Ex parte Spicer , 1969 Tex. App. LEXIS 2775 ( 1969 )

BARRON, Justice

(concurring).

I reluctantly concur with the majority in this case by reason of recent decisions by our Supreme Court such as Ex parte Rohleder, 424 S.W.2d 891 (Tex.Sup.), and cases therein cited.

I recognize the established rule that where it is not within the power of a person to perform the act which alone will purge him of contempt, the court is without power to imprison him for an indefinite term as punishment for an offense or offenses already committed. And I recognize the rule that if the evidence conclusively establishes that at the time of the contempt hearing relator did not have, and had no source from which he might reasonably be expected to obtain the delinquent child support payments, a court exceeds its power in ordering that relator be imprisoned until the delinquent payments are made.

In my opinion the evidence and the quoted testimony contained in the court’s opinion are not conclusive. Relator made no offer to pay or assist in the support of his children in any way, though it is clear that he was employed prior to his commitment to jail on July 17, 1969. His testimony was general and not specific concerning his ability to pay and his efforts to obtain at least a portion of the arrearages, and it was such that his former wife, in the absence of careful preparation of her case and full anticipation beforehand of the substance of his testimony, could not have refuted successfully. In my opinion, considering the past acts of relator and his personal interest in the case in giving his testimony, the trial court, under the circumstances, should have had the lawful right to disbelieve relator totally. In my opinion, reasonable minds could surely differ as to the conclusion, either that he could or could not perform as ordered. The burden of proof was relator’s.

I recognize that decisions of this type are difficult and that the applicable rules of law are necessary. Injustice and genuine harm can result, however, either to the defaulting parent or to the minor children involved. But I would not ordinarily agree that an interested party could take the witness stand and deny generally that he could pay at least a portion of the arrear-ages, make no offer to comply in any respect, and be discharged even though the record shows that he has been gainfully employed. His reasons for not being able to comply with the order of the trial court should be specific and definite in all respects when the needs and welfare of his minor children are involved. Moreover, the trial court has full authority to correct a coercive order in a hopeless case.

Considering the state of the law in this regard, counsel representing the custodian and minor children of a defaulting parent are urged to prepare themselves to meet similar defenses which are almost sure to be raised in many cases.

The doctrine of res judicata is not necessarily applicable in a habeas corpus proceeding, the attack on the judgment being collateral and the question being whether the contempt order is void. See 39 C.J.S. Habeas Corpus § 104, pp. 695-697; Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989.

We cannot correct a trial court’s order, reform it or reverse and remand the order on habeas corpus. Habeas corpus proceedings can only attack void orders. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249, 250. I concur with the majority because I believe this Court has applied the correct rules as laid down by the Supreme Court of Texas.