Ex parte Culver

760 S.W.2d 794, 1988 Tex. App. LEXIS 3109, 1988 WL 134520

• Court: Court of Appeals of Texas
• Decided: November 3, 1988
• Docket: No. 09-88-268 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Relator files this application for writ of habeas corpus alleging he is illegally restrained because of an order of contempt. Relator alleges the order is void because he is unable, through no fault of his own, to obey a child support modification .order.

Relator was divorced in 1979. The court ordered child support payments of $300 per month. In June 1987, the mother/managing conservator filed a motion to increase the payments. On April 25,1988, the court ordered the payments increased to $1,250 per month effective September 1, 1987, and an arrearage of $5,700 accrued between September 1, 1987, and February 1988 be paid on or before June 1, 1988, in addition to the regular monthly payments ordered. The court further ordered the payments beginning March 10, 1988, be paid in bimonthly installments of $625 on the 10th and 25th of each month. Relator gave notice of appeal of this order on June 29, 1988.

Thereafter relator continued to pay $300 per month. His ex-wife filed a motion for contempt that was heard on August 23, 1988. At that hearing the parties stipulated that relator had not paid the lump sum payment due on or before June 1, 1988. They also stipulated that relator had not paid the full amount of the monthly payments ordered by the court and the total arrearage as of August 23rd was $10,-775. Relator stipulated he was financially able to pay child support of $425 per month beginning March 1988 and ending August 1988. The court found relator in contempt for failing to pay the $5,700 due on June 1, 1988, and for failing to pay $625 on the 10th and 25th of each month from March 10th through August 10th. Relator’s punishment was assessed at six months’ confinement for each separate violation to run concurrently. The court further ordered relator confined until he paid the $10,775 owed. The court suspended the order until October 1, 1988, allowing relator to purge by paying the entire amount before that date. As of October 5,1988, relator was in custody pursuant to an order of commitment.

Relator alleges the order of commitment is void because of his inability to obey the court order. Relator is the president/chief operating officer of a closed corporation. There were extensive financial records admitted in the motion to modify. The propriety of that ruling will be decided in a separate appellate action.

After the stipulations, the contempt hearing began by relator testifying, on direct examination, that his optimum ability to pay child support was $425 per month. Thereafter there was extensive cross-examination about relator’s business ventures, his ability to borrow money, his net worth and his financial status in general. There was particular testimony that Relator was making monthly payments for various expenses which exceeded the additional child support payments. This deliberate choice between meeting those obligations and the obligation ordered by the court is insufficient to show inability to pay. Ex parte Heard, 372 S.W.2d 942 (Tex.1963).

After reviewing the record of the contempt hearing, we are unable to say that relator proved his inability to pay on the specific dates or that all possible sources from which he could have obtained funds were exhausted.¹ Ex parte Williams, 704 S.W.2d 465 (Tex.App.—Houston [1st Dist.] 1986, no writ). The Writ of Habeas Corpus is denied.

WRIT DENIED.

1 . The concurring opinion quotes extensively from the record of the motion to modify. I find no indication that it was admitted into evidence at the contempt hearing nor any request that the trial court take judicial notice of the evidence in the motion to modify. Therefore I do not believe that record is properly before us even though it was filed with the application.