in Re Kendrick Earl Edwards

Opinion issued May 18, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-10-00992-CV

____________

IN RE KENDRICK EARL EDWARDS, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM OPINION

Relator, Kendrick Earl Edwards, has filed a petition for writ of habeas corpus, challenging the trial court’s November 11, 2010 order holding him in criminal and civil contempt for failing to pay child support and commanding that he be confined to jail for 180 days, to be served concurrently, for each of 90 violations of an underlying child support order[1] and that he be confined thereafter until he paid a child-support arrearage of $47,400.13, attorney’s fees of $8,500, and other costs.  In five issues, Edwards contends that (1) “[t]he face of the trial court’s order of contempt and commitment does not affirmatively state that” it had jurisdiction over Edwards or over the minor child made the subject of the support order; (2) the trial court lacked jurisdiction over the minor child who had not been a resident of Harris County for at least six months; (3) the child support order is neither attached to the contempt order nor incorporated therein by reference; (4) there is no evidence of an arrearage from any agency responsible for collection of child support; and (5) the criminal contempt portion of the order fails to specify the number of days the concurrent sentences are to be served. 

We previously ordered that Edwards be released on bond, pending the outcome of this proceeding, and we now grant habeas relief.

Background

In the underlying proceeding, real party in interest, Jenny Itam, moved the trial court for enforcement of a child support order and to hold Edwards in contempt.  Itam alleged that the trial court, in its 2002 divorce decree, had ordered Edwards to pay child support, beginning June 8, 2003, in the amount of $500 per month and that Edwards, on 86 occasions, had failed to pay support as ordered.  Itam asked the trial court to hold Edwards in contempt, incarcerate him for 180 days, to be served consecutively, for each of the alleged occasions, and fine him $500 for each occasion.  Itam also sought $43,000 in arrearages and $9,130.17 in interest, attorney’s fees, and costs. 

Edwards denied the allegations and asserted that he was not in arrears as alleged.

On November 11, 2010, the trial court held a hearing on Itam’s motion to enforce and found that Edwards, from June 8, 2003 to November 8, 2010, had failed to pay child support in the amount of $500 per month.  The court held that each of 90 failures to pay constituted a separate act of contempt, and it ordered that Edwards be confined for 180 days for each act, with the periods of confinement to run concurrently.  Additionally, for civil-coercive measure, the trial court ordered that, upon serving his sentence for criminal contempt, Edwards was to remain confined until he purged himself of contempt by paying $47,400.13[2] in child support, $8,500 in attorney’s fees, and $63.00 in costs.

Standard of Review

Texas courts of appeals have very limited jurisdiction over habeas corpus proceedings.  See Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004).  The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined.  Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); In re Munks, 263 S.W.3d 270, 272 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding).  A writ of habeas corpus will issue if a trial court’s contempt order is void because it was beyond the court’s power to issue or if the court did not afford the relator due process of law.  In re Henry, 154 S.W.3d 594, 596 (Tex. 2005).  The relator bears the burden to show that a contempt order is void and not merely voidable.  Munks, 263 S.W.3d at 272–73.  Until the relator has discharged his burden of showing his entitlement to relief, the contempt order is presumed valid.  In re Parr, 199 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).  On review, we do not weigh the proof and determine whether it preponderates for or against the relator; we determine only whether the contempt order is void. Ex parte Chambers, 898 S.W.2d 257, 259–60 (Tex. 1995). 

Trial Court’s Jurisdiction

In his first and second issues, Edwards argues that the contempt order is void because (1) it, on its face, “does not affirmatively state that” the trial court had jurisdiction over Edwards or over the minor child made the subject of the support order and (2) the trial court lacked jurisdiction over the minor child who had not resided in Harris County for at least six months.

A trial court’s judgment is void if it is apparent that the court lacked jurisdiction over the parties.  Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). 

In response to Edwards’s first point, we note that our review of the contempt order reveals that it expressly states, “THE COURT FINDS that . . . it has jurisdiction over the parties and the subject matter of this suit.” 

In response to his second point, Edwards asserts that “[t]he trial court order does not affirmatively show” that the trial court “properly acquired” personal jurisdiction over him or over the minor child.  Recitals in judgments are presumed to be correct, but this presumption is rebuttable.  Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth 2001, no pet.).  Edwards argues that here the presumption is rebutted because the jurisdiction of the trial court depended on the child having lived in Harris County for six months or longer.  See Tex. Fam. Code Ann. § 155.201(b) (Vernon 2008).  Edwards directs us to Itam’s motion for enforcement, which had been filed in Fort Bend County on August 10, 2010, prior to the transfer of the underlying case to Harris County, and to the trial court’s contempt order, rendered in Harris County on November 10, 2010.  Edwards argues that, because less than six months had elapsed between these events, this demonstrates that the child had not lived in Harris County for the requisite six-month period and that the trial court lacked jurisdiction to render its contempt order.  

The Texas Family Code vests continuing, exclusive jurisdiction in a trial court that renders a final order in connection with a child. Tex. Fam. Code Ann. § 155.001(a) (Vernon 2008).  That court retains jurisdiction to enforce its order, including the power to hold a non-complying party in contempt.  Tex. Fam. Code Ann. § 157.005(a), (b) (Vernon Supp. 2010); see In re W.J.S., 35 S.W.3d 274, 276–77 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding).  And, a court, on the timely filed motion of a party, must transfer a proceeding to another county in the state if the child has resided in the other county for six months or longer.  Tex. Fam. Code Ann. § 155.201(b). 

Here, it is undisputed that the 378th District Court of Fort Bend County had continuing, exclusive jurisdiction when Itam first filed her motions for enforcement, to modify, and to transfer.  See Tex. Fam. Code Ann. § 155.001(a).  In her motion to transfer, Itam asserted that the child had been living in Harris County for six months.  See Tex. Fam. Code Ann. § 155.201(b).  After a hearing, the Fort Bend district court granted the transfer.  See id. And, jurisdiction of the Fort Bend district court terminated on the docketing of the case in the Harris County district court.  See Tex. Fam. Code Ann. § 155.005. 

Because Edwards has not demonstrated that the trial court’s contempt order is void for lack of jurisdiction, we hold that he has not shown that he is entitled to habeas relief on this ground.  See In re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding) (stating that, in habeas proceeding, relator bears burden to present record showing entitlement to relief).

We overrule Edwards’s first and second issues.

The Contempt Order

In his third issue, Edwards argues that the contempt order is void because it does not set forth or incorporate by reference the provisions of the underlying trial court order that he had allegedly violated.  

The purpose of a contempt order is to notify the contemnor of how he has violated the provisions of the order for which enforcement is sought and to provide sufficient information for adequate review.  Ex parte Conoly, 732 S.W.2d 695, 697 (Tex. App.—Dallas 1987, orig. proceeding).  The order “must contain specific findings so that the contemnor will be fully apprised of his alleged act of misconduct so that he may overcome by proof, if any is available, the presumption of the validity of the order.” Id.  A contempt order is insufficient if its interpretation requires inferences or conclusions about which reasonable persons might differ. In re Houston, 92 S.W.3d 870, 877 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).

An enforcement order must include:

(1)     in ordinary and concise language the provisions of the order for which enforcement was requested;

(2)     the acts or omissions that are the subject of the order;

(3)     the manner of the respondent’s noncompliance; and

(4)     the relief granted by the court.

Tex. Fam. Code Ann. § 157.166(a) (Vernon 2008).   In addition, when the order imposes incarceration or a fine for criminal contempt, it “must contain findings identifying, setting out, or incorporating by reference” the provisions of the underlying order for which enforcement was requested and the date of each occasion when the respondent’s failure to comply with the order constituted criminal contempt.  Id. § 157.166(b).  Further, when the order imposes incarceration for civil contempt, it must state the specific conditions on which the respondent may be released from confinement.  Id. § 157.166(c).  

Because Edwards has not yet completed his confinement for criminal contempt, we first address those issues that affect that portion of the enforcement order.  See Ex parte Occhipenti, 796 S.W.2d 805, 810 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding) (stating that challenges to civil contempt portion of order are premature when contemnor has not completed serving sentence for criminal contempt).  

A criminal contempt order satisfies section 157.166(b) if it (1) contains the volume and page numbers in the minutes of the court in which the underlying order can be found; (2) contains a copy of the underlying order for which enforcement is sought as an exhibit and incorporates it by reference; or (3) contains a copy in its entirety of the provisions of the order for which enforcement is sought. In re Levingston, 996 S.W.2d 936, 938–39 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding) (citing Ex parte Stanley, 826 S.W.2d 772, 772–73 (Tex. App.—Dallas 1992, orig. proceeding)).

Here, the trial court’s order states:  “THE COURT FINDS that: . . . on November 11, 2010 [sic],[3] [Edwards] was ordered to make periodic payments of child support, which order appears of record at Volume ___, starting at Page ___, of the minutes of this Court; . . . .”  The trial court did not specify the volume and page numbers in the minutes of the court in which the support order could be found.  See id.

The trial court neither attached, as an exhibit, a copy of the underlying child support order of which enforcement was sought, nor incorporated the order by reference into the contempt order.  See id.  Rather, attached to the contempt order and incorporated by reference is “Exhibit A,” an excerpt of Itam’s motion for enforcement in which she recited “examples” of Edwards’s alleged failure to comply with the underlying child support order.  Although it appears that Itam also copied portions of provisions into her motion, the provisions are crossed out.  Hence, the trial court did not copy in their entirety the provisions of the order for which enforcement was sought.  See id.

In sum, the contempt order in this case does not contain any of the provisions of the underlying child support order, and it does not comply with the requirements of the Family Code.  See Tex. Fam. Code Ann. 157.166(a) (requiring that order include “the provisions of the order for which enforcement was requested”); § 157.166(b) (requiring, in part, to support punitive measures, that order contain findings setting out or incorporating by reference the provisions of the underlying order for which enforcement was requested).  Because the order fails to comply with section 157.166, subsections (a) or (b), the punitive portion of the order is void.  See Tex. Fam. Code Ann. § 157.166(a), (b); Stanley, 826 S.W.2d at 773.  And, because the order fails to comply with the statutory requirements in section 157.166, subsection (a), the coercive portion of the order is also void. See Tex. Fam. Code Ann. 157.166(a); Levingston, 996 S.W.2d at 939.

Accordingly, we sustain Edwards’s third issue.

          Having concluded that the contempt order is void, we need not reach Edwards’s fourth and fifth issues. 

Conclusion

We grant Edwards’s petition for a writ of habeas corpus and vacate the trial court’s order holding him in contempt and ordering that he be incarcerated.  We further order that Edwards be discharged from custody and that the bond for his appearance before this court be dismissed.

PER CURIAM

Panel consists of Justices Jennings, Alcala, and Sharp.

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[1]           The underlying proceeding is Edwards v. Itam, No. 2010-56770 in the 309th District Court of Harris County, Texas.

[2]               The trial court’s order states that the amount of $47,400.13 is based on an arrearage of $45,000, plus interest in the amount of $9,150.27, less a credit in favor of Edwards of $6,500, plus interest of $250.14. 

[3]               Edwards could not have been ordered to make periodic payments of child support on “November 11, 2010” because the contempt order itself, which was rendered for failure to make payments as ordered, was signed on November 11, 2010.  The order also states that the court found that Edwards had failed to make payments beginning on June 8, 2003. While one may infer what a trial court intended, interpretation of a judgment “should not rest upon implication or conjecture.”  In re Houston, 92 S.W.3d 870, 875 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).