Ex Parte: Kenneth Brewer

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-544-CV





EX PARTE: KENNETH BREWER,

RELATOR

HABEAS CORPUS PROCEEDING FROM BURNET COUNTY

PER CURIAM

By his original habeas corpus proceeding, relator Kenneth Brewer seeks discharge from the custody of the sheriff of Burnet County. See Tex. Gov't Code Ann. § 22.221(d) (West Supp. 1995); Tex. R. App. P. 120. Brewer is confined pursuant to an order of contempt rendered by the district court of Burnet County on September 23, 1994. ⁽¹⁾ Brewer asserts that he is illegally restrained because the district court held him in contempt for matters not raised in the motion for contempt and because he was twice held in contempt for the same actions. Because we conclude that the order of contempt is void, we will order Brewer discharged.

In June 1992, the district court issued temporary orders (the "June order") appointing the Texas Department of Protective and Regulatory Services ("TDPRS") temporary managing conservator of Brewer's three children and ordering him to pay child support in the amount of $200 per month. See Tex. Fam. Code Ann. § 11.11(a) (West Supp. 1995). One year later, the support payments were apparently reduced to $150 per month. In April 1994, TDPRS filed a motion for contempt requesting that the trial court find Brewer in contempt for his failure to pay child support as ordered. See Tex. Fam. Code Ann. §§ 11.11(h), 14.312 (West Supp. 1995); see Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (order requiring temporary support payments is enforceable by contempt). After a hearing, the trial court found that Brewer had violated the June order and was in arrears in the amount of $4650; held him in contempt for the violation; and assessed punishment at confinement in the Burnet County jail for a period of six months. ⁽²⁾

An application for writ of habeas corpus is a collateral attack on the trial court's order of contempt. The relator has the burden to demonstrate that the order was void, not merely erroneous. Ex parte Christensen, 868 S.W.2d 376, 378 (Tex. App.--Houston [1st Dist.] 1993, orig. proceeding). A relator may show that the order is void either because it was beyond the power of the court to issue such an order or because the order deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980); Ex parte Stephens, 734 S.W.2d 761, 762 (Tex. App.--Fort Worth 1987, orig. proceeding); see Ex parte Williams, 704 S.W.2d 465, 468 (Tex. App.--Houston [1st Dist.] 1986, orig. proceeding) (contempt order and proceedings and orders underlying it must satisfy procedural and substantive due process). If the judgment ordering confinement is void, the confinement is illegal and the relator is entitled to discharge. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).

In his first point of error, Brewer asserts that the contempt order is void because he was found in contempt for failure to pay support of $4650 although TDPRS alleged nonpayment of support in the amount of $3900 in the motion for contempt. The motion states:

Orders were given on June 14, 1992 for Mr. Brewer to pay child support of $200.00 per month until June 15, 1993, then the payments were changed to $150.00 per month. Mr. Brewer is in arrears by $3900.00. Payment schedule attached hereto and made a part hereof for all intents and purposes. ⁽³⁾

The payment schedule lists each date a payment was due, the amount due, the payments Brewer made, and a total unpaid amount of $3900 for the period June 15, 1992, through April 1, 1994. The trial court, however, held Brewer in contempt for the violation of "the order of this Court dated June 19, 1992, as follows: The Court finds that Respondent, Kenneth Brewer, was Ordered to make payments for the temporary support of [his] children and is in arrears in the amount of $4,650.00 . . . ." This amount apparently includes payments due from the date TDPRS filed its motion through the date of the order of contempt.

Due process requires that a party receive full and unambiguous notification of the charges against him so that he has a reasonable opportunity to respond adequately. Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989); Gordon, 584 S.W.2d at 689-90. A contempt judgment rendered without such notification is a nullity. Gordon, 584 S.W.2d at 688. Accordingly, a motion to enforce an order for child support by contempt must state the amount owed, any amount paid and the amount of arrearage; must allege the portion of the support order violated; and must specify "as to each date of alleged contempt the amount due and the amount paid, if any." Tex. Fam. Code Ann. §§ 14.311(b), .312(a) (West Supp. 1995). The motion satisfied these criteria for past due amounts by incorporation of the payment schedule.

However, the motion here did not allege that anticipated future violations of a child-support order might occur between the time of the filing of the motion and the date of the hearing on the motion. See Tex. Fam. Code Ann. § 14.311(e) (West Supp. 1995); Ex parte Occhipenti, 796 S.W.2d 805, 810 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding) (pleading that future violations of nature similar to past violations pleaded might arise was sufficient notice that relator intended to be held in contempt for contemptuous acts arising after motion filed). Because the motion for contempt did not assert anticipated future violations as a basis for contempt, the motion did not give Brewer full and unambiguous notice of the accusations of contempt. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987); Stephens, 734 S.W.2d at 764) (judgment holding relator in contempt for failure to pay timely void because motion for contempt alleged only that relator failed to pay).

Before concluding that the order of contempt is void, we address the question whether the issue of contempt for failure to pay amounts not alleged in the motion was tried by consent. The proceeding is before this Court without a statement of facts; therefore, we have no record to show whether Brewer objected to any evidence offered regarding amounts owed in addition to the amount of $3900 alleged in the motion. At oral argument, Brewer's counsel stated that he would submit a stipulation regarding his objection to the TDPRS's offer of proof of the additional amounts. To date, the Clerk of his Court has not received a stipulation.

Nevertheless, we conclude that, even if Brewer did not object, the issue was not tried by consent. ⁽⁴⁾ The supreme court has noted that a contempt proceeding is unlike an ordinary civil proceeding:

The alleged contemnor may not ignore the show cause order as he might ignore citation in a civil suit, for if he does he may be brought in under a capias. The hearing has some of the incidents of a trial for crime inasmuch as penal sanctions may be imposed and the alleged contemnor's appearance, not being voluntary, cannot be taken as a consent to trial on other charges.

Gordon, 584 S.W.2d at 689 (quoting Ex parte Davis, 344 S.W.2d 153, 155-56 (Tex. 1961)). The nature of the proceeding requires that a party have notice of each allegation for which he may be held in contempt and precludes trial of an issue by consent.

We also consider whether Brewer must show that he excepted to the failure to plead future violations. In some instances, a relator may waive a complaint about the specificity of an allegation in the motion for contempt if he does not specially except to the motion in the trial court. Tex. R. Civ. P. 90; Occhipenti, 796 S.W.2d at 810; Stephens, 734 S.W.2d at 762; Ex parte Blackmon, 529 S.W.2d 570, 573 (Tex. Civ. App.--Houston [1st Dist.] 1975, orig. proceeding); see Tex. Fam. Code Ann. § 14.311(f) (West Supp. 1995) (special exceptions on motion to enforce). The defect here, however, is an absence of any allegation; Brewer had no pleading on which to base a special exception. Accordingly, the trial court may not have found Brewer in contempt for any violations of the child support order not alleged in the motion for contempt. The order of contempt is void; we sustain Brewer's first point of error. See Gordon, 584 S.W.2d at 689 (a judgment finding one in contempt is void when the order is based upon matter foreign to accusation of contempt) (quoting Ex parte Padron, 565 S.W.2d 921, 925 (Tex. 1978)).

If an order assesses one punishment for more than one act of contempt and one act is not punishable by contempt, the entire order is void. Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986); Ex parte Herrera, 820 S.W.2d 54, 56 (Tex. App.--Houston [14th Dist.] 1991, orig. proceeding). The order here does not assess separate penalties for each failure to pay child support. Accordingly, the entire order is void because the trial court could not hold Brewer in contempt for failure to pay more than $3900 in child support. Davila, 718 S.W.2d at 282; Herrera, 820 S.W.2d at 57. We, therefore, sustain Brewer's first point of error.

Because we have determined that the order is entirely void on the basis that the trial court held Brewer in contempt for violations not alleged in the motion for contempt, we need not address his second point of error. We order relator Kenneth Brewer discharged from the custody of the Burnet County sheriff.

Before Justices Jones, Kidd and B. A. Smith

Relator Ordered Discharged

Filed: January 11, 1995

Do Not Publish

1. ¹ The sheriff took Brewer into custody on the same day pursuant to the court's writ of commitment. This Court granted Brewer's application for writ of habeas corpus and directed issuance of the writ and his release on bond on October 21, 1994.

2. ² The contempt order is only criminal in nature because the sentence is fixed and definite and Brewer cannot avoid the punishment by voluntary compliance. Ex parte Werblud, 536 S.W.2d 542, 545-46 (Tex. 1976); Ex parte Johns, 807 S.W.2d 768, 771 (Tex. App.--Dallas 1991, orig. proceeding).

3. ³ The temporary order setting child support states that the trial court held a hearing on June 15, 1992. The trial court signed the order on August 3, 1992. The motion for contempt states that the trial court entered an order on June 19, 1992, and then refers to orders given on June 14, 1992. Additionally, the motion states that payments were reduced in June 1993 but does not refer to a specific order reducing the payments.

4. ⁴ Generally, parties seeking affirmative relief are restricted in their recovery to the claims asserted in the pleadings. Realtex Corp. v. Tyler, 627 S.W.2d 441, 443 (Tex. App.--Houston [1st Dist.] 1981, no writ). An issue may be tried by consent when evidence upon such issue is developed under circumstances in which the parties understand that the issue was in the case and the complaining party does not make an appropriate complaint. Tex. R. Civ. P. 67; Realtex Corp., 627 S.W.2d at 443. The doctrine applies only in exceptional cases in which the record clearly shows that the parties tried the unpleaded issue. Austin Area Teachers Fed. Credit Union v. First City Bank--Northwest Hills, N.A., 825 S.W.2d 795, 800 (Tex. App.--Austin 1992, writ denied).