Ranford v. Ranford

475 S.W.2d 590, 1971 Tex. App. LEXIS 2378

• Court: Court of Appeals of Texas
• Decided: December 17, 1971
• Docket: No. 17746
• Status: Published

Opinions

BATEMAN, Justice.

This appeal is from an order of the Domestic Relations Court finding that appellant was $2,000 in arrears in child support payments under a prior order of the court, and ordering him to pay it in monthly installments. No statement of facts was filed. Appellant contends that the invalidity of the order appealed from appears as a matter of law from the transcript. We agree.

The transcript discloses that appellant was granted a divorce from appellee by judgment dated June 23, 1969. That judgment ordered appellant to contribute $250 per month to the support of three minor children of the parties.

On January 25, 1971 appellant filed his motion to decrease the child support from $250 to $150 per month on the ground that one of the three children had reached the age of eighteen years and was no longer residing with appellee. Appellee filed a motion that appellant be held in contempt until certain arrearages in past due child support payments shall have been paid. In the order appealed from the court made certain findings of fact, among which were: (1) that the parties and their attorneys had agreed to the reduction of the child support to $150 per month for the two minor children still residing with appellee; (2) that appellant “was not guilty of willful contempt of the orders of this Court for failure to make the child support payments under the original Divorce Decree but [3] that he was Two Thousand Dollars ($2,000.00) in arrears.” The order reduced the child support payments to $150 per month pursuant to the agreement, and ordered appellant to pay, in addition thereto, $50 per month until the arrearages of $2,000 have been paid in full.

The sole question is whether the finding that appellant was $2,000 in arrears, followed by the order that this amount be paid at the rate of $50 per month, is valid and enforceable, or invalid and unenforceable. Counsel for both parties are in agreement that there is no Texas authority which directly answers this question, and we have found none.

It is well settled in Texas that the trial court has no authority to render a personal judgment against a parent for accumulated unpaid child support. Vernon’s Ann.Civ.St. of Texas, Article 4639a, gives the court “full power and authority to enforce said judgments by civil contempt proceedings,” and civil contempt proceedings are held to be the only remedy for enforcement of child support orders. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 121 (1957).

In the early case of Ex parte Davis, 101 Tex. 607, 111 S.W. 394 (1908), the Supreme Court held that the wife’s claim for support of herself and her children pendente lite was not a “debt” within the constitutional provision prohibiting imprisonment for debt. This rule was followed in Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953 (1936); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 51, 75 A.L.R. 1305 (1931), and many other cases. Citing Davis and Cunningham as authority, this court held, in McDonald v. Mercantile Nat. Bank at Dallas, 162 S.W.2d 991 (Tex.Civ.App., Dallas 1942, no writ), that the father’s liability under an order to make payments for child support is not a debt enforceable by the divorced wife by garnishment proceedings. See also Clay v. Siercovich, 388 S.W.2d 25 (Tex.Civ.App., Waco 1965, no writ), and Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App., El Paso 1961, writ ref’d n. r. e.).

In Thompson v. Thompson, 371 S.W.2d 572 (Tex.Civ.App., Fort Worth 1963, no writ), the divorced wife asked the trial court to hold her former husband in contempt of court for failure to pay arrearages of child support payments in the amount of $9,675. The trial court expressly found, as did the court in the case at bar, that the husband was not in contempt of court. However, it rendered a personal, final money judgment in the wife’s favor for $9,600, with interest and providing for execution. This judgment was reversed on appeal, the court holding that in view of the well settled rule that child support orders may be enforced only by contempt proceedings the trial court had no authority to render a separate judgment for the arrearages.

The only differences between the facts of Thompson and those in the case at bar are that in Thompson the judgment was for a lump sum bearing interest, and provided for enforcement by execution, while in this case the amount found to be owing is made payable in monthly installments, without interest and without provision for execution or other means of enforcement. We are of the opinion that these differences are not sufficient to distinguish the two cases. In each case the trial court, after expressly refusing to find the father in contempt, nevertheless found and adjudged that he was liable for the arrearages. We think the principle involved is the same in both cases.

It is with great reluctance that we hold that when the trial court refused to find appellant in contempt for failing to pay the arrearages the appellant’s legal liability therefor was extinguished. We make this decision in spite of our view that the trial court’s order was obviously a sensible and just solution of the problem confronting it, motivated by a worthy and sincere desire to protect the rights and interests of the minor children. We share that concern, but do not think we have authority to approve an order or judgment which we consider to be in conflict with the aforesaid opinions of the Supreme Court, as analyzed by the said courts of civil appeals.

Therefore, we sustain appellant’s single point of error and reverse that part of the judgment appealed from which found that appellant was $2,000 in arrears in child support payments and ordered him to pay it in monthly installments of $50 each, and, pursuant to Rule 434, Vernon’s Texas Rules of Civil Procedure, we render judgment that appellee take nothing under that part of the order. Other parts of the order, which are not attacked and which are based upon agreement of the parties, are affirmed.

Reversed and rendered in part and affirmed in part.

GUITTARD, J., dissents.