in Re: George A. Horan ( 2003 )

Petition for Writ of Habeas Corpus Denied; Emergency Relief Denied, and Memorandum Opinion filed December 23, 2003

Petition for Writ of Habeas Corpus Denied; Emergency Relief Denied, and Memorandum Opinion filed December 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-01333-CV

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IN RE GEORGE A. HORAN , Relator

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ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

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M E M O R A N D U M   O P I N I O N

            On November 26, 2003, relator, George A. Horan, filed a petition for writ of habeas corpus seeking release from jail, where he has been sent for contempt of court.  See Tex. Gov’t Code Ann. § 22.221(d) (Vernon Supp. 2000); Tex. R. App. P. 52.  In three issues, Horan contends he is entitled to unconditional release from jail because (1) the child support obligations for which he was found in contempt were resolved previously by a Rule 11 agreement; (2) the trial court violated his due process rights by prohibiting him from presenting evidence in support of an affirmative defense; and (3) the trial court violated his due process rights by refusing to allow him to make a bill of exceptions about the Rule 11 agreement.  We deny Horan’s petition for writ of habeas corpus and his request for emergency relief.

Background

            Horan and his ex-wife, Katherine Grigsby, divorced in December 1995.  The final decree named Grigsby as managing conservator of the couple’s four children and obligated Horan to pay child support, actual costs of medical insurance premiums for the children, and fifty percent of uninsured health care expenses. Horan continually failed to make the ordered payments.  In May 2002, Horan’s ex-wife filed a motion to enforce and set it for hearing in August 2002.  On August 1, 2002, the parties passed the enforcement hearing and reached a Rule 11 agreement under which Horan was to pay a total of $50,000 by November 14, 2002.  Under the Rule 11 agreement, Horan also received a credit and reduced monthly child support obligations for the future. Horan did not comply with the deadlines in the Rule 11 agreement. 

            In March 2003 and October 2003, Horan’s ex-wife filed a second and third motion to enforce by contempt.  Horan responded to his ex-wife’s pleadings by seeking declaratory judgment on the Rule 11 agreement and credit towards his child support arrearage for months that two of the children lived with him.  In hearings on these issues on November 17 and 19, 2003, the trial court found that it had not rendered judgment on the Rule 11 agreement, dismissed Horan’s motion for declaratory judgment, held an evidentiary hearing on the motion to enforce, gave Horan credit towards his child support obligations for periods that his children lived with him, found that Horan was $79,330.81 in arrearage for child support and medical insurance premiums, and found Horan in contempt for each of his failures to pay.  The trial court reduced the $79,330.81 arrearage to judgment, awarded attorney’s fees to Horan’s ex-wife, and sentenced Horan to sixty days’ confinement for each count of contempt, to run concurrently.  Lastly, the trial court found Horan in civil contempt and ordered that his confinement continue past the sixty days until he pays his child support arrearage and his ex-wife’s attorney’s fees in full. 

Rule 11 Agreement

            In his first issue, Horan contends that his child support obligations were previously resolved by the Rule 11 agreement that he and his ex-wife signed.  Parents do not have the power to effect a modification of a court order regarding child support without approval of the court.  In re McLemore, 515 S.W.2d 356, 357 (Tex. Civ. App.—Dallas 1974, no writ).  Under section 154.124 of the Family Code, if a trial court finds that such an agreement is in a child’s best interest, the court shall render an order in accordance with the agreement.  Horan argues that the trial court twice rendered the Rule 11 agreement as an order of the court.

            First, Horan contends the trial court rendered during a hearing on November 14, 2002. He contends the trial court threatened him with jail if he did not comply with the Rule 11 agreement by instructing him, “Bring the $40,000 by November 21st or bring your toothbrush.” Although a judgment can be rendered orally, this hearing was not recorded by a court reporter; thus, there is no record of an oral rendition.  Horan cites the trial court’s docket entry as proof that the court rendered on November 14: “Pass hearing–reset 11-21-02 @ 10am–$40,000.00 to be paid per Rule 11 agreement.”  However, a docket entry does not suffice as a written order.  See Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995).

            Second, Horan relies on the following statement by an associate judge as proof that the trial court rendered judgment orally upon the Rule 11 agreement: “Judge Galik says that she had rendered on this matter on the Rule 11 Agreement and that she’s waiting on an order on the Rule 11 agreement.”  Rendition is a judicial act by which the court declares the decision of law upon matters at issue.  W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex. App.—Houston [1st Dist.] 1990, no writ).  The associate judge’s remark is simply a second-hand reference to an alleged rendition.  There is no reporter’s record of an oral ruling by the trial court.  Further, there is no written order by the trial court accepting, adopting, or enforcing the Rule 11 agreement.  In a later hearing, the trial court specifically denied rendering upon the Rule 11 agreement: “This Court didn’t approve and adopt that as an order.”

            Because the trial court did not render an order in accordance with the Rule 11 agreement, and because the trial court’s approval was necessary for the Rule 11 agreement to supplant the final decree’s provisions, we disagree that Horan’s child support obligations were resolved by the Rule 11 agreement.  We overrule issue one.

Affirmative Defense Evidence

            In his second issue, Horan contends that his due process rights were violated by the trial court’s refusal to permit evidence of his inability to pay.  Procedural due process requires reasonable notice of the charges alleged with a reasonable opportunity to meet the charges by defense or explanation.  In re Houston, 92 S.W.3d 870, 876 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).  In the contempt hearing, Horan asked one witness, “Are you familiar with your brother’s income producing activities since 1995?”  Horan’s ex-wife objected that the affirmative defense of inability to pay had not been pleaded.  The court sustained the objection.

            Under the Family Code, inability to pay child support is an affirmative defense in a contempt proceeding:  “An obligor may plead as an affirmative defense to an allegation of contempt . . . that the obligor: (1) lacked the ability to provide support in the amount ordered.”  Tex. Fam. Code Ann. § 157.008(c) (Vernon 2002).  Under the rules of civil procedure, an affirmative defense must be pleaded.  Tex. R. Civ. P. 94; see Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001); Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  Horan contends that because a contempt proceeding is quasi-criminal, see Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983), the rules of criminal procedure apply instead of the rules of civil procedure.  He argues that under criminal law, affirmative defenses need not be pleaded.

            Regardless of whether civil procedure rules apply to contempt proceedings, Horan must demonstrate an actual violation of his right to due process. The record before this court reflects that Horan attempted to cross-examine only one witness about his alleged inability to pay.  He called no witnesses during his case-in-chief.  He did not make an offer of proof on his alleged inability to pay, nor did he request the opportunity to make such an offer. 

            Claims of error, including due process violations, may not be predicated on the exclusion of evidence if the record does not show what the evidence would have been.  See Tex. R. Evid. 103; McIntosh v. State, 855 S.W.2d 753, 760 (Tex. App.—Dallas 1993, pet. ref’d) (no due process violation where defendant failed to make offer of proof); Siegel v. State, 814 S.W.2d 404, 410-11 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (no due process violation where defendant was free to make an offer of proof or bill of exception, but did not); In re McAda, 780 S.W.2d 307, 313 (Tex. App.—Amarillo 1989, writ denied) (no violation of procedural due process in termination of parental rights proceeding where mother failed to make a bill of exceptions); see Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (in claim of due process violation, defendant made bill of exceptions regarding mitigating evidence excluded by trial court); Ex parte Luster, 2002 WL 31618423, at *1 (Tex. App.—Amarillo Nov. 20, 2002, orig. proceeding) (not designated for publication) (wife tendered evidence regarding inability to comply with possession order in a bill of exceptions); cf. Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1981) (holding that procedural due process complaints are subject to waiver under ordinary preservation-of-error rules); Ex parte Alakayi, 102 S.W.3d 426, 434 (Tex. App.—Houston [14th Dist.] 2003, pet. filed) (probationer’s due process rights not violated where he received a hearing and failed to request permission to introduce additional evidence).

            Further, an offer of proof was necessary here because the substance of the evidence was not apparent from the context of the one question asked by Horan’s counsel, “Are you familiar with your brother’s income producing activities since 1995?”  See Tex. R. Evid. 103(a)(2).  To establish a defense to civil contempt, there must be evidence that the person ordered to pay does not now have, and has no source from which to obtain, the amount in arrears.  See Ex parte Williams, 704 S.W.2d 465, 467 (Tex. App.—Houston [1st Dist.] 1986, orig. proceeding). However, current inability to pay is no defense to criminal contempt.  Ex parte Robertson, 880 S.W.2d 803, 803 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding).  As a defense to criminal contempt, the person ordered to pay must show inability to pay at each time payment accrued.  Ex parte Ramon, 821 S.W.2d 711, 713 (Tex. App.—San Antonio 1991, orig. proceeding).  “If he fails to carry that burden as to even one delinquent payment, the criminal contempt judgment is not void.”  Id.

            Here, the context of Horan’s question did not set forth his inability to pay each time a payment accrued or his present inability to pay.  Thus, he was required to make a bill of exceptions or offer of proof.  Without such proof, his claim of due process violation fails.  We overrule issue two.

Bill of Exceptions

            In his third issue, Horan contends that the trial court violated his due process rights by refusing to allow him to make a bill of exceptions about the Rule 11 agreement.  In the contempt hearing, Horan attempted to cross-examine his ex-wife about the Rule 11 agreement.  The trial court explained to Horan that the court already had addressed the Rule 11 agreement in a separate hearing before the contempt hearing began.  When Horan asked to create a bill of exceptions, the trial court told him repeatedly that he could make a bill of exceptions later, after the contempt hearing.^[1]  Nothing in the record indicates that Horan objected to the trial court’s scheduling or that Horan later attempted to make a bill of exceptions.  Because the trial court did not prevent Horan’s bill of exceptions and because Horan did not object to the court’s ruling as to timing, we overrule issue three.

            Having overruled all three issues, we deny relator’s petition for writ of habeas corpus and his request for emergency relief.

                                                                                                PER CURIAM

Petition Denied and Memorandum Opinion filed December 23, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

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            ^[1] “[Y]our Bill you can do later. . . . [A]ny Bills you’re going to do, Counsel, on the hearing that we held prior to this contempt trial starting–you can do any Bills you want but not during my trial time. We’re running on a tight schedule as you know. . . . [Y]ou can do that later whenever my court time is not being taken up.”  Later, the trial court again explained, “Again, Counsel, whenever this trial is over, the Bill that you want to put on for something prior, you can do it later.  I’m not saying that you can’t do it, but not during my trial because that hearing has been had and ruled on.”