Preface: Once again the powers-to-be with the Houston Family Law Section substituted a cocktail party for the regular December meeting so this is a two-month issue. Generally this means that there are a bunch of cases but not so this year. The appellate courts in recent months appear to have a moratorium on family law cases and the ones they do publish are not particularly interesting. Hopefully this will improve in future months.
The Big Case That Wasn't.
In re: Patilo, No. 13-00-575-CV, not yet published (CA, Corpus Christi). H & W divorced in '90 and H was ordered to pay c/s of $350.00/mo. per child for 2 kids. H didn't pay so W filed for contempt. The c/s arrearage was set at $44,000.00; however, the 6/11/99 contempt order only found H in contempt for failure to pay 29 installments at $350.00 each ($10,150) plus a failure to pay $1,021 in medical expenses. H was sentenced to 90 days for each violation (puntative) to run concurrently and there to remain until he paid W: (a) $44,000 for back c/s; (b) $1,021 for uninsured medical; (c) $298 for court costs; and (d) $3,000 in atty fees. Commitment was suspended provided he paid the regular $700/mo c/s for the next 90 days. Naturally H didn't pay so on 9/7/2000 (15 mos. later) the T/C signed a commitment order placing H in jail.
H files H/C which was denied after the CA reformed the orders. The puntative sentence for the 29 violations plus the medical is o.k. so H has to serve 90 days but the coersive sentence is faulty because: (a) H can't be held in jail until he pays an amount ($44,000) greater than the amount of c/s for which he was held in contempt ($10,150) plus the medical; (b) H wasn't held in contempt for failure to pay court costs ($298) or atty fees ($3,000) so he can't be held in jail until he pays such. The CA reformed the contempt and commitment orders deleting the faulty parts with the end result that H goes to jail for 90 days and remains there until he pays W $11,191 (c/s plus medical).
Comment - For years I've seen judges hold people in contempt and sentence them to 3 days (or more) for failure to pay c/s and there to remain until they pay 100% of the c/s for which they were held in contempt plus the atty fees and court costs. This case has got to be wrong. Well yes and no. I did find cases that said you can use a coersive sentence to force payment of court costs (Cummings, 610/238 & Roy, 595/875) but none on atty fees so the C/A was right on atty fees but not court costs. Does this mean that a dead beat can't be held in jail until he pays the atty fees incurred in bringing the contempt action? Well yes but then again no. Note that this matter was adjudicated in June 99 so the T/C couldn't force the payment of W's atty fees but 157.167 came into effect on 9/1/99 which says if a party is held in contempt for failure to pay c/s, the T/C shall order the obligor to pay the obligee's reasonable atty fees plus court costs and such fees and costs may be enforced the same way c/s is enforced, i.e. stay in jail until paid. So all the old orders that I was used to were always void but those after 9/1/99 are now good.
What about enforcement of other court orders on visitation, etc. Yes violators can go to jail (puntative) and probably remain (coersive) in some respects (turn over documents, tell us where the kid is) but you can't condition release on the payment of atty fees and court costs. Note that we're only talking about conditions set for release under a coersive sentence not conditions of probation. A T/C can suspend commitment upon satisfying reasonable conditions such as paying W's atty fees or paying back c/s which isn't subject to jail time commitment so the cat can be skinned another way if you are careful in your drafting and the T/C wants to be creative.
