in Re: Todd Jerome Bailey

Petition for Writ of Habeas Corpus Granted and Opinion filed December 23, 2003 Petition for Writ of Habeas Corpus Granted and Opinion filed December 23, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-03-00509-CV ____________ IN RE TODD JEROME BAILEY, Relator __________________________________________________ ORIGINAL PROCEEDING WRIT OF HABEAS CORPUS __________________________________________________ O P I N I O N Relator, Todd Jerome Bailey, challenges the trial court’s judgment and order of contempt, signed March 1, 2002, and its order revoking suspension of commitment, signed January 28, 2003. Because we find the trial court no longer retained jurisdiction to render these orders, we grant the relief requested. Background On August 1, 1984, the trial court signed a Decree of Legitimation that ordered relator to pay child support in the amount of $250.00 per month, payable in bi-monthly installments of $125.00. This order required relator to make these payments until the child attained the age of eighteen years. On June 15, 1999, the parties entered into a Rule 11 agreement setting out relator’s total arrearage of $26,191.20. See Tex. R. Civ. P. 11. On July 1, 1999, the trial court entered an agreed judgment, holding relator in contempt and committing relator to the Harris County Jail for thirty days and day-to-day thereafter, until he purged himself of contempt by performing specified acts, including payment of a lump sum and making payments of $150.00 per month on the arrearages. The trial court then suspended the commitment and placed relator on unsupervised probation for twenty-four months subject to certain specified conditions. On April 24, 2000, the trial court signed an agreed order in a suit to modify the parent-child relationship, appointing relator as the sole managing conservator of the child and appointing real party as the possessory conservator. Real party was ordered to pay child support to relator in the amount of $297.47 per month. According to relator, no payments were ever made. On December 4, 2001, real party filed a motion for enforcement against relator, containing two motions for contempt. The first motion sought child support arrearages from July 1, 1999 to December 4, 2001; the second alleged violations of the July 1, 1999 judgment of contempt. Relator asserts that real party non-suited the first motion for contempt, although the record does not reflect this. A hearing was held on the second motion, and the trial court entered a judgment and order of contempt on March 1, 2002. In the order, the court found that relator had violated the July 1, 1999 order by failing to pay child support arrearages. The court also found relator’s total arrearage, including principal and interest, to be $31,587.66. Because real party had failed to pay child support to relator while he was the sole managing conservator, the court deducted real party’s arrearage from relator’s total arrearage, leaving a balance due of $24,946.62. Also, based on the violations of the July 1, 1999 order, the trial court found relator in contempt and ordered him to serve 180 days in the Harris County Jail. Commitment was again suspended and relator was placed on community supervision so long class=Section3> as he complied with certain conditions, including payment of $50.00 per month to real party’s attorney for fees and bi-monthly payments of $100.00 for the child support arrearages. A withholding order was entered for payment of the arrearages and dates were set for compliance hearings. On January 28, 2003, the court held a compliance hearing and signed an order revoking suspension of commitment. The trial court found that relator had failed to comply with the terms and conditions of the March 1, 2002 order by failing to make certain bi-monthly payments on the arrearage, and by failing to pay real party’s attorney fees. The court also found the total arrearage, including principal and interest, to be $25,109.97. Accordingly, the trial court ordered relator confined in the Harris County Jail for 180 days and day-to-day thereafter until he performed certain acts, including payment of $24,946.62 in child support arrearage and payment of $1,206.50 in fees to real party’s attorney.[1] Bankruptcy We turn first to relator’s claim that the trial court had no authority to find him in contempt because relator had filed for bankruptcy and an automatic stay was in effect. Relator filed for Chapter 13 bankruptcy on March 24, 2003. Relator has provided this court with a certified copy of the bankruptcy petition. Under section 362 of the Bankruptcy Code, an automatic stay is imposed, prohibiting the commencement or continuation of any judicial actions or proceedings against the debtor. 11 U.S.C. § 362(a)(1) (1993). All actions with respect to civil contempt orders are stayed until the time when the automatic stay has been lifted by the bankruptcy court. In re Wiese, 1 S.W.3d 246, 249 (Tex. App.—Corpus Christi 1999, orig. proceeding). The commencement or continuation of an action for criminal contempt is not automatically stayed by filing the bankruptcy petition. Id. Here, the trial court imposed both criminal and civil contempt. The March 1, 2002 order assessed criminal punishment of 180 days in jail for violations of the previous order and also imposed civil contempt by ordering relator to remain in jail day-to-day until he paid the arrearages due. Because the automatic stay applies to the civil portion of the order, we are only at liberty to address the merits of relator’s complaints concerning the criminal portion of the order.[2] Jurisdiction Relator complains that the motion for contempt and enforcement was void by time limitations pursuant to section 157.005 of the Family Code, which provides that a court maintains jurisdiction to render a contempt order for a party’s failure to comply with the child support order “if the motion for enforcement is filed not later than the sixth month after 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 § 157.005(a). Courts have consistently held that section 157.005 is not a statute of limitation, but instead, addresses how long a court has jurisdiction to enforce its orders. See In re S.C.S. and M.D.S., 48 S.W.3d 831, 834 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing a number of cases so holding). Thus, the issue is not whether the motion for contempt is void for time limitations, but whether the trial court retained jurisdiction to enter the contempt order of March 1, 2002 and the order revoking suspension of commitment on January 28, 2003. Even if the child turned eighteen more than six months before the motion for enforcement was filed, the motion would nevertheless be timely if it were filed within six months after the date “on which the child support obligation terminates under the order or by operation of law.” Tex. Fam. Code § 157.005(a). The record contains real party’s first motion for contempt, filed on December 4, 2001, which states that the court signed a Decree of Legitimation on August 1, 1984, ordering relator to pay child support as set out in Exhibit A to the motion. Exhibit A is a copy of the portion of the legitimation order requiring relator to pay child support to real party in the amount of $250.00 per month “until the youngest child made the subject of this suit attains the age of eighteen (18) years.” Thus, the child support obligation terminated under the terms of the Order of Legitimation on the child’s eighteenth birthday, which occurred on November 3, 2000. The motion for enforcement was filed on December 4, 2001, more than six months after the date on which the child support obligation terminated under the legitimation order.[3] Accordingly, we find the trial court no longer retained jurisdiction to enter the contempt order of March 1, 2002, or the January 28, 2003 order revoking suspension of commitment. Conclusion We grant relator’s petition for writ of habeas corpus and order relator discharged from custody. Accordingly, we do not reach relator’s remaining issues. /s/ Eva M. Guzman Justice Judgment rendered and Opinion filed December 23, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. [1] On July 14, 2003, we issued a writ releasing relator on bond. [2] Relator claims he has fully complied with the criminal portion of the sentence. Real party disputes this claim. Having no proof of compliance, we address relator’s remaining complaints, but our opinion concerns only the criminal portion of the contempt order. [3] Real party notes that the July 1, 1999 agreed judgment placed relator on probation until July 1, 2001. She reasons, that because her December 4, 2001 motion to enforce was filed within six months of the probationary period, the trial court retained contempt jurisdiction. However, the discretion to revoke contempt probation terminates when a probationary period expires without a motion for contempt having been filed. See Ex parte Spikes, 909 S.W.2d 245, 247 (Tex. App.—Amarillo 1995, orig. proceeding). A contemnor cannot thereafter be committed under the prior contempt order. Id. Additionally, real party argues that the trial court held relator in contempt for failing to pay interest as rendered in the July 1, 1999 agreed judgment. Although accrued interest is a part of the child support obligation, see Tex. Fam. Code § 157.267, an arrearage judgment making payments due past the child’s eighteenth birthday does not extend the period for bringing a contempt proceeding. In re Dickinson, 829 S.W.2d 919, 921 (Tex. App.—Amarillo 1992, no writ).