Ex Parte Christensen

868 S.W.2d 376, 1993 Tex. App. LEXIS 3241, 1993 WL 493621
CourtCourt of Appeals of Texas
DecidedDecember 2, 1993
Docket01-93-00364-CV
StatusPublished
Cited by7 cases

This text of 868 S.W.2d 376 (Ex Parte Christensen) 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 Christensen, 868 S.W.2d 376, 1993 Tex. App. LEXIS 3241, 1993 WL 493621 (Tex. Ct. App. 1993).

Opinions

OPINION

HUTSON-DUNN, Justice.

This petition for writ of habeas corpus arises from an order following a motion for contempt filed by Marissa Christensen, the real party in interest, against Ronald Aton Christensen, relator, for failure to pay child support according to the terms of their divorce decree, dated June 23, 1992.

On September 9, 1992, the trial court found relator in contempt for failure to pay child support as ordered in the original or[378]*378der, $175.00 on August 1 and $175.00 on August 15, 1992, and ordered confinement in the county jail for a period of five days for each separate violation, and thereafter until he purged himself of civil contempt by paying $1,158.00. In that same order, the court suspended the commitment and placed relator on probation for one year. On April 23, 1993, the court found that relator had failed to comply with the terms and conditions of the September 9 order suspending commitment and revoked the suspension, ordering relator to the custody of the Harris County sheriff.

This Court granted leave to file relator’s writ of habeas corpus on April 29, 1993, and ordered relator released from jail pending a final determination of the matter.

Relator contends in this habeas corpus proceeding that he is illegally confined and restrained because: (1) the amounts due for the August child support payments were withheld from his paycheck pursuant to the withholding order filed June 17, 1992; (2) relator is, in reality, being confined for child support owed prior to the signing of the final decree; (3) the master’s report was the “final order” upon which the real parly in interest relied when she obtained the writ permitting her to attach relator’s bank account on May 29, 1992; therefore, she is estopped from enforcing the terms of some other order; (4) the “final divorce decree” is void because it was signed by the trial judge after its plenary power expired, more than 30 days after the court adopted the master’s report on April 16, 1992, which constituted the final divorce decree; and (5) the capias issued on October 27,1992, was without personal notice to relator.

A writ of habeas corpus is a collateral attack on the trial court’s order, and it is the relator’s burden to demonstrate that the contempt order is void, not merely erroneous. Ex parte Williams, 704 S.W.2d 465, 468 (Tex.App.-Houston [1st Dist.] 1986, orig. proceeding). The relator may accomplish this by demonstrating that the order is void because it was either beyond the power of the court to issue such an order, or because the order deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980); Ex parte Crawford, 684 S.W.2d 124, 126 (Tex.App.-Houston [14th Dist.] 1984, orig. proceeding).

Relator argues he is illegally restrained because the August child support payments for which he is confined were in fact paid because they were withheld from his paycheck. The record demonstrates that $161.54 was withheld from relator’s paycheck on August 17, 1992, and again on August 28, 1992.

Relator contends he cannot be held in contempt for nonpayment of the August 1 and 15 payments ordered in the original order because he was subject to an Employer’s Withholding Order which called for payments of $161.54 every other week instead of $175.00 due on the first and fifteenth per the original order. He asserts that Exhibit 8, which is an Employer’s Withholding Order dated June 18, 1992, was signed by the trial court and served on relator’s employer. He states that the testimony shows that the child support due in August was withheld from his salary pursuant to the June 18 Employer’s Withholding Order.

Under Tex.Fam.Code Ann. § 14.43(a) and (b) (Vernon Supp.1993), it is generally mandatory that the trial court provide provisions pertaining to withholding income from the disposable earnings of the obligor in every suit affecting the parent child relationship in which child support payments are ordered.

In this case, the trial court set out in its final order, dated June 23,1992, the required withholding provisions and stated that an “Employer’s order to withhold from earnings for the payment of child support is filed in conjunction with the decree and incorporated herein for all purposes.” This withholding order was to be attached to the final decree and was to be issued on request made to the clerk of the court by any of the following persons: the prosecuting attorney, the attorney general, Marissa Dawn Christensen, or Ronald Alton Christensen. If a request was made, a certified copy of the Employer’s Withholding Order was to be served by the clerk on the designated employer and would take effect as provided therein. In this record, an Order to Employer to Withhold from [379]*379Earnings for Child Support was filed with the clerk on June 17,1992, and signed by the judge on June 18, 1992. We are unable to determine whether the June 18 withholding order was the order to be incorporated in the final decree or whether after Mrs. Christensen request, the withholding order was actually issued and served. There is no evidence in the record of a request for service being made for the June 18 order or, if such a request was made, the record does not contain the date of service on relator’s employer.

Generally, the Employer’s Withholding Order is not intended to replace the initial child support ordered by the court, nor effect the amount ordered or change the dates on which the child support is due. See Interest of Brecheisen, 694 S.W.2d 438, 439 (Tex.App.-Dallas 1985, writ dism’d). However, in the final order dated June 28, 1992, which forms the basis of this contempt, the trial court specified that the child support order is subject to the provisions of the withholding order.

Following is the original child support order as contained in the final decree:

Child Support:
It is ORDERED and DECREED that Ronald Alton Christensen is obligated to pay and, subject to the provisions for withholding from earnings for child support specified below, shall pay to Marissa Dawn Christensen child support of $350.00 per month, in two installments of $175.00 each, with the first installment of $175.00 being due and payable on April 15,1992, and like payments of $175.00 being due and payable on each 1st and 15th days of each month thereafter until the date of the earliest occurrence of one of the following events....

(Emphasis added.)

Here the question becomes whether the final order was still in effect, i.e., $175.00 child support due on August 1 and 15, the dates the court found that relator failed to pay his child support, or, as relator argues, whether these dates were changed by the issuance and service of an Employer’s Withholding Order.

On June 28,1992, Mrs. Christensen filed a motion for enforcement of child support and also requested that the court order income withheld for child support (i.e., that an Employer’s Withholding Order be issued). The court set a hearing on the matter for August 4, 1992.

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Ex Parte Christensen
868 S.W.2d 376 (Court of Appeals of Texas, 1993)

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868 S.W.2d 376, 1993 Tex. App. LEXIS 3241, 1993 WL 493621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-christensen-texapp-1993.