in Re Damian Johnson

Opinion issued December 21, 2005 In The Court of Appeals For The First District of Texas NO. 01-05-01117-CV ____________ IN RE DAMIAN HOWARD JOHNSON, Relator Original Proceeding on Petition for Writ of Habeas Corpus MEMORANDUM OPINION Relator, Damian Howard Johnson, seeks habeas corpus relief from a September 29, 2005 order for capias. We deny relief. Factual Background A month before their 1998 marriage, Damian and real party in interest, Carol-Leigh Johnson, entered into a prenuptial agreement in which both parties agreed to forego any alimony payments. In 2004, Carol initiated divorce proceedings, which are still pending. On July 28, 2005, after hearing, the trial court entered an order that on July 29, 2005, Damian pay Carol’s counsel $20,000, interim attorney’s fees, as temporary spousal support for Carol. On August 5, 2005, Carol filed a motion for enforcement, alleging that Damian had not delivered the $20,000 as ordered. In it, she requested that the trial court hold Damian in contempt and jail him as punitive and coercive measures for this violation of the July 28 order. On August 5, 2005, the trial court ordered Damian to appear on September 29, 2005 to respond to Carol’s motion for enforcement, the purpose of the hearing being to determine whether the relief Carol requested should be granted. Damian did not appear at the September 29 hearing. Carol requested that the trial court issue a capias for Damian for his failure to appear. The trial court, after reviewing the pleadings and hearing the argument of counsel, found that the matter was duly and properly set for hearing, that Damian was personally served with citation and timely notice to appear, that all due process requirements for notification were properly fulfilled, and that Damian failed to appear. The trial court further found that Damian had attempted to evade service of process. Additionally, the trial court found that $20,000 bond would be reasonable, conditioned on Damian’s promise to appear in court for a hearing without further service of citation. The trial court ordered that the clerk of the court issue a writ of capias directing authorized officers to bring Damian’s body before the trial court to answer Carol’s allegations in her motion of enforcement and that if Damian attempted to post the cash bond that the detaining authority contact the trial court before Damian’s release to determine the date and time of hearing for inclusion in the bond conditions. Damian, who entered into the premarital agreement in Harris County, Texas, and who with Carol jointly owns a residence in Harris County, maintains that he is a resident of Missouri, and that the capias places a restriction on his liberty in that “he has no ability to travel to Texas.” Damian asserts that by this proceeding, he seeks a writ of habeas corpus to set aside the September 29 capias order because in light of the premarital agreement, it was an abuse of discretion for the trial court to characterize the interim fees as spousal support and enforce the same by contempt. Standard of Review A relator is not entitled to discharge in a habeas corpus proceeding unless the judgment ordering him confined is void either because it exceeded the court’s power or because it deprived relator of his liberty without due process of law. In re Aguilera, 37 S.W.3d 43, 53 (Tex. App.—El Paso 2000, orig. proceeding) (citing Ex parte Davis, 344 S.W.2d 153, 154-55 (Tex. 1961); Ex parte Friedman, 808 S.W.2d 166, 168 (Tex. App.—El Paso 1991, orig. proceeding). Analysis In his petition, Damian initially and superficially purports to be challenging the trial court’s September 29, 2005 order for capias, but then proceeds to substantively attack the trial court’s holding characterizing the $20,000 interim attorney’s fees as temporary spousal support, which is contained in its July 28, 2005 “Amended Order for Spousal Support as Interim Attorney’s Fees.” Damian contends that the trial court abused its discretion by awarding interim attorney’s fees as spousal support because, in so doing, it overrode the parties’ prenuptial contractual agreement to forego alimony payments. This contention, however, does not show that the order for capias is void as beyond the trial court’s power to issue it or that it deprived him of his liberty without due process of law. Damian does not deny that he was properly served with notice of the September 29 hearing, that he attempted to evade service of process for the hearing, or that he failed to appear at the hearing. Moreover, the Texas Family Code explicitly authorizes trial courts to issue an order for capias in such situations as follows: If a respondent who has been personally served with notice to appear at a hearing does not appear at the designated time, place, and date to respond to a motion for enforcement of an existing court order, regardless of whether the motion is joined with other claims or remedies, the court may not hold the respondent in contempt but may, on proper proof, grant default judgment for the relief sought and issue capias for the arrest of respondent. Tex. Fam. Code Ann. § 157.066 (Vernon 2002); see also Aguilera, 37 S.W.3d at 55 (holding that trial court was authorized under § 157.066 to issue capias for relator who was duly noticed about enforcement hearing, failed to appear for hearing, and was not adjudicated to be in contempt). Conclusion We deny habeas corpus relief. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Keyes, and Hanks.