Opinion
NO. 02-11-00430-CV
02-08-2012
IN RE BRETT RALPH CORBETT RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In four issues, Relator Brett Ralph Corbett contends that (1) the trial court's contempt order is void because (a) the order imposes civil coercive contempt for all the violations alleged instead of for the twelve contemptible acts that he was found actually to have committed, and (b) the motion to enforce provided inadequate notice of the claims of ex-wife Tamula Denise Farrington, Real Party in Interest; (2) Farrington's failure of proof precludes her recovery of child support arrearages; (3) Farrington's delay in bringing her claims bars them; and (4) the trial court abused its discretion in awarding attorney's fees. For the reasons discussed below, we conditionally grant the writ of mandamus.
In his second issue, Corbett contends that Farrington failed to plead or prove that she notified him of medical expenses or insurance premiums and that he therefore cannot be held liable for them. In his third issue, he contends that her arrearage claims are barred by her delay in bringing them. Corbett did not appeal the arrearage judgment, however. Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal.Because Corbett had an adequate remedy by appeal but chose not to pursue it, we overrule his second and third issues.
In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).
See, e.g., Menner v. Ranford, 487 S.W.2d 698, 699 (Tex. 1972) (affirming trial court's confirmation of arrearage and order to pay it at fifty dollars per month); In re J.P., 296 S.W.3d 830, 837, 838 (Tex. App.—Fort Worth 2009, no pet.) (reversing trial court's confirmation of arrearages).
In his first issue, Corbett contends that the contempt order is void because of inadequate notice and also because it holds him in coercive contempt for the 277 violations alleged instead of the twelve contemptible acts found by the trial court. Farrington's "First Amended Motion for Enforcement of Child Support Order" alleges that Corbett is in contempt of court for, between 1997 and 2010, "failing to pay [her] the full amount of additional child support due . . . as reimbursement of the cost of insuring the child on [her] health insurance plan on each of the payment dates as shown in the attached Exhibit A" and for, between 1997 and 2010, "failing to pay [her] the additional child support of [Corbett's] portion of [the] uninsured medical expenses due to [her] on each of the payment dates as shown in the attached Exhibits B and C incorporated herein by reference." After a hearing, the trial court signed a contempt judgment finding Corbett in contempt for only a total of twelve of the 277 violations alleged by Farrington in her motion for enforcement. No criminal contempt was imposed.
The twelve contemptible acts of failure to pay health insurance cost reimbursement and failure to pay uninsured health care expenses found by the trial court collectively total $741.66. Yet the order provides that Corbett is to be confined until he pays:
(1) $21,835.40 directly to Farrington as additional child support health insurance cost reimbursement arrearage, including any accrued interest, plus 6% interest;
(2) $5,526.88 directly to Farrington, as additional child support uninsured health care expense arrearage, plus 6% interest;
(3) $467.91, as court costs, as additional child support, plus 6% interest, for Farrington's attorney, payable directly to Farrington; and
(4) $13,446, as attorney's fees in this proceeding as additional child support, plus 6% interest, for Farrington's attorney, payable directly to Farrington.
Corbett could have been properly subject to coercive confinement only until he paid the amount for which he was actually held in contempt for failing to pay, $741.66. "If one punishment is assessed for multiple acts of contempt, and one of those acts is not punishable by contempt, the entire judgment is void."Because the contempt order subjected Corbett to coercive confinement for alleged violations for which there is no corresponding contempt finding, the entire contempt order is void. We therefore sustain his first issue without reaching the remainder of the issue.
See In re Patillo, 32 S.W.3d 907, 910 (Tex. App.—Corpus Christi 2000, orig. proceeding) (holding portions of civil coercive contempt order jailing father until he had paid arrearage, attorney's fees, and court costs void).
Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986).
See id.
See Tex. R. App. P. 47.1.
In his fourth issue, Corbett complains that the trial court abused its discretion by awarding nearly $14,000 in attorney's fees. He argues that because the trial court found only twelve contempt violations, Farrington did not win and should not receive an award of attorney's fees or alternatively, should receive only a proportionate amount. He does not challenge the proof regarding the reasonableness of the fees. We note that the proceeding below resulted in a cumulative arrearage judgment in excess of $27,000 for Farrington, ignoring attorney's fees, a judgment that Corbett did not appeal. We therefore overrule this part of his fourth issue.
But also in his fourth issue, Corbett complains that awarding the attorney's fees as additional child support was beyond the trial court's jurisdiction because D.L.C. was eighteen years old before the motion to enforce was filed. Corbett does not address the trial court's other uses of the phrase "additional child support" throughout the order; we therefore, like Corbett, address only the award of attorney's fees.
Section 154.001 of the family code provides,
(a) The court may order either or both parents to support a child in the manner specified by the order:
(1) until the child is 18 years of age or until graduation from high school, whichever occurs later;
(2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;
(3) until the death of the child; or
(4) if the child is disabled as defined in this chapter, for an indefinite period.
Tex. Fam. Code Ann. § 154.001 (West 2008).
Thus, the trial court is limited by statute from imposing additional child support upon Corbett. We therefore agree that the trial court had no jurisdiction to classify the attorney's fees as additional child support. We sustain this portion of Corbett's fourth issue.
See id.; Bohn v. Bohn, 455 S.W.2d 401, 414 (Tex. Civ. App.—Houston [1st Dist.] 1970, writ dism'd) (noting that former statute limited trial court to ordering child support only until child is eighteen).
Because we have held that the contempt order is void, we lift our stay of the trial court's February 24, 2011 "Order Holding Respondent In Contempt For Failure To Pay Child Support, Granting Judgment For Arrearages, And Suspending Commitment" in cause number 95-10774-16, styled In the Interest of D.C., A Child, and conditionally grant the writ of mandamus. We are confident that the trial court will immediately (1) vacate the entire contempt portion of its February 24, 2011 "Order Holding Respondent In Contempt For Failure To Pay Child Support, Granting Judgment For Arrearages, And Suspending Commitment" and (2) strike the phrase "as additional child support" from the award of attorney's fees in all remaining portions of the order. Our writ will issue only if the trial court fails to do so.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ. WALKER, J. concurs without opinion.