in Re Damian Johnson

• Court: Court of Appeals of Texas
• Decided: April 27, 2006
• Docket: 01-06-00001-CV
• Status: Published

Opinion

Opinion issued April 27, 2006

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00001-CV

IN RE DAMIAN JOHNSON, Relator

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Original Proceeding on Petition for Writ of Habeas Corpus

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MEMORANDUM OPINION

           Relator, Damian Johnson, requests habeas corpus relief, asserting that he is illegally restrained by a void January 3, 2006 contempt order. We ordered Damian released upon his posting a bond, pending our final determination of his petition. We grant habeas corpus relief.

Factual Background

          Damian and Carol-Leigh married in 1998. Shortly before they married, they signed a premarital agreement containing a provision in which they each agreed to “forego any alimony payments.” In 2004, Carol-Leigh initiated divorce proceedings, which are still pending before the trial court. On June 29, 2005, the trial court granted Carol-Leigh’s motion for interim attorney’s fees and ordered Damian to pay $20,000 to her counsel on July 1, 2005.

          On July 19, 2005, Carol-Leigh filed a motion to clarify the trial court’s June 29, 2005 order. Carol-Leigh sought clarification that the attorney’s fees constituted spousal support, so that, if they were not paid as ordered, Damian would be subject to the remedy of contempt. The hearing on the motion was set for July 25, 2005. On July 28, 2005, following the July 25th hearing, the trial court signed an “Amended Order For Spousal Support As Interim Attorney’s Fees.” It ordered Damian to pay, as spousal support, the $20,000 to Carol-Leigh’s counsel by 3:00 p.m., July 29, 2005.

          On August 5, 2005, Carol-Leigh filed a contempt motion against Damian, asserting that, on July 25, 2005, the trial court ordered Damian to pay the $20,000 spousal support to Carol-Leigh’s counsel on July 27, 2005.

          On January 3, 2006, the trial court held a hearing on Carol-Leigh’s contempt motion. Carol-Leigh testified. Damian, who was present, put on no evidence. At the hearing’s conclusion, the trial court signed a contempt order entitled, “Order Holding Respondent In Contempt For Failure to Pay Child Support and For Commitment and Judgment For Unpaid Child Support.” In the body of the order, the trial court found and then held as follows:

(2) On June 24, 2005, [Damian] was ordered to make a $20,000.00 payment of spousal support on or before 3:00 p.m. on July 29, 2005. The oral rendition was formalized into a written final Order & signed by the Court on July 28, 2005. A copy of said Order is attached as Exhibit “B.”;

(3) [Damian] was charged with a count of contempt for failure to pay spousal support on the date and in the amount as reflected on Exhibit “A” attached hereto;

(4) [Damian] had the ability to make the spousal support payment on the date and in the amount as reflected on Exhibit “A” attached hereto;

(5) [Damian] has contemptuously disobeyed the order by failing to timely make the spousal support payment on the date and in the amount as reflected on Exhibit “A” attached hereto;

(6) [Damian]’s spousal support arrearage as to the date of this hearing is the total amount of $20,000.00; . . . .

Based upon the findings above, it is ADJUDGED that [Damian] is in CONTEMPT OF THIS COURT for the violation of said court order, and it is ORDERED that punishment for the violation is assessed, concurrently, at confinement in the county jail of Harris County for a period of 180 days . . . .

This contempt order, signed by the trial court on January 3, 2006, had two attachments. Attachment “A,” entitled, “PAST DUE SPOUSAL SUPPORT PAYMENTS” showed the following:

                              DATE DUE                     AMOUNT DUE

                              8/5/05                              $20,000.

Exhibit B was a copy of the July 28, 2005 “Amended Order for Spousal Support As Interim Attorney’s Fees” (sometimes hereafter referred to as “spousal support order”).

Jurisdiction

          Carol-Leigh asserts that this Court does not have jurisdiction of Damian’s petition because the trial court did not abuse its discretion in issuing the order for temporary support, that the Texas Supreme Court and this Court have previously rejected Damian’s argument that the spousal support order is void, that Damian received due process regarding the issuance of the contempt order, and that the contempt order was issued properly. These assertions do not support Carol-Leigh’s claim that this Court lacks jurisdiction to consider Damian’s petition for habeas corpus relief. Damian has produced an uncontroverted statement from the office of the Sheriff of Harris County that he was in the Sheriff’s custody commencing December 30, 2005. We have jurisdiction to consider Damian’s petition pursuant to the Texas Government Code, section 22.221(d) (Vernon 2004).

Standard of Review

          The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). We issue a writ of habeas corpus if a trial court’s contempt order is beyond the court’s power or the court did not afford the relator due process of law. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (citing Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980)). As a reviewing court, we may only determine if the trial court’s contempt findings are so completely without evidentiary support that the trial court’s judgment is void because it deprives a relator of liberty without due process of law. See Ex parte Helms, 259 S.W.2d 184, 186 (Tex. 1953).

Analysis

          In issue three, Damian asserts that he is entitled to his unconditional release because the only evidence at the contempt hearing was that he violated a non-existent duty to pay spousal support on August 5, 2005. We agree. As a matter of due process, Damian was entitled not to be incarcerated for something that was not a violation of the order Carol-Leigh sought to enforce. See Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966) (“the [contempt] order should clearly state in what respect the court’s order has been violated . . . .”).

          Here, in the January 3, 2006 contempt order, the trial court found Damian in contempt of its July 28, 2005 spousal support order for not paying the $20,000 to Carol-Leigh’s counsel on August 5, 2005, when the July 28, 2005 spousal support order required the $20,000 to be paid on July 29, 2005. Undoubtedly, the trial court made the finding that Damian had violated the support order on August 5, 2005, rather than on July 29, 2005 because of the following testimony:

[Carol-Leigh’s counsel] Q: And Ms. Johnson, how much spousal support was he supposed to pay?

[Carol-Leigh] A: $20,000.

Q: And when was that amount due?

A: I believe it was due in July or the order was in July, in August.

Q: Would it seem reasonable to you that the $20,000 was due on August the 5th of 2005?

          A: Yes.

          Q: Did you receive the $20,000 from your husband?

          A: No.

          Q: To your knowledge, did your attorney receive that money?

          In her brief, Carol-Leigh contends that this testimony was that neither she nor her attorneys ever received the money, circumstantially establishing that Damian violated the July 29, 2005 payment date provision of the support order. We note that, in this testimony, Carol-Leigh did not use the word, “ever.” Additionally, coming as it did, directly after her testimony that the money was due on August 5, 2005, her testimony that neither she nor her attorney had received the money, could have fairly been interpreted by the trial judge as meaning that the support order required the money to be paid on August 5, 2005 and that Damian violated such a provision by not making the $20,000 payment on that date. Further, hearing this August 5th non-payment testimony, if Damian had marshalled direct evidence to refute or act as a legal bar (such as premarital contractual prohibition of alimony) to an anticipated July 29 non-payment testimony, he was justified in not producing it, thinking Carol-Leigh had failed to adduce evidence of a violation of the July 29, 2005 payment provision.

          Carol-Leigh also contends that her testimony that the spousal support was due on August 5, 2005 is accurate. Even though true, it does not change the fact that, from a due process standpoint, if Damian were to be held in contempt for failing to make a support payment, it should be for not making the July 29, 2005 payment specified in the support order, to which he was entitled to look in preparing his defense, and not for a failure to make an August 5, 2005 payment, not explicitly specified in the spousal support order.

          We sustain Damian’s contention that he was denied due process because the only evidence at the contempt hearing supported a non-existent duty to pay spousal support on August 5, 2005. In light of this holding, it is unnecessary to consider Damian’s other contentions.

Conclusion

          We hold that the January 3, 2006 contempt order is void. We grant Damian’s request for habeas corpus relief and order the Sheriff of Harris County to unconditionally release him from restraint. We deny Carol-Leigh’s motion for sanctions against Damian.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.