in Re Joseph Michael Radmacher

Petition for Writ of Habeas Corpus Denied and Memorandum Opinion filed May 23, 2008

Petition for Writ of Habeas Corpus Denied and Memorandum Opinion filed May 23, 2008. 

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00346-CV

____________

IN RE JOSEPH MICHAEL RADMACHER, Relator

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

M E M O R A N D U M  O P I N I O N

On April 30, 2008, relator Joseph Michael Radmacher filed a petition for writ of habeas corpus seeking release from jail.  See Tex. Gov=t Code Ann. ' 22.221(d) (Vernon 2004); Tex. R. App. P. 52.  Relator contends that the contempt order issued against him is void, and that he was not afforded due process of law.  Because relator has not sustained his burden of demonstrating his entitlement to relief, we deny the petition.

                                                               BACKGROUND

This habeas corpus proceeding arises from a criminal contempt order that resulted in the confinement of relator for five specific instances of failure to pay court-ordered child support.  Both of his children are over the age of eighteen; however, the 1995 support order provided for indefinite support of relator=s older daughter, who was found to be physically and/or mentally disabled and unable to provide for herself as an adult.

On January 24, 2008, the children=s mother (real party in interest, Rita Garrobo) moved to enforce the support order through contempt and entry of judgment.  See Tex. Fam. Code Ann. ' 157.001 (Vernon 2002).  She asserted that relator was in arrears by at least $49,653.70, and had not paid court-ordered attorney fees. She identified five specific acts of non-compliance with the support order, and requested thatBfor each such violationBrelator be held in contempt, and fined $500.00 and confined in jail for up to six months.

Following a hearing on March 25, the relator was found to be in arrears by $51,583.22. Garrobo was granted a judgment in that amount.  Relator was also ordered to pay the outstanding attorney fees owed under the original support order, and additional fees incurred in the enforcement of the support order.  Finally, relator was found to be in criminal contempt of the support order, and was ordered to serve five concurrent 180-day jail sentences for each specific violation of the support order.

Relator was placed into custody on March 25, 2008, and now asks that we issue a writ of habeas corpus commanding his release.  He raises six contentions, which we fairly summarize as follows:

1.         He was denied the right to a jury trial;

2.         He was committed to jail without a valid written order of commitment;

3.         The respondent granted criminal contempt although Garrobo=s enforcement motion requested only civil contempt, thereby depriving relator of notice;

4.         The trial court lacked jurisdiction to punish with contempt;

5.         The contempt order lacks sufficient specificity to inform relator of the manner in which he violated the support order; and

6.         The contempt order is void because his nonpayment of attorney fees is not punishable by contempt.

                                                       STANDARD OF REVIEW

An original habeas corpus proceeding constitutes a collateral attack on the contempt order.  See Ex parte Dustman, 538 S.W.2d 409, 410 (Tex. 1976) (orig. proceeding).  The purpose of this proceeding is not to determine the relator=s guilt or innocence but, rather, to determine whether he was afforded due process of law, or the order of contempt is void.  See In re Broussard, 12 S.W.3d 827, 831 (Tex. App.BHouston [14th Dist.] 2003, orig. proceeding).  A release may be ordered when the contempt order is void, either because it was beyond the trial court=s power or because it deprived a contemnor of his liberty without due process of law.  See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980) (orig. proceeding).  When collaterally attacked in a habeas corpus proceeding, the contempt order is presumed valid unless the contemnor discharges his burden showing otherwise.  See Ex parte Occhipenti, 796 S.W.2d 805, 808-09 (Tex. App.BHouston [1st Dist.] 1990, orig. proceeding).

                                                     RIGHT TO A JURY TRIAL

Relator argues first that he was charged with a Aserious offense,@ and was therefore entitled to a trial by jury.  The right to a jury trial depends upon whether the offense can be classified as Apetty@ or Aserious.@  See Ex parte Werblud, 536 S.W.2d 542, 546 (Tex. 1976) (orig. proceeding).  A sentence of as much as six months is a petty offense, and may be imposed without a jury trial.  See id.  By contrast, a serious charge that results in imprisonment of longer than six months is constitutionally impermissible unless the contemnor is afforded the opportunity of a jury trial.  Id. at 547.  Where the contemnor is sentenced to no more than six months confinement for each of several acts, the punishment is nonetheless serious if the sentences must be served consecutively so as to add up to more than six months confinement.  In re Hammond, 155 S.W.3d 222, 226 (Tex. App.BEl Paso 2004, orig. proceeding).

Although relator=s five 180-day sentences^[1] would exceed six months confinement if served consecutively, the trial court=s contempt order clearly specifies that the periods of confinement Ashall run and be satisfied concurrently.@  Relator=s confinement will not exceed 180 days.  See Taylor v. Hayes, 418 U.S. 488, 495-96 (1974) (finding that eight concurrently-running sentences, each of six months, was nonetheless petty punishment), cited in In re Brown, 114 S.W.3d 7, 11 (Tex. App.BAmarillo 2003, orig. proceeding). Relator was therefore not charged with a serious offense.^[2] See Werblud, 536 S.W.2d at 546.

Relator argues, however, that In re Sproull requires a jury trial whenever confinement Amay exceed six months.@  815 S.W.2d 250, 250 (Tex. 1991).  He suggests that, because his possible punishment exceeded six months confinement, he was entitled to a jury trial.  However, we do not read Sproull as a departure from the Werblud standard that A[c]ases of criminal contempt, where the sentence actually imposed does not exceed six months imprisonment, are exempted from the requirements of a jury trial.@  Werblud, 536 S.W.2d at 547 (emphasis added).  Notably, the contemnor in Sproull was entitled to a jury trial under Werblud, where the contempt order actually imposed 136 consecutive sentences of 60 days confinement,  totaling 8,160 days confinement.  See Sproull, 815 S.W.2d at 250.  The Supreme Court was not presented with a unique fact pattern in which the possible punishment was serious, but the actual punishment petty.  Because this distinction did not present itself therein, we decline to read one statement in Sproull as an advisory opinion on a fact pattern not then before the Court.^[3]

Moreover, the Supreme Court=s original pronouncement in Werblud followed a discussion of federal law in which the Court cited Taylor v. Hayes in announcing that the Asentence actually imposed@ drives the jury-trial determination.  Werblud, 536 S.W.2d at 547.  The possible punishment in Taylor would have exceeded six months confinement but, because the sentences actually imposed were ordered to run concurrently, the U.S. Supreme Court held that the contemnor was not entitled to a trial by jury.  See Taylor, 418 U.S. at 495-96.  It is doubtful, then, that the Supreme Court intended to overrule Werblud or disagree with Taylor on a fact pattern that was not at issue in Sproull.

We therefore overrule relator=s first issue.

                                     SUFFICIENCY OF COMMITMENT ORDER

Relator argues in his second issue that the language of commitment in the contempt judgment issued on March 26, 2008 is legally insufficient because it omits a specific directive to a sheriff or other appropriate officer to take him into custody.  See Ex parte Hernandez, 827 S.W.2d 858, 858 (Tex. 1992) (orig. proceeding).

Since Hernandez was decided, the courts of appeals have disagreed about the specificity and sufficiency of the Adirective@ language that must be in place in a valid commitment order. See In re Zapata, 129 S.W.3d 775, 778 (Tex. App.BWaco 2004, orig. proceeding) (surveying Texas appellate court decisions interpreting Hernandez).  The determining factor appears to be whether the commitment order actually directs a sheriff or ministerial officer to take the person into custody.  See id. at 780; Ex parte Ustick, 9 S.W.3d 922, 925 (Tex. App.BWaco 2000, orig. proceeding).

We need not reach this issue of whether the commitment language in the March 26 contempt judgment^[4] satisfies the Hernandez requirement because, at the time that relator was actually taken into custody on March 25, there was a separate valid written commitment order that specifically instructed the Harris County Sheriff to Atake into his custody and commit to the jail of Harris County, Texas, Joseph Radmacher to be confined in accordance with the judgment of contempt of this Court or until [Radmacher] is otherwise legally discharged.@

We overrule relator=s second issue.

                                            CIVIL AND CRIMINAL CONTEMPT

Relator contends further that he was not given timely notice of the type of contempt proceeding that had been brought by Garrobo.  Specifically, he claims that she requested only civil coercive contempt, but that the respondent instead ordered him incarcerated for criminal contempt.

Civil contempt is intended to be remedial and coercive in nature.  Werblud, 536 S.W.2d at 545.  Imprisonment is conditional upon obedience and, accordingly, the jailed contemnor may procure his release by complying with the court=s order.  See id.  Criminal contempt, by contrast, is punitive in nature.  Id.  A punishment for criminal contempt is fixed and definite, and no act of voluntary compliance by the contemnor will avoid the entire punishment affixed by the court.  See id. at 546.  Because child support contempt proceedings are quasi-criminal in nature, relator was entitled to procedural due process.  See in re Smith, 981 S.W.2d 909, 911 (Tex. App.BHouston [1st Dist.] 1998, orig. proceeding).  A denial of due process occurs when the trial court grants a form of relief that was not requested.  See id.

  Relator incorrectly argues that Garrabo prayed for no more than civil coercive contempt.  Garrobo=s enforcement motion does request civil coercive contempt, but elsewhere additionally requests unconditional incarceration:

Movant believes, based on the repeated past violations of the Court=s order by [Radmacher] that [he] will continue to fail to comply with the order.  Movant requests that JOSEPH MICHAEL RADMACHER be held in contempt, jailed for six months, and/or fined $500.00 for each failure to comply with this Court=s order from the date of this filing to the date of the haring on this Motion.

This is a request for criminal contempt because, if granted, no act of compliance by relator could effect his release.  Because the enforcement motion requested both civil coercive and criminal contempt, relator=s due process rights were not violated.  See Smith, 981 S.W.2d at 911.

We overrule relator=s third issue.

                                        JURISDICTION TO ORDER CONTEMPT

Relator next argues that the trial court=s jurisdiction to impose contempt should have expired two years after his youngest child turned eighteen.  Relator cites Section 157.005 of the Family Code, which provides as follows:

(a) The court retains jurisdiction to render a contempt order for failure to comply with the child support order if the motion for enforcement is filed not later than the second anniversary of the date:

(1) the child becomes an adult; or

(2) on which the child support obligation terminates under the order or by operation of law.

Tex. Fam. Code Ann. ' 157.005(a) (Vernon Supp. 2007). Relator concedes that his child support obligations continued past his children=s eighteenth birthdays, on an indefinite basis, because of the continuing needs of his disabled daughter.  See id. ' 154.001(a)(4) (allowing a trial court to order child support Afor an indefinite period@ if the child is disabled); ' 154.302 (identifying Adisability@ as the child=s need for substantial care and personal supervision because of a physical or mental disability, and the child=s inability to provide self-support).

Relator claims that a trial court=s contempt jurisdiction may not be extended indefinitely simply because the support obligation does, citing In re Munks.  No. 01-07-00094-CV, 2007 WL 1844893 (Tex. App.BHouston [14th Dist.] June 28, 2007, orig. proceeding) (mem. op.).  Relator=s reliance is misplaced.  Munks holds that the trial court=s contempt jurisdiction may not be extended simply because the respondent continues to make arrearage payments after the child=s eighteenth birthday:

A[T]o hold that contempt jurisdiction might be extended by ordering a payment schedule, on accrued arrearages, could result in contempt proceedings being brought at an almost infinite period of time after the child had reached adulthood, an obvious abrogation of the legislature=s intent.@

Id. at *4 (quoting In re Dickinson, 829 S.W.2d 919, 921 (Tex. App.BAmarillo 1992, orig. proceeding)) (emphasis added).  This distinctionBthat one=s child support obligation may not be extended due to arrearagesBis an important one.  Section 157.005(a) limits contempt jurisdiction to a fixed period after the expiration of the support obligation.  Because Munks=s support obligation terminated when his child turned eighteen, see id. at *3, to allow the trial court to exert jurisdiction simply because Munks had not paid all amounts owing before the expiration of his obligation, would clearly abrogate the legislature=s intent in limiting contempt jurisdiction.

By contrast, relator=s child support obligation continued indefinitely, as is authorized by statute, due to his child=s disability.  See Tex. Fam. Code Ann. ' 154.001(a)(4).   Because his child support obligation continues, the trial court retains jurisdiction to order criminal contempt.

Relator=s fourth issue is overruled.

                                           SPECIFICITY AND ATTORNEY FEES

Relator=s last two issues complain that the contempt order fails to identify the specific acts through which he violated the child support order, and that he was improperly incarcerated for failing to pay Garrobo=s attorney fees.  We disagree.  Although the enforcement order granted judgment against relator for past arrearages and attorney fees, criminal contempt was ordered only for five specific acts of non-compliance, which were consistently described throughout the order as Aviolations.@  The contempt order satisfies Family Code section 157.166(b), as it specifically lists the date of each occasion of contemptible conduct, and expressly identifies that relator was adjudged Ain contempt for each separate violation.@  Although relator was ordered to pay attorney fees, both as part of the 1995 support order and to reimburse Garrobo for having to move for enforcement, relator was not held in contempt for the failure to pay such fees.

Relator=s fifth and sixth issues are overruled.

Accordingly, we deny relator=s petition for writ of habeas corpus.

PER CURIAM

Petition Denied and Memorandum Opinion filed May 23, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

---

¹           Relator incorrectly claims that the contempt order incarcerated him for thirteen violations of the support order.  However, this distinction is unimportant in the resolution of this issue because, if ordered to run consecutively, even five sentences of six-month confinement (instead of thirteen) would still be Aserious punishment.@  See Hammond, 155 S.W.3d at 226.

²           We also note that the record does not contain a request for a jury trial.  Because of our resolution of this issue, we need not decide whether relator would be entitled to a jury trial notwithstanding his apparent failure to request one.

³           The appellate courts in Waco and Eastland have interpreted Sproull as holding that the possible punishment, not the sentence actually imposed, determines the contemnor=s right to a trial by jury.  See Ex parte York, 899 S.W.2d 47, 49 (Tex. App.BWaco 1995, orig. proceeding); In re Baker, 99 S.W.3d 230, 232 (Tex. App.BEastland 2003, orig. proceeding).  For the reasons stated above, we respectfully disagree with this interpretation of Sproull. See also In re Bourg, No. 01-07-00623-CV, 2007 WL 2446844, at *3 (Tex. App.BHouston [1st Dist.] 2007, orig. proceeding) (mem. op.) (finding no right to a jury trial where the trial court actually imposed five 180-day concurrent sentences); Hammond, 155 S.W.3d at 226 (examining the length of confinement and whether the sentences are to be served concurrently or consecutively); Ex parte Casillas, 25 S.W.3d 296, 299 (Tex. App.BSan Antonio 2000, orig. proceeding) (looking at the Apunishment assessed,@ and what was Aimposed@); In re Levingson, 996 S.W.2d 936, 938 (Tex. App.BHouston [14th Dist.] 1999, orig. proceeding) (granting habeas relief because the contemnor was sentenced to jail for a period of almost nine months@); In re Brown, 114 S.W.3d 7, 12 (Tex. App.BTyler 2003, orig. proceeding) (AWerblud states clearly the applicable dividing line between petty and serious contempt ... the punishment imposed determines whether the contempt is petty or serious, not the punishment possible.@).

⁴           The commitment order contained in the March 26, 2008 contempt judgment provides as follows:

IT IS THEREFORE ORDERED that [Radmacher] is committed to the county jail of Harris County, Texas, for a period of 180 days for each separate violation enumerated above.