex parte Lindsey, 561 S.W.2d 572, 574 (Tex.Civ.App.—Dallas 1978, original proceeding).

The evidence introduced by the relator at the hearing on June 15 went primarily to his sources of income. Such evidence would have been more appropriate if a proceeding in regard to modification of future child support obligations were involved. However, we have before us the issue as to the relator’s ability to pay delinquent child support.

The evidence showed that the relator was able to keep current his car payments of $148.41 per month at all pertinent times; also that he voluntarily incurred the obligation to maintain a second family by a new wife.

We hold that the relator failed to conclusively establish that he lacked resources, either presently owned or procurable, which would be sufficient to satisfy the arrearag-es on the ordered child support.

The relator further contends that the contempt judgment is void for the reason that the finding that he failed to make the payment due February 1, 1981, as ordered, [667]*667is not supported by the motion serving as premise for contempt show cause hearing.

Due process requires that a party receive full and complete notification of the charges against him in order that he be afforded a reasonable opportunity to adequately respond. Ex parte Gordon, 584 S.W.2d 686 (Tex.1979).

Conceding that the relator was not given notice as to his being charged with being in default of the February 1, payment, we nevertheless are not persuaded that the entire order is void.

A situation involving a failure to notify one charged to be in contempt of an arrear-age as to a particular month, as that for which a relator was found to be in contempt was presented in Ex parte Rine, 603 S.W.2d 268 (Tex.Civ.App.—Waco 1980, original proceeding). There the court acknowledged existing authority to the effect that a whole judgment was tainted and void where it is found that a contemnor could not be held in contempt for one of several acts for which the judgment had fixed a single penalty applicable to all. The court went on, however, to distinguish facts on the ground that the record on the contempt order showed precisely the basis of the order and the punishment for the monthly payment violation of which the relator was not notified. Citing Ex parte Williams, 469 S.W.2d 449

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Bluebook (online)
621 S.W.2d 664, 1981 Tex. App. LEXIS 4021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-almendarez-texapp-1981.