Garcia v. Garcia

469 S.W.2d 920, 1971 Tex. App. LEXIS 2144

• Court: Court of Appeals of Texas
• Decided: July 28, 1971
• Docket: 14995
• Status: Published

Opinions

KLINGEMAN, Justice.

Appellant, Louis T. Garcia, attempts to appeal from an order adjudging him in contempt of court for failure to make child support payments. Although appellant asserts ten points of error, the crucial question here involved is whether we have jurisdiction to hear such appeal.

Josefa Garcia was awarded a divorce from appellant by decree dated August S, 1967. In such decree appellant was ordered to make child support payments of one-half of his social security payments monthly. In October, 1970, Josefa Garcia filed an affidavit for contempt alleging that appellant had not complied with the court’s order with reference to child support payments. Upon a hearing thereof, appellant was found guilty of contempt of court in that he had failed and refused to make child support payments, aggregating the total sum of $540.00. Such order adjudging appellant in contempt further provides that appellant may purge himself of such contempt by paying to Josefa Garcia child support in the sum of $54.00 a month, plus a sum of $11.00 on such arrears, making a total sum of $65.00 until such sum in arrears is paid; failing in which appellant is to be incarcerated in jail until further orders of the court. It appears from the record that appellant is receiving social security payments of $108.00 a month. It does not appear from the record that appellant is incarcerated or under any character of restraint whatsoever.

It has been uniformly held in this State that the validity of a contempt judgment can be attacked only collaterally, and then by writ of habeas corpus. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 (1960); Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884, 887 (1957); Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890, 893 (1956);¹ The State v. Thurmond, 37 Tex. 340, 341 (1872);² Ex parte Henderson, 300 S.W.2d 189 (Tex.Civ.App.-Beaumont 1957, no writ); Tims v. Tims, 204 S.W.2d 995 (Tex.Civ.App.-Amarillo 1947, writ ref’d); 12 Tex.Jur.2d, Contempt, Section 59.³

The case of Tims v. Tims, supra, is directly in point. Mrs. Tims filed an affidavit of contempt alleging that her husband had failed and refused to make the child support payments of $50.00 a month provided in the divorce decree, and had likewise failed and refused to deliver to her certain personal property decreed to her. The husband filed an answer containing a number of special exceptions and a plea of not guilty, and further contended that he was not financially able to pay the monthly payments decreed by the court in the divorce case. After a hearing the husband was held in contempt of court and conditionally assessed a fine of $100.00 and committed to jail for three days and until the fine was paid. The husband filed an appeal to the Court of Civil Appeals, and that Court, in dismissing said appeal for lack of jurisdiction, said: “It has been the well settled law of this State since the decision by the Supreme Court in the case of State v. Thurmont [sic], 37 Tex. 340, that no jurisdiction is vested in the appellate courts directly to review a contempt proceeding. The only manner in which such a proceeding and judgment thereon can be reviewed is by means of habeas corpus.” (204 S.W.2d 995).

While appellant agrees that this is a correct statement of the law, he urges that the order appealed from in effect constitutes an order increasing child support payments. We have carefully examined such order and do not agree with this contention. The order itself is entitled “Order Adjudging Defendant in Contempt of Court.” The sum recited to be the amount of child support is $54.00, which is one-half of the amount of the monthly social security payments being received by defendant, and is in accord with the original decree of divorce in which defendant was ordered to make child support payments of one-half of his monthly social security payments. The order adjudging defendant in contempt merely provides for a method of payment of his required child support payments, and the additional sum of $11.00 a month to pay the $540.00 found by the court to be in arrears.

The case before us, like Tims, is not an appeal from a judgment upon habeas corpus. It is an attempt to appeal directly from an order holding appellant in contempt of court and assessing against him a conditional punishment.

This Court is without jurisdiction to hear such appeal, and the appeal is therefore dismissed.

1 . The Court referred to the following statement of the rule in 9 Tex.Jur., Contempt, See. 45: “ ‘A judgment of a court convicting a person of contempt is not subject to revision in any other tribunal, unless specially authorized by statute. In Texas the statutes made no provision for an appeal from an adjudication and commitment for contempt, and none for review by writ of error.’ Relief must be sought by an application for a writ of habeas corpus.”

2 . “But this, as an appellate court, has no revisory power over the judgments of the District Courts in cases of contempt. (Crow v. State, 24 Texas, 14.) This is the language of the authorities, the statutes, reason, and common sense; and we are not willing, now, to take the responsibility of controverting that just rule. We are therefore of the opinion that the appeal in this case is without authority of law, and the same is dismissed.”

3 .“The only remedy to review a contempt proceeding and the judgment therein is by a collateral attack by a writ of habeas corpus when the relator is in custody.”