in Re Thomas Michael Little Jr. ( 2011 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00732-CV
In re Thomas Michael Little Jr.
ORIGINAL PROCEEDING FROM BELL COUNTY
MEMORANDUM OPINION
In this habeas corpus proceeding, relator Thomas Michael Little Jr. challenges the
validity of the trial court’s order holding him in contempt for failure to pay child-support arrearages
and court-ordered attorney’s fees to real party in interest, Alicia Little Johnson. Thomas argues that
the contempt order is void because he received no notice of, and did not appear at, the hearing at
which it was rendered. Alicia responds that the order is not void in its entirety, and that although the
contempt portion of the order may be voidable, the child-support arrearage judgment and award of
attorney’s fees and court costs contained therein remain valid. We will deny habeas relief.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas and Alicia were divorced in 2002. Under the divorce decree, Thomas was
ordered, among other things, to pay monthly child support for their two minor children and to keep
the trial court notified of his current address. In January 2009, Alicia filed a motion for enforcement
alleging that Thomas was in contempt of court for failing to comply with the child-support order in
the divorce decree as well as a 2004 order holding Thomas in contempt for failure to pay
child support, granting judgment for arrearages, and suspending commitment. A hearing on Alicia’s
January 2009 motion did not take place, however, until March 31, 2010. By that time, Thomas’s
attorney had withdrawn from the representation; according to the attorney’s motion to withdraw,
Thomas’s last known address was 305 Harris Boulevard in Conroe, Texas.1 Notice of the March 31
hearing was sent to that address but was returned “unclaimed.” Thomas did not personally appear
at the March 31 hearing.
Immediately following the March 31, 2010 hearing, the trial court signed an “Order
In Suit To Modify Parent-Child Relationship,” increasing Thomas’s monthly support obligation from
$500 to $750, and an “Order Holding Respondent in Contempt for Failure to Pay Child Support,
Granting Judgment For Arrearages, and Suspending Commitment” (the “contempt order”). As the
title implies, this second order granted Alicia a judgment for unpaid child support (in the amount of
$22,917.63) and an award of attorney’s fees and costs. In addition, the order adjudged Thomas in
contempt for each separate failure to pay child support and ordered that he be confined for each act
of contempt, but suspended commitment and placed him on community supervision for 36 months
or until the arrearages were paid in full.
On October 14, 2010, Alicia filed a subsequent Motion For Enforcement of Child
Support Order and Order To Appear in which she alleged that Thomas had violated the March 31
orders by failing to make payments of child support, child-support arrearages, and attorney’s fees.2
1
The record does not indicate that Thomas ever informed the court that he resided at any
address other than the one indicated by his attorney.
2
Alicia had, on October 1, 2010, presented a Motion to Revoke Suspension of Commitment
and Order to Appear by which she sought an Order For Capias and Setting of Bond, but, at Alicia’s
request, the court withdrew the capias by order dated October 14, 2010.
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By this motion, she requested that Thomas be held in contempt, jailed, and fined for each violation
alleged “from the date of this filing to the date of the hearing on this motion.” It is undisputed that
Thomas was personally served with a copy of the October 14 motion for enforcement and order to
appear for a hearing on the motion, scheduled for November 5, 2010.
On the same day as the hearing on Alicia’s subsequent motion for enforcement,
Thomas petitioned this Court for writ of habeas corpus and a request for emergency relief staying
all proceedings in the trial court. We granted the requested emergency relief pending our
consideration of Thomas’s habeas petition.
DISCUSSION
Texas courts of appeals have very limited jurisdiction over habeas corpus
proceedings. See Tex. Gov’t Code Ann. § 22.221(d) (West 2004). We may issue a writ of
habeas corpus only “when it appears that the restraint of liberty is by virtue of an order, process,
or commitment issued by a court or judge because of the violation of an order, judgment, or
decree previously made, rendered, or entered by the court or judge in a civil case.” Id. A writ of
habeas corpus will not issue, however, if the order is merely erroneous, rather than void. Ex parte
Swate, 922 S.W.3d 122, 124 (Tex. 1995). Here, Thomas complains that he is subject to being held
in contempt for violating a provision of the March 31 contempt order, and that to do so would violate
his due process rights because he was not physically present when that order was rendered. Under
section 157.066 of the family code, a respondent who fails to personally appear at a hearing
regarding enforcement of a previous court order cannot be held in contempt; rather, the court must
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issue a capias and have the respondent brought to court for the hearing. Tex. Fam. Code Ann.
§ 157.006 (West 2008).
We might agree with Thomas if in fact Alicia were attempting to enforce the
contempt portion of the March 31 order—i.e., if she now sought to restrain Thomas’s liberty based
on evidence of his pre-March 31, 2010 conduct that was adduced at a hearing at which he was
not present. The enforcement provisions in Alicia’s current Motion For Enforcement of Child
Support Order, however, addressed “entirely new acts of disobedience” that accrued on or after
April 1, 2010. In other words, Alicia seeks only to enforce the portions of the March 31 orders
relating to child-support arrearages and the award of attorney’s fees and costs. Thomas has not
shown that these portions of the March 31 order are invalid or void. Cf. id. (providing that, if
respondent does not appear at hearing on motion for enforcement of an existing court order,
regardless of whether motion is joined with other claims or remedies, “the court may not hold the
respondent in contempt but may, on proper proof, grant a default judgment for the relief sought”)
(emphasis added). It is undisputed that Thomas received notice of the hearing on this October 14
motion for enforcement; thus, there is every indication that he will have an opportunity to
prepare his response to the allegations contained therein and appear before the trial court “to
meet the charges by way of defense or explanation,” which is sufficient to satisfy due process.
See In re Zandi, 270 S.W.3d 76, 77-78 (Tex. 2008) (citing Ex parte Gordon, 584 S.W.2d 686, 688
(Tex. 1979)).
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Based on the foregoing, we hold that Thomas has not shown that he is entitled to
habeas relief. See In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009). We deny the petition and
dissolve our prior order granting a temporary stay.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Filed: February 24, 2011
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