Opinion
No. 06-17-00035-CV
04-06-2017
IN RE BRAD STEVEN DECKER
Original Habeas Proceeding Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
After exercising his right, under the Fifth Amendment of the United States Constitution, to refuse to answer questions posed to him in court, Brad Steven Decker has been held in civil and criminal contempt for violating trial court orders by withdrawing retirement-account funds previously awarded to his ex-wife, Tamra Decker. Brad has petitioned for a writ of habeas corpus, arguing that the criminal contempt is not supported by the evidence, that the criminal contempt is invalid due to the insufficiency of the language of the court's orders, and that the civil contempt is invalid for lack of notice that civil contempt was being sought.
Habeas corpus is the only remedy available to a relator found in contempt who is being held in custody. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967) (orig. proceeding). The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding).
We reverse the order of criminal contempt, but affirm the order of civil contempt, because (1) as to criminal contempt, there is insufficient evidence that Brad violated the court's orders, and (2) Brad was on notice that civil contempt was being sought.
Before finding Brad in contempt, the trial court had entered a final decree ending Tamra and Brad's marriage. In the decree, the trial court had awarded Tamra all of the funds in a particular retirement account, "the 401(k) plan existing by reason of [Brad's] employment with Southwestern Bell Telephone Co. and/or AT&T, Inc. through Fidelity [Investments], Account No. AT&T SSP(20021)." Evidence shows that, at some point between August 2015 and the final divorce in July 2016, there had been $101,875.51 in the retirement account. However, about three months after the divorce, when a Qualified Domestic Relations Order (QDRO), rolling the funds into a retirement account in Tamra's name, had been entered October 21, 2016, there remained in the retirement account only $6,606.18. As a result, the trial court found Brad in civil and criminal contempt.
(1) As to Criminal Contempt, There Is Insufficient Evidence that Brad Violated the Court's Orders
Brad argues that the criminal contempt is void, because the evidence failed to establish that he had violated the temporary injunction or the orders contained in the divorce decree and because the underlying decree's language was insufficient to support contempt. We agree that the evidence is insufficient to prove a violation supporting criminal contempt.
Tamra's enforcement action alleged that Brad had withdrawn funds from the retirement account and that, in doing so, he violated the trial court's temporary orders and the divorce decree. The temporary orders—in place from October 2, 2014, until the divorce decree in July 2016—stated in relevant part:
IT IS ORDERED that Petitioner and Respondent are enjoined from:The divorce decree awarded the retirement account to Tamra and ordered (a) that, in the absence of a Qualified Domestic Relations Order, Brad was the constructive trustee for Tamra's retirement benefits in the account and (b) that, if he received any benefits from the retirement account, he "shall immediately forward" them to Tamra.
Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.
. . . .
Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order.
Withdrawing or borrowing in any manner for any purpose from any retirement, profitsharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order.
Brad was served with notice of the show-cause hearing and subpoenaed to appear and provide the following: "Any and all documents concerning the 401k Plan at AT&T. Any and all documents concerning any withdrawal, loan or any other transaction on the 401k Plan. Any and all proceeds received from the 401k Plan." Brad appeared at the hearing, but he asserted his Fifth Amendment privilege and refused to produce the documents. When Brad was called as a witness, he likewise invoked his Fifth Amendment rights and refused to answer each of the questions posed to him. Among the questions asked were the following, to each of which Brad asserted his Fifth Amendment right not to answer:
See Fisher v. United States, 425 U.S. 391, 408 (1976) (even if containing incriminating information, documents prepared by others not protected under Fifth Amendment).
[In April, 2015], [y]ou testified by deposition that you had approximately $100,000 in your 401(k) as of the date of your deposition, correct?
. . . .
Thereafter, through counsel, you produced a document showing that the current value of your retirement account was over $101,000, correct?
. . . .
At the trial of your divorce on August 12, 2015, through your counsel, you introduced a schedule of property in which you list the 401(k) as having over $100,000 of value, correct?
. . . .
You have wrongfully and without any court order or agreement of your wife or anybody else with the power to agree, you have wrongfully withdrew [sic] approximately $96,000 from your 401(k) in violation of the court's order?
. . . .
You have secreted those funds and hidden them, correct?
. . . .
You wife was awarded 100 percent -- Tamra Decker was awarded 100 percent of that 401(k) that you have wrongfully withdrawn and have hidden from her, correct?
. . . .
You consciously and surreptitiously contacted Fidelity, which is the administrator for your 401(k), and set about a course of conduct with intent to defraud your wife of over $96,000, correct?
. . . .
You still have those funds, do you not?
. . . .
You have the means of identifying where those funds are, do you not?
. . . .
You contacted AT&T or Fidelity, the administrator for AT&T and wrongfully withdrew the 401(k) proceeds from this account in violation of the court's order, did you not?
. . . .
You had no legal right, nor legal excuse, nor justification of any type whatsoever for this act of violating the court's order in withdrawing these funds from the 401(k), is that correct?
. . . .
The allegations that we have made in our petition for enforcement are true and correct, are they not?
. . . .
And you wrongfully withdrew over $96,000, plus whatever interest or dividends the account may have made, you have wrongfully withdrawn and withheld that from its rightful owner, Tamra Decker.
. . . .
All of this is in violation of the court's order, correct?
Tamra testified that, later, when the QDRO was entered, the retirement account that had previously contained more than $101,000.00 only held $6,606.18. She also testified that Brad was the only person she knew who possessed legal authority to access the retirement account and that he never indicated to her that he had withdrawn funds from it during the divorce proceedings. Because Tamra was also seeking an award of attorney fees, her counsel testified that he had incurred $4,305.50 in reasonable and necessary fees, courts costs, and service fees.
The trial court found that Brad had violated several provisions of the divorce decree and the temporary orders and held him in contempt for each violation. In civil contempt, the trial court committed him to county jail "for a period not to exceed eighteen months or until" he repaid the $95,269.33 taken from the retirement account and paid $4,305.50 in attorney fees and costs. In criminal contempt, the trial court committed him to the county jail for 180 days.
The power to punish a party who fails or refuses to obey a prior order or decree of the court for contempt is a broad and inherent power of the court and is an essential element of judicial independence and authority. Ex parte Gorena, 595 S.W.2d 841 (Tex. 1979) (orig. proceeding); see Ex parte Padron, 565 S.W.2d 921 (Tex. 1978) (orig. proceeding); see Ex parte Browne, 543 S.W.2d 82, 86 (Tex. 1976) (orig. proceeding). Contempt can be either civil or criminal, but the distinction does not depend on burdensomeness of the contempt order or whether the underlying proceedings are civil or criminal in nature, but rather on the nature of the court's punishment. See Ex parte Werblud, 536 S.W.2d 542, 545-46 (Tex. 1976) (orig. proceeding), superseded by statute on other grounds, as recognized in In re Sheshtawy, 161 S.W.3d 1, 1-2 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (per curiam). Civil contempt is "remedial and coercive in nature" as the confinement is conditioned on obedience with the court's order, whereas criminal contempt is punishment for an act or omission that affronted the dignity and authority of the court. Werblud, 536 S.W.2d at 545. We must presume that the order holding Brad in contempt and committing him to county jail is valid unless he meets his burden of proving that the order is void, either because the court lacked jurisdiction, the order was beyond the power of the court, or the order deprived him of his liberty without due process of law. See In re Byrom, 316 S.W.3d 787, 791 (Tex. App—Tyler 2010, orig. proceeding); In re Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding); In re Pruitt, 6 S.W.3d 363, 364 (Tex. App.—Beaumont 1999, orig. proceeding).
Brad contends that the order holding him in contempt is void as to criminal contempt because the evidence completely failed to establish that he had violated the temporary injunction or the divorce decree.
Here, there is evidence that the funds were removed, transferred, or otherwise withdrawn from the retirement account between August 29, 2015, and October 21, 2016, the date of the QDRO. However, there is no evidence regarding whether the funds were withdrawn between October 2, 2014, and July 24, 2016, when the temporary order was effective, or whether they were withdrawn after the July 24 divorce decree became effective, or both—essentially, there is no evidence as to which, or whether either, of the court's orders were violated. Therefore, as to criminal contempt, we find that the trial court's findings that Brad violated the temporary orders and the divorce decree are without evidentiary support, rendering the criminal-contempt aspect of the orders void because they deprive him of liberty without due process of law. See Ex parte Helms, 259 S.W.2d 184, 186 (1953) (orig. proceeding); Ex parte Karr, 663 S.W.2d 534, 537 (Tex. App.—Amarillo 1983, orig. proceeding). Accordingly, we sustain Brad's first two issues. Having found the trial court's order of criminal contempt void for lack of evidence, we need not address Brad's other issue on the criminal contempt.
Citing Ex parte Linder, 783 S.W.2d 754 (Tex. App.—Dallas 1990, orig. proceeding), Brad contends that, "[w]hen, as in this case, a trial court imposes only one punishment for multiple acts of contempt, the entire contempt judgment is void if any one of the acts that form the basis of the contempt finding is not properly punishable by contempt." Here, the trial court listed six acts of criminal contempt, all involving the removal of funds from the retirement account, and while the trial court ordered that Brad be confined "for a period of 180 days," it specifically stated that the punishment was "imposed separately . . . for each of the acts of contempt." Therefore, only the invalid portion of the order—the findings and order of criminal contempt—is void. See Ex parte Conoly, 732 S.W.2d 695, 699 (Tex. App.—Dallas 1987, orig. proceeding).
Since the criminal contempt order is invalid, we reverse that portion of the trial court's order.
(2) Brad Was on Notice that Civil Contempt Was Being Sought
Brad's single attack on the civil contempt order argues that it is void because the notice of the show-cause hearing failed to notify him that civil contempt would be sought. We disagree.
Appropriately, Brad does not argue that the evidence is insufficient to support the findings regarding his civil contempt. In a civil proceeding, a fact-finder may draw negative inferences from a party's assertion of the privilege against self-incrimination. See TEX. R. EVID. 513(c); see also Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007) (per curiam); Lozano v. Lozano, 52 S.W.3d 141, 150 (Tex. 2001) (per curiam). Here, as set out earlier in this opinion, Brad asserted his Fifth Amendment privilege in response to every question posed to him on the stand, and therefore, as to civil contempt, the trial court was free to find that Brad had withdrawn the funds from the retirement account in violation of the temporary orders, the decree, or both. See TEX. R. EVID. 513(c).
An alleged contemnor's right to due process of law demands that he be served with "full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt." Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (orig. proceeding). In the absence of such a notice, or proof that he had knowledge of the order/notice's contents, a contempt order is a nullity. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (per curiam).
Here, the trial court's notice conspicuously stated, "SEE ATTACHED MOTION AND ORDER TO APPEAR." Brad admits that Tamra's petition for enforcement of the temporary orders and divorce decree was attached to the notice. The petition states, in relevant part, "Petitioner requests that Respondent be confined in the county jail for eighteen months or until Respondent complies with the order of the Court," which is a clear request for coercive, civil relief. Therefore, Brad received notice sufficient to satisfy due process. See Edgerly, 441 S.W.2d at 516.
Brad argues that, because notification that civil contempt was being sought was contained in neither the Show Cause Notice nor the Order to Appear, the order is void as to civil contempt. He cites no authority that requires the specific relief sought to appear on the face of the notice or order to appear, and we find none. Therefore, we overrule this issue.
We grant Brad's petition as to criminal contempt, but deny his petition as to civil contempt.
Josh R. Morriss, III
Chief Justice Date Submitted: April 5, 2017
Date Decided: April 6, 2017