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Gray's Interesting Cases for February 2005

Updated and presented by David Gray
  1. In re: Henry, 48 Tex. Sup. Ct. J. 14.

    H&W divorced in '97 & H was ordered to pay c/s plus he was ordered to pay the '95 & '96 property taxes on the parties' home which was presumably awarded to W. Note the property tax obligation was not designated as c/s. H didn't pay the taxes so W filed for contempt. The Collins County T/C held H in contempt and sent him to jail for 3 days, there to remain until he paid the unpaid c/s and taxes. H filed a H/C w/the Dallas CA which was denied. (I wonder if H's atty just happened to mention that the 1789 U.S. Const., the 1836 Republic of Texas Const. and the currently existing 1876 Texas Const. expressly prohibit imprisoning a person for debt or perhaps the Collins or Dallas courts just don't recognize this body of law).

    H then filed H/C with the Supremes which granted same citing the Texas constitutional prohibition. Although the T/C could send H to jail for failure to pay c/s, it couldn't imprison him for not paying a debt (taxes), thus when the T/C gave H one sentence for both contempts, if one fails, all fail.

    Comment - Although it's hard to believe the literal words of the Supremes, they said:

    In this case, the Henrys' divorce decree did not indicate that funds to pay the property taxes presently existed, nor did it specify particular community funds from which the property taxes were to be paid. Without such identification of existing funds, we cannot consider Paul a constructive trustee or fiduciary who holds community assets that rightfully belong to Dawn. Consequently, Paul's obligation to pay past-due property taxes is a debt owed to the taxing entity.
    Whoa! What if in the original divorce decree the T/C found that H was awarded a specific existing amount in a specific bank account, or c/d, or a stock acct. sufficient to pay the taxes and ordered him to use these funds to pay the taxes. Can he be held in contempt now? A literal reading of this opinion says "Yes." You might try this. Who knows, maybe debtors prisons may return.

  2. In re: Sheshtawy, 150 S.W. 3d 772 (Tex. 2004).

    H & W divorced and H was ordered to pay W alimony of $600/mo. for 3 yrs. which he didn't pay. W filed for contempt. However before the contempt hearing, H filed a timely appeal of the divorce/alimony judgment without filing a supersedeas bond. The T/C then held H in contempt and sentenced him to 6 mos. in jail, there to remain until he paid W the unpaid alimony plus atty fees, etc. H filed H/C with the CA which was denied. H then filed H/C with the Supremes which granted the writ but not for the reasons you think. The issue before the Supremes was, "Can a T/C enforce its orders when an appeal has been perfected without the judgment being superceded?"

    Recognizing that they have issued opinions saying that a T/C can't enforce its judgment while an appeal is pending -- only the CA can (Boniface, 650/776/2 and Schultz, 810/738/2), the Supremes reversed themselves and said where a supersedeas bond has not been filed, a judgment under appeal may be enforced (including contempt) by either the T/C or the CA. So why was the writ granted? When the CA reversed the T/C's alimony order, the alimony order was no longer enforceable by civil contempt hence H goes free for now. The Supremes then went on to say although H couldn't be jailed under a coercive sentence, he could be jailed under a criminal sentence for failure to pay the alimony prior to the time the alimony order was reversed.

    Comment - WOW! Assume there was 24 mos. between the T/C judgment and the Supremes' opinion, H could go to jail for 12 yrs. for failure to obey a now non-existent order. What if the T/C found that a unique piece of personal property was community property and ordered it delivered to W which H didn't do. The CA reverses finding that the property is H's separate property. H can go to jail for failure to deliver his separate property? Somehow this doesn't seem right.

  3. In the Matter of the Marriage of Runberg, No. 07-03-0382-CV, not yet published (CA, Amarillo).

    W filed for divorce and served H with citation plus a show cause order. H showed up pro se for the show cause hearing and was heavily involved in the hearing culminating in an extensive temp. order. Unfortunately H didn't file an answer so on the 61st day W took a default divorce including child custody, c/s and property division. H timely filed a MNT which the T/C denied. H appeals claiming that since he had "appeared" in the case, his 14th amend. const. rights were denied by not giving him notice of trial. W defended by saying that H's MNT did not specific the 3 required grounds for granting a MNT as set forth in our Supremes' opinion in Craddock (133/124/2).

    Without going thru the CA's analysis of why the 3 prong test of Craddock doesn't apply, the CA ruled that H had appeared in the case. When a party "appears" in a case, even though he/she hasn't filed an answer, he/she has the const. right to be notified of trial, even a default trial. See Lopez, 757/721/2.

    Comment - If H shows up for a show cause hearing but doesn't file an answer, you better give him notice of trial or all may be for naught.