in Re Dwight D. Baker

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed August 21, 2006 Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed August 21, 2006. In The Fourteenth Court of Appeals ____________ NO.  14-06-00590-CV ____________ IN RE DWIGHT D. BAKER, Relator ORIGINAL PROCEEDING WRIT OF HABEAS CORPUS M E M O R A N D U M  O P I N I O N In this original proceeding, relator Dwight D. Baker seeks relief from the trial court=s order revoking the suspension of his sentence for contempt and committing him to jail for failing to pay child support. For the reasons addressed below, we grant the writ of habeas corpus. Background Relator and Sherry Lynn Baker have two children. After their divorce, the parties entered into an agreed order (the Acontempt order@), which the trial court signed on March 29, 2005, pursuant to Sherry=s first amended motion for enforcement. In the order, relator was found in contempt for violating temporary orders, dated July 22, 2004, by failing to make child support payments of $750 on July 15, 2004, August 1, 2004, and each month thereafter, through February 1, 2005.[1] The total arrearage stated in the contempt order was $10,500. Relator was sentenced to thirty days in jail for each violation listed, to be served concurrently, and assessed a civil contempt sentence, in which he was ordered to pay the $10,500 child support arrearage in accordance with scheduled payments, and ordered to pay attorney=s fees.[2] Relator=s commitment was suspended on the condition he pay the $10,500 arrearage as scheduled and pay $1500 in attorney=s fees. Relator was ordered to appear for compliance hearings on April 15, 2005, August 2, 2005, and December 16, 2005. A hearing was held on November 14, 2005 to determine relator=s compliance with the contempt order and was continued to November 28, at which time the court also heard relator=s motion to modify child support and access and possession. During the November 28, 2005 hearing, the trial judge rendered an oral ruling, finding relator in contempt for failing to comply with the contempt order and revoking relator=s suspension of commitment. The motion to modify, however, was not disposed of at that time and the proceedings were continued, eventually resuming on March 9, 2006.[3] Ultimately, the trial court signed an order on March 28, 2006, revoking relator=s suspension and committing him to jail (the Arevocation order@). In the revocation order, the trial court found, in part, that relator failed to (1) comply with the March 29, 2005 contempt order by failing to pay child support arrearages; (2) make additional child support payments, from February 15, 2005 through March 15, 2006; and (3) make medical reimbursement payments for March 1, 2005 through March 1, 2006. The trial court found that the total arrearage for child support and health reimbursement payments was $25,800. Relator was ordered confined in the Harris County jail for thirty days Aas ordered by the order suspending commitment,@ and sentenced to continued confinement until the total arrearage due, $25,800, was paid. On May 1, 2006 relator was taken into custody, but was released on May 2. On June 21, 2006, the trial court rendered an oral order that relator be confined pursuant to the March 28 revocation order. Relator was taken into custody and remained confined from June 22 to July 26, 2006, when this court ordered relator released on bond. Standard of Review An original habeas corpus proceeding is a collateral attack on a contempt judgment. In re Broussard, 112 S.W.3d 827, 831 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding). The purpose of a writ of habeas corpus is not to determine the guilt or innocence of the contemnor, but only to determine whether he was afforded due process of law or the order of contempt is void. Id. To grant relator the requested relief, we must find that the trial court=s order directing relator=s incarceration is void, either because it is beyond the court=s power to issue or because it deprives relator of his liberty without due process of law. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005); In re Broussard, 112 S.W.3d at 831. Discussion In its revocation order, the trial court found that relator failed to make child support payments from February 15, 2005 through March 15, 2006, however, the contempt order underlying the revocation order expressly pertained to child support payments through February 1, 2005. There is nothing in the record to show that relator was ever found to be in contempt for failing to make the latter child support payments, which were ordered pursuant to the amended final order nunc pro tunc, nor is there a motion for enforcement of the latter child support payments. It is well‑settled that due process requires a written judgment of contempt and a written commitment order to imprison a person for constructive contempt of court. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997); Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980); see also Tex. Fam. Code Ann. ' 157.166 (Vernon 2002) (stating requirements of enforcement order). Because no written judgment or order of contempt exists regarding the latter child support payments contained in the revocation order, there is no order on which commitment can be predicated as to those payments. See Ex parte Barnett, 600 S.W.2d at 256 (stating that the judgment or order of contempt must conform to the grounds set forth in the notice given relator to show cause why he should not be held in contempt). AThe commitment order, standing alone and without a concomitant judgment or order finding relator in contempt, is not enough.@ Id. Further, because the lump sum payment of $25,800 assessed in the civil contempt portion of the revocation order includes the latter child support payments, but suspension of contempt was conditioned on payment of the $10,500 arrearage, the term of continued commitment under the revocation order impermissibly imposes a greater sentence than was imposed in the contempt order. See Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996) (concluding that the commitment order which imposed a greater punishment than contained in the contempt order enhanced punishment without notice and violated due process rights); Ex parte Davila, 718 S.W.2d 282 (Tex. 1986) (stating that civil contempt sentence requiring payment of a lump sum that includes amounts that are not a basis for contempt taints the entire judgment). Thus, the revocation order is void. Ex parte Swate, 922 S.W.2d at 125B26; see also In re Smith, 981 S.W.2d 909, 911 (Tex. App.CHouston [1st Dist.] 1998, orig. proceeding) (holding that due process rights are violated when the trial court goes beyond relief requested). Relator also argues that the contempt and revocation orders are void because there is no evidence in the record that he can purge himself of the civil contempt, and he established conclusively that he is unable to pay the lump sum. ATexas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability but refuses to perform the conditions for release.@ In re Gawerc, 165 S.W.3d 314, 315 (Tex. 2005). A relator seeking to avoid confinement for civil contempt must demonstrate his inability to comply with payment as ordered at the time of the contempt hearing. Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967). During the November 28, 2005 hearing, relator testified that he was living with his mother and father, borrowing money to pay for gas and his bills, and had been doing so for eighteen months. He stated he had some property that was used as collateral for one of the loans, and that his friends and family would no longer loan him money. Relator attached an affidavit to his habeas corpus petition stating he was unemployed before and after the November 28 hearing, and that he does not have the ability to pay the $25,800. Because there was no contempt hearing concerning the latter child support payments ordered, there is no other evidence concerning relator=s ability to pay the $25,800, further showing the invalidity of the revocation order. Conclusion Because the revocation of relator=s suspension of commitment was based, in part, on conduct that had not been found to be contemptuous, and the civil contempt sentence contains a lump sum payment exceeding that which was in the contempt order, the revocation order is void. Accordingly, we grant relator=s petition for writ of habeas corpus. We order relator released from the bond set by this court on July 26, 2006, and order relator discharged from custody. PER CURIAM Petition Granted and Memorandum Opinion filed August 21, 2006. Panel consists of Justices Anderson, Edelman and Frost. [1]On February 11, 2005, the trial court signed an amended final order nunc pro tunc, which stated, in part, that past due child support issues survived the final order. [2]Relator was also ordered to continue paying Sherry Lynn Baker for health insurance reimbursements as set forth in the amended final order nunc pro tunc. Regarding child support payments, however, it was merely noted in the contempt order that the ordered scheduled arrearage payments were Ain addition to@ the child support payments set forth in the amended final order. [3]Relator was unable to appear on March 9, and was ordered to appear the following week.