in Re: Dwayne Thomas Stenson

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed May 11, 2006 Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed May 11, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00094-CV ____________ IN RE DWAYNE THOMAS STENSON, Relator ORIGINAL PROCEEDING WRIT OF HABEAS CORPUS M E M O R A N D U M  O P I N I O N Relator Dwayne Thomas Stenson challenges the trial court=s order of contempt and commitment dated January 30, 2006, claiming the order is void because it imposes an ambiguous sentence, fails to comply with the Family Code, and punishes him pursuant to a nonexistent decree. On February 8, 2006, we ordered relator released, subject to bond, pending a final determination of this cause. Because we conclude that the contempt order is void, we grant relator=s habeas corpus petition, order relator released from the bond set by this Court on February 8, 2006, and order relator discharged from custody. I. Background Several decrees were signed in the underlying case. An amended divorce decree was entered on February 1, 2005 (the AFebruary decree@), in which relator was ordered to pay $500 per month in child support to real party Katherine Elaine Stenson, beginning with a payment on June 4, 2004, and a like payment on the fourth of every month thereafter. Relator=s child support obligations as stated in the February decree were unchanged from the final divorce decree previously entered in the case. On August 12, 2005, a second amended divorce decree was signed (the AAugust decree@), and relator was again ordered to pay $500 a month in child support beginning on June 4, 2004 and continuing on the fourth day of each month thereafter. In the August decree, relator was also ordered to pay $3500 in attorney=s fees to the child=s court-appointed attorney, Allyson N. Brupbacher. Katherine subsequently filed a motion to enforce the child support orders contained in all decrees entered in the case. Brupbacher also filed a motion for enforcement of the order to pay her fees. Separate hearings were held on the motions, but findings and conclusions for each motion were contained in the trial court=s January 30, 2006 contempt and commitment order, in which relator was sentenced to one hundred days= confinement in the Harris County jail. Relator then filed his habeas corpus petition in this Court, challenging the order on six grounds. II. 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) (citing Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967)). The relator is entitled to discharge if the order underlying the contempt is void, or if the contempt order or commitment order is void. Ex parte Tanner, 904 S.W.2d 202, 203 (Tex. App.CHouston [14th Dist.] 1995, orig. proceeding). An order is void when either it is beyond the court=s power or because the relator has not been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005); Ex parte Barlow, 899 S.W.2d 791, 794 (Tex. App.CHouston [14th Dist.] 1995, orig. proceeding). III. Discussion The January 30 contempt order contains separate sections regarding Katherine=s motion for enforcement and Brupbacher=s motion. Five of the six issues presented in relator=s petition challenge that portion of the order concerning Katherine=s motion. We sustain three of those issues. We discuss relator=s only issue concerning Brupbacher=s motion in the final section of this opinion. A. Katherine=s Motion for Enforcement 1. Ambiguous Sentence In the contempt order, relator was charged with separate counts of contempt for failing to make ten child support payments as follows: February 4, 2005, March 4, 2005, and May 4, 2005 through December 4, 2005. Relator was sentenced to ten days= confinement in the Harris County jail for each violation, for a total of one hundred days= confinement. Relator argues that although the contempt order states his confinement is for one hundred days, the dates of confinement listed equal only ninety days and therefore, the order imposes an ambiguous sentence and is void. Before a person can be imprisoned for violating a court=s previous order, due process requires, among other things, that the court=s commitment order clearly specify the punishment imposed. Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997); see also Tex. Fam. Code Ann. ' 157.166(b) (Vernon 2002). A term of incarceration should not rest upon implication or conjecture. In re Watson, 108 S.W.3d 531, 533 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding). Here, the order contains the following provision: Based upon the findings above . . . Dwayne Thomas Stenson is in CONTEMPT OF THIS COURT for each separate violation . . . and it is ORDERED that punishment for each separate violation is assessed, for each violation [sic], at confinement in the county jail of Harris County, Texas, for a period of 10 days for a total of 100 days to begin on January 30, 2006 and continuing until April 29, 2006. Counting one hundred days from January 30, 2006, relator=s sentence would end on May 9, 2006, not April 29 as stated in the order; therefore, it is unclear from the order when relator=s term of incarceration ends. See id. Were this the only problem with the contempt order, we could reform it to reflect the correct date. See In re Zapata, 129 S.W.3d 775, 781 (Tex. App.CFort Worth 2004, orig. proceeding) (reforming portion of contempt order); In re Broussard, 112 S.W.3d at 831 (citing Ex parte Roosth, 881 S.W.2d at 301); In re Watson, 108 S.W.3d at 533 (noting that void portions of a contempt order Awhile valid in all other respects,@ can be struck and relief is otherwise denied); see generally Ex parte Guetersloh, 935 S.W.2d 110, 111B12 (Tex. 1996) (orig. proceeding). However, as discussed below, we conclude the order is void on other grounds as well. See In re Broussard, 112 S.W.3d at 831B32 (declining to reform contempt order due to finding it was void on other grounds). 2. Superseded Decree and Prior Acts Relator also argues the court=s contempt order is void because it is based, in part, on the February decree, which was expressly superseded by the August decree. He argues that because six of the ten violations listed in the contempt order occurred under the February decree, he is being punished for acts occurring prior to the date the final order was signed. The contempt order contains the following findings: 2(a) on February 1, 2005, Respondent was ordered to make periodic payments of child support, in the amount of $500 to be paid on the 4th day of each month beginning on June 4, 2004 and a like payment being due and payable on each 4th day of the month thereafter with said ORDER being the Amended Decree of Divorce; 2(b) on August 12, 2005, Respondent was ordered to make periodic payments of child support in the amount of $500 to be paid on the 4th day of each month beginning on June 4, 2004 and a like payment being due and payable on each 4th day of the month thereafter with said ORDER being the SECOND AMENDED DECREE OF DIVORCE The August decree states that it Asupercedes the AMENDED DECREE OF DIVORCE signed on February 1, 2005.@ Likewise, the February decree expressly superseded the previously entered final divorce decree. As relator claims, of the ten violations on which his contempt sentence is based, six occurred prior to August 12, 2005, the date the August decree was signed. This Court previously has determined that a contempt order based on a superseded decree is void. Ex parte Smith, No. 14-96-00195-CV, 1996 WL 283063, at *2, (Tex. App.CHouston [14th Dist.] May 30, 1996, orig. proceeding); see also Ex parte Deckert, 559 S.W.2d 847, 849 (Tex. Civ. App.CHouston [1st Dist.] 1977, orig. proceeding) (concluding that commitment order was void because it referred to invalid order). We reasoned in Smith that the superseded decree was no longer of any force and effect once the later decree was signed; at that point, the superseded decree was no longer the enforceable order in the case. Ex parte Smith, 1996 WL 283063, at *2. We concluded that, by referring to a decree which was no longer in effect, the court=s contempt order did not strictly comply with the requirements of section 157.166(b) of the Family Code.[1] Id. The reasoning in Smith applies to this case. Once the trial court signed the August decreeBBon August 12, 2005BBthe February decree was superseded and no longer in effect. See id.; see also Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex. App.CAmarillo 1993, writ denied) (AOnce a judgment has been vacated and reformed, it is superseded; the original judgment is effectively >dead,= . . . .@). The August decree was the enforceable decree in the case at the time of the hearing on Katherine=s motion,[2] yet the court=s contempt order holds relator in contempt for failing to make payments under the superseded February decree.[3] And, as relator contends, he cannot be incarcerated for failing to pay sums owed prior to the date of an enforceable decree. See Ex parte Guetersloh, 935 S.W.2d 110, 111 (Tex. 1996) (orig. proceeding) (stating that an alleged contemnor cannot be held in constructive contempt for actions taken before the court=s order is signed). Because the contempt order in this case is based in large part on acts occurring under an unenforceable decree and imposes punishment for acts occurring prior to the final decree being signed, it is void. See Ex parte Smith, 1996 WL 283063, at *2. In sum, because six of the ten violations listed in the contempt order occurred prior to August 12, 2005, the date the final decree in the case was signed, and the sentence imposed in the order requires reformation, we conclude that the section of the contempt order regarding Katherine=s motion for enforcement is void. See, e.g., In re Broussard, 112 S.W.3d at 832 (declining to sever void portions from valid portions of contempt order due to finding it void on several grounds). B. Brupbacher=s Motion Relator also contends he is entitled to habeas corpus relief because attorney=s fees cannot be classified as child support and, therefore, are not enforceable by contempt. The section of the contempt order regarding Brupbacher=s motion for enforcement sets forth the court=s findings and conclusions, adjudges relator in contempt of court pursuant to Brupbacher=s motion, and assesses a punishment of ten days= confinement for each violationBBa total of fifty days= confinementBBto run concurrently with the one-hundred day sentence imposed in connection with Katherine=s motion for enforcement. However, the contempt order states that the sentence imposed for non-payment of Brupbacher=s fees is suspended conditioned on future payments, beginning on February 1, 2006, and continuing thereafter on the first day of each month until the full sum owed is paid. Thus, there is nothing in this record to indicate relator=s incarceration is pursuant to that portion of the contempt order. Because relator=s contempt sentence was suspended regarding Brupbacher=s fees, his request for habeas corpus relief as to that sentence is premature. See In re Scariati, 988 S.W.2d 270, 273 & n.2 (Tex. App.CAmarillo 1998, orig. proceeding) (noting that likelihood of restraint caused by civil contempt presents ripeness issues); Ex parte Hughey, 932 S.W.2d 308, 310B11 (Tex. App.CTyler 1996, orig. proceeding) (refusing to issue writ of habeas corpus, noting that because the function of the writ is to secure release from unlawful custody, it requires a showing of a restraint of liberty); see also Tex. Gov=t Code Ann. ' 22.221(d) (Vernon 2004) (stating appellate court=s jurisdiction to issue writ of habeas corpus relates to a restraint of liberty). Further, because that portion of the contempt order is separate and distinct from the section concerning Katherine=s motion, addressed above, we express no opinion here regarding the order as it concerns Brupbacher=s fees. IV. Conclusion In conclusion, the section of the trial court=s contempt order covering Katherine=s enforcement motion is void because it is based on an unenforceable decree and the term of relator=s incarceration is unclear as contained in the order. Accordingly, we grant relator=s petition for writ of habeas corpus as discussed above. We do not address relator=s issue concerning Brupbacher=s enforcement motion. We further order relator released from the bond set by this Court on February 8, 2006, and order relator discharged from custody. /s/ John S. Anderson Justice Petition for Habeas Corpus Granted, and Memorandum Opinion filed May 11, 2006. Panel consists of Justices Anderson, Edelman, and Frost. [1]That section provides as follows: If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent=s failure to comply with the order was found to constitute criminal contempt. Tex. Fam. Code Ann. ' 157.166(b) (Vernon 2002). [2]Relying on Ex parte Shaver, 597 S.W.2d 498, 499 (Tex. Civ. App.CDallas 1980, orig. proceeding), Katherine responds to relator=s argument by claiming his child support obligations did not change in the subsequent decrees and thus, he was aware of his obligations. In Shaver, involving obligations under temporary child support orders, the court held that Ain the absence of a provision in the divorce decree . . . superseding@ the temporary child support order, the previous order is still enforceable. Id. (emphasis added). Moreover, relator does not argue that he did not have proper notice of the violations. See Ex parte Smith, 1996 WL 283063, at *1B2. Even though relator=s child support obligations remained the same in the August decree, because that decree was the final decree enforceable by contempt, relator could not be incarcerated for acts occurring prior to the signing of the August decree. See Ex parte Guetersloh, 935 S.W.2d at 111. [3]See also Ex parte Carroll, 175 S.W.2d 251, 252 (Tex. 1943) (finding temporary custody order was superseded by final divorce decree); Ex parte Grothe, 581 S.W.2d 296, 297 (Tex. Civ. App.CAustin 1979, no writ) (finding temporary orders were superseded by entry of divorce decree).