Opinion
No. 01-04-00263-CV
Opinion issued July 21, 2004.
Original Proceeding on Petition for Writ of Habeas Corpus.
Shawn Casey, Shawn Casey Associates, Houston, TX, for relator.
Hon. Bonnie Crane Hellums, 247th District Court, Houston, TX, for respondent.
Deborah L. Thompson, Houston, TX, for real party in interest.
Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
MEMORANDUM OPINION ON REHEARING
Relator Luciano Sarabia requests this Court to grant him habeas corpus relief on one or both of the two following grounds: (1) the trial court failed to comply with Texas Family Code, section 157.166 by not including in the enforcement order the provision of the order sought to be enforced that specified the place that the trial court ordered him to make child support payments, thereby violating his due process rights and rendering the contempt order void, and (2) the order sought to be enforced is void because, in it, the trial court did not clearly specify when and for how long it was ordering relator to make child support payments.
We deny relief.
Factual Background
A. 1994 Paternity and Child Support Order
In 1994, the Office of the Attorney General of Texas brought a paternity suit against relator. On December 16, 1994, in In the Interest of Adrianna Sarabia, a Minor Child, Cause No. 9406501-F, in the 214th District Court of Nueces County, Texas, the trial court found relator to be the father of Adrianna Sarabia, born July 17, 1991, and found Elizabeth, the real-party-in-interest, to be her mother. It ordered relator to pay child support of $280 per month to Elizabeth through the Nueces County Child Support Office. It also provided that relator's current or subsequent employers withold from his disposable earnings money in the amount and at the frequency that the trial court ordered for the child support payments and as more fully set out in an "EMPLOYER'S ORDER TO WITHOLD EARNINGS FOR CHILD SUPPORT" that was to be entered.
B. 1998 Divorce Decree/Adoption of 1994 Child Support Order
On July 8, 1998, in In the Matter of the Marriage of Elizabeth Sarabia and Luciano Sarabia, Jr. and In the Interest of Adrianna M. Sarabia, a Child, Cause No. C97-210C, in the 274th District Court of Comal County, Texas, in its divorce decree, the trial court found that the Nueces County, December 16, 1994 child support order was in Adrianna's best interest and that it remained in effect. Although the court found that Elizabeth and Adrianna resided in San Antonio, it did not make a new order regarding where relator should pay the child support.
C. Elizabeth's 2003 Motion to Enforce `94/`98 Support Order
On July 18, 2003, in In the Interest of Adrianna M. Sarabia, a Child, Cause No. 2003-07072, in the 247th District Court of Harris County, Texas, Elizabeth filed her first amended motion to enforce the 1994 child support order as restated in the 1998 divorce decree ("motion to enforce"). In her motion to enforce, Elizabeth conceded that relator had made certain payments toward his child support obligation. In fact, Exhibit E to Elizabeth's motion showed that, from February 13, 2003 to July 2, 2003, relator made three, wage-witheld payments, totaling $476, to the Texas Child Support Disbursement Unit.
Sometime after the divorce, Elizabeth started using the surname Wolma instead of Sarabia.
In order for a State to meet the requirements of this section, the State Agency must establish and operate a unit (which shall be known as the" State disbursement unit") for the collection and disbursement of payments under support orders —
(A) in all cases being enforced by the State pursuant to section 454(4) [42 USCS §§ 654(4)]; and
(B) in all cases not being enforced by the State under this part [42 USCS §§ 651 et seq.] in which the support order is initially issued in the State on or after January 1, 1994, and in which the income of the custodial parent is subject to witholding pursuant to section 466(a)(8)(B) [42 USCS § 666(a)(8)(B)].
42 USCS § 654b(a)(1)(A),(B) (Lexis Law Publishing 1998).
* * * * *
(a) The Title IV-D agency shall establish and operate a state case registry and state disbursement unit meeting the requirements of 42 U.S.C. § 654a(e) and 654(b).
TEX. FAM. CODE Ann. § 234.001(a) (Vernon 2002).
The enforcement order discussed below indicates that the State disbursement unit is in San Antonio.
Elizabeth's allegations of relator's violations of the child support order accused him of not paying the correct amounts at the correct times. Out of 80 alleged violations, none accused relator of making the payments in the wrong place. Relator has provided us with no record showing that he was confused about where to make his child support payments or that he made uncredited child support payments to the Nueces County Child Support Office. There is nothing in the record to indicate that relator made his 2003 child support payments to any place other than the San Antonio Texas Child Support Disbursement Unit.
D. October 2, 2003 Enforcement Order
On August 1, 2003, the trial court heard Elizabeth's motion to enforce the child support order. As a result, on October 2, 2003, the trial court signed an order holding relator in contempt (the "enforcement order") for five instances of not making his $280 monthly child support payment (March 1, 2003 through July 1, 2003). Included in the section entitled "Contempt Findings and Findings on Arrears" was the statement that relator had "failed to pay child support as ordered to ELIZABETH WOLMA through the Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791 in the amounts and on the dates shown below: [here follows a tabular enumeration of five missed payments]. . . ." The trial court sentenced relator to be committed to the county jail "for a period of 180 days for each separate violation enumerated above and shall serve said jail sentence on the weekend."
The trial court suspended the commitment, provided: (1) on the first of each month, starting October 1, 2003, relator make a $150 payment to Elizabeth through the San Antonio Texas Child Support Disbursement Unit until the $1,260 child support arrearage was paid and (2) on the first of each month, starting October 1, 2003, relator make a $175 payment directly to Deborah Thompson, Elizabeth's attorney, until the $3,000 attorney's fees, expenses, and costs were paid. The trial court set compliance hearing dates for December 11, 2003, March 11, 2004, May 11, 2004, and August 12, 2004. Relator has not provided us with a record of the August 1, 2003 hearing.
E. March 19, 2004 Revocation/Commitment Order
On March 19, 2004, the trial court found that relator had not made the $175 payments in November and December 2003 and January through March 2004. It revoked his suspension of commitment and ordered that he be confined for "one-hundred eighty days (180) for each and every one of the violations enumerated above to be served on weekends and each such sentence to be served concurrently." We will refer to this order as the March 19, 2004 revocation order.
F. Relator's March 25, 2004 Petition for Writ of Habeas Corpus
On March 25, 2004, relator filed with us the petition for habeas corpus relief presently under consideration. Initially, we stayed the confinement portion of the March 19, 2004 revocation order, but then denied habeas corpus relief because relator had not established that he was subject to restraint under the March 19, 2004 revocation order. We granted relator's motion for rehearing, however, because, in it; he provided sufficient evidence of restraint. We reinstituted the confinement stay pending our consideration on the merits of relator's petition, to which we now turn.
Standard of Review
A writ of habeas corpus will issue if a contempt order is void because it deprives the relator of liberty without due process of law, see Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996), or because it is beyond the power of the court to issue. See Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980); In re Mott, No. 01-04-00128-CV, 2004 Tex. App. LEXIS 4951, at *7-*8 (Tex. App.-Houston [1st Dist.] May 24, 2004, orig. proceeding). In a proceeding for a writ of habeas corpus, a relator bears the burden of proof to show that he is held under a void judgment. Ex parte Linder, 783 S.W.2d 754, 760 (Tex. App.-Dallas 1990, orig. proceeding).
Relator's Due Process Rights Not Violated Because Court Complied With Texas Family Code Section 157.166
In issue one, relator asserts that he is entitled to habeas corpus relief because the trial court failed to comply with Texas Family Code section 157.166 by not including in its enforcement order the provision of the order sought to be enforced that specified the place that the trial court ordered him to make child support payments, thereby violating his due process rights and rendering the contempt order void.
(a) An enforcement order must include:
(1) in ordinary and concise language the provisions of the order for whichenforcement was requested;
(2) the acts or omissions that are the subject of the order;
(3) the manner of the respondent's noncompliance; and
(4) the relief granted by the court.
(b) 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 (Vernon 2002).
The purpose of an enforcement order is to notify the contemner of how he has violated the provisions for which enforcement is sought. Ex parte Conoly, 732 S.W.2d 695, 697 (Tex. App.-Dallas 1987, orig. proceeding).
In this case, the motion for enforcement is clear that Elizabeth sought to have the child support payment amount and date provisions of the support order enforced and not its payment place provision. The trial court correspondingly reflected this in the "Findings" and "Relief Granted" sections of its enforcement order:
Findings
The Court finds that on December 16, 1994 Respondent was ordered to make periodic payments of child support, in an order in Cause No. 94-6501F, styled "In the Interest of Adrianna Sarabia, a minor child," in 214th Judicial District Court of Nueces County, the Court signed an order, entitled Order in Suit Affecting the Parent-Child Relationship adopted on December 16, 1994, . . . states in relevant part as follows:
The Court ORDERS Obligor LUCIANO SARABIA, JR. to pay Obligee ELIZABETH SARABIA regular child support of $280.00 each MONTH beginning the 1st day of January, 1995 payable on or before that date and on or before the same day(s) of each month thereafter while any child is less than 18 years of age or while any child is fully enrolled in an accredited school in a program leading toward a high school diploma, whichever occurs last, or until every child is otherwise emancipated.
The Court further finds that on February 3, 1998 Respondent was ordered to make periodic payments of child support in an order in Cause No. C96-210C styled "In the Matter of the Marriage of Elizabeth Sarabia and Luciano Sarabia, Jr. And In the Interest of Adrianna M. Sarabia, a child," in the 274th Judicial District Court of Comal County, [which] . . . states in relevant part as follows:Child Support
The Court, having considered the circumstances of the parents of the child, finds that the terms previously ordered in Order in Suit Affecting the Parent-Child Relationship signed and entered on December 16, 1994, Cause No. 94-6501F; In the Interest of Adriana [sic] Sarabia A Minor Child; In the 214th Judicial District Court of Nueces County, Texas are in the best interest of the child and remain in effect.
The Court further finds that Respondent has failed to pay child support as ordered to ELIZABETH WOLMA through Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 6826509791 in the amounts and on the dates shown below:
Violation Date Due Date Paid Amount Due Amount Paid
1. 3/1/03 none paid $280.00 000.00 2. 4/1/03 none paid $280.00 000.00 3. 5/1/03 none paid $280.00 000.00 4. 6/1/03 none paid $280.00 000.00 5. 7/1/03 7/2/03 $280.00 140.00
. . . .
Relief Granted
IT IS ADJUDGED that Respondent LUCIANO SARABIA, JR., is in contempt for each separate violation enumerated above.Criminal Contempt
IT IS ORDERED that punishment for each separate violation is assessed confinement in the county jail of HARRIS County, Texas, for a period of 180 days.
IT IS THEREFORE ORDERED that Respondent is committed to the county jail of HARRIS County, Texas, for a period of 180 days for each separate violation enumerated above and shall serve said jail sentence on the weekends.
(Emphasis added.)
This language tells relator that the manner of his noncompliance with the child support order is by not paying the prescribed $280 per month on the first day of the month from March 1, 2003 through July 1, 2003. Thus, in the enforcement order, the trial court complied with section 157.166(a)(3). The reference to the San Antonio Child Support Disbursement Unit is surplusage. The record reflects that relator, when he chose to do so, knew how to make child support payments so that he properly received credit for them, raising the reasonable inference that he knew where to make them. Relator has not provided us with a record showing that he was confused about where to make his child support payments.
Regarding relator's complaint that the enforcement order did not quote or otherwise reference the portion of the support order that indicates where relator was to make payments, we note that there is nothing in section 157.166(b) that explicitly requires this. Further, as we have noted, because Elizabeth was not seeking to enforce the place-of-payment provision of the support order, there was no need for the trial court to set it out in the enforcement order. See Ex parte Mathis, 822 S.W.2d 727, 731 (Tex. App.-Tyler 1991, orig. proceeding) (holding that to allow Mathis to escape consequences of his conscious disregard of his court ordered child support obligation simply because enforcement order did not recite a place of payment would be insupportable, "especially since Relator knew and actually had made several payments through the District Clerk's office before the location was specified by order.").
We conclude that the trial court complied with section 157.166 and that relator has not shown a violation of his due process rights. We overrule issue one.
Ex parte Stanley, 826 S.W.2d 772 (Tex. App.-Dallas 1992, orig. proceeding), which relator cites to support this issue, is inapposite. The Stanley court held that former Texas Family Code section 14.33(a) required an enforcement order to include the provisions of the order, decree, or judgment sought to be enforced. Id. at 772. Because, in this case, relator was not seeking to enforce the place of payment provision, the trial court did not need to include it in the enforcement order.
Child Support Order Is Clear Enough To Be Enforced
In issue two, relator asserts that the child support order is too vague and ambiguous to be enforced by contempt. Specifically, he asserts that the date for making payments and the duration of the support obligation is unclear.
A. Date for Making Payments
In the first part of issue two, relator asserts that the child support order is too vague and ambiguous to be enforced by contempt because the payment date is unclear.
The order in question reads as follows:
The Court ORDERS Obligor LUCIANO SARABIA, JR. to pay obligee ELIZABETH SARABIA regular child support of $280.00 each Month beginning the 1st day of January 1995 payable on or before that date and on or before the same day(s) of each Month thereafter while any child is fully enrolled in an accredited school in a program leading toward a high school diploma, whichever occurs last, or until every child is otherwise emancipated.
At the very least, the language is clear that relator is to pay $280 per month. In the enforcement order, the trial court found that relator had not paid $280 in any of the five months from March through July. A relator who knows with certainty that he is required to pay $280 once a month under an order can be punished for contempt for choosing to ignore the order by paying nothing in four out of five of the months in question and half of the amount required in the fifth month. See Linder, 783 S.W.2d at 758 (holding, "A relator who knows with certainty that he is required to pay either $250 a month or $112.50 twice a month under an order can be punished for contempt for choosing to ignore the order completely."). Accordingly, we hold that relator's argument that he should be released from restraint because the support order is vague and ambiguous regarding the date to make the support payment is without merit.
B. Duration of Support Obligation
In the second part of issue two, relator argues that the support order is unclear about the duration of his child support obligation, citing the portion of the order that says that the obligation will continue "while any child is less than 18 years of age or while any child is fully enrolled in an accredited school in a program leading toward a high school diploma, whichever occurs last, or until every child is otherwise emancipated."
In his brief, relator concedes that Adrianna is the only child who is the subject of the support order. Thus, any reference to a child in the support order is to Adrianna. Relator has produced no record evidence that he was confused about the application of the age limitation, school enrollment, or any other limitation on his child support obligation to Adrianna. We hold that relator's argument that the duration of his child support obligation is unclear is without merit.
We overrule issue two.
Conclusion
We deny habeas corpus relief and remand relator to the custody of the Sheriff of Harris County to resume his confinement in accordance with the trial court's March 19, 2004 revocation order.