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Petition for Writ of Mandamus Denied and Opinion filed February 26, 2009.

 

In The

 

Fourteenth Court of Appeals

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NO. 14-08-01075-CV

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IN RE JOHN W. SMALL, Relator

 

 

 

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

 

 

O P I N I O N

On November 25, 2008, relator, John W. Small, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable Mary Nell Crapitto, presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster.  We deny the petition for writ of mandamus. 


                                                               Background

In April 2005, a jury found that relator and McMaster had entered a common law marriage on December 25, 1991.  On May 17, 2005, the trial court entered an interlocutory judgment adopting the jury=s finding.  On November 1, 2005, after holding hearings on July 20, 2005 and September 12, 2005, the trial court signed an order directing relator to pay McMaster monthly temporary support in the amount of $4,000.00. 

On March 8, 2006, the trial court held a hearing on McMaster=s first motion for enforcement of temporary spousal support.  On April 20, 2006, the trial court signed an order, finding relator in contempt for failing to pay temporary support from November 1, 2005 through March 1, 2006. 

On May 1, 2006, relator filed a petition for writ of mandamus in this court, requesting that we direct the trial court to deny any motion for enforcement of temporary support filed by McMaster, reverse its April 20, 2006 contempt and commitment order, and modify the November 1, 2005 order for temporary support.  On June 1, 2006, this court denied relator=s petition for writ of mandamus. 

In October 2007, the trial court held a second jury trial on issues of community property.  The jury made findings regarding which properties were community property, relator=s separate property, or third party property, and findings regarding the value of the community property.  The jury further found that relator had committed fraud with respect to the community property rights of McMaster.  A final judgment has not been entered on the jury findings.  On October 26, 2007, the trial court granted McMaster=s motion for appointment of joint receivers.  On November 8, 2007, relator filed for bankruptcy.[1] 


On October 29, 2008, the trial court held a hearing on McMaster=s fifth motion to enforce in which McMaster asked the trial court to direct relator to pay the $20,000 in arrears previously ordered on April 20, 2006, and $124,000 in arrears through October 1, 2008.  On October 31, 2008, the trial court entered an order, finding that relator was able to pay temporary monthly spousal support in the amount of $4,000.00 from April 1, 2006 through October 1, 2008, and is in arrears in the amount of $124,000.00 for that period.  The trial court found relator in contempt for each violation and assessed confinement in Galveston County jail for 179 days, but probated the sentence for one year provided that relator paid the $124,000.00 in arrears in four installments of $31,000.00 each on or before December 1, 2008, January 3, 2009, February 2, 2009, and March 2, 2009.  The trial court also assessed attorney=s fees and costs in the amount of $8,694.15 against relator and directed that he pay such amount on or before March 2, 2009.  The trial court further ordered relator to pay the $20,000.00 in arrears, as directed in the April 20, 2006 contempt order, and $25,000.00 in attorney=s fees, as directed in the November 1, 2005 order, on or before March 2, 2009.  We stayed the October 31, 2008 contempt order. 

In his petition, relator claims he was denied due process because he was not allowed to put on his defenses to McMaster=s motion to enforce, he is not financially able to pay the court-ordered temporary spousal support, and, alternatively, the November 1, 2005 order awarding temporary spousal support is void. 

                                                       Standard of Review


Because relator is not restrained, petition for writ of mandamus, rather than habeas corpus, is relator=s only possible relief.  In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995) (orig. proceeding) (per curiam).  To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).  A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court=s decision unless it is shown to be arbitrary and unreasonable.  In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam).  Therefore, the relator must establish that the trial court could have reached only one decision.  Walker, 827 S.W.2d at 840.  An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court=s decision.  IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).

Section 6.502 provides for temporary support while a suit for dissolution of a marriage is pending.  Tex. Fam. Code Ann. ' 6.502(a)(2).  Generally, a person who willfully disobeys a valid court order is guilty of contempt and subject to imprisonment for a prescribed period until he complies with the order.  Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993) (orig. proceeding).  An order requiring temporary support payments is enforceable by contempt.  Id. 


A contempt order is void if the evidence offered at the hearing conclusively establishes that, at the time of the contempt hearing, the relator did not have, and had no source from which he might reasonably be expected to obtain, the amount of the arrears.  Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967) (orig. proceeding).  The relator must be able to perform the order of the court; if his inability is conclusively shown, the trial court has no power to order the coercive imprisonment.  Id.; see also Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948) (AWhere it is not within the power of a person to perform the act which alone will purge him of contempt, the court is without power to imprison him for an indefinite term as punishment for an offense already committed.@).  Relator bears the burden Aof showing that it was impossible for him to pay the sums of money required to be paid under the order.@  Ex parte Williams, 469 S.W.2d 449, 452 (Tex. Civ. App.CBeaumont 1971, orig. proceeding). 

                                                                    Analysis

                                           Ability to Pay the Temporary Support

Relator contends the trial court deprived him of his due process right to present evidence of his inability to pay due to a bankruptcy court order prohibiting payment of outside claims as a defense to the contempt.  On February 15, 2008, the bankruptcy court signed an order allowing payments that are paid from relator=s future earnings, but not from the property of the bankruptcy estate.  When relator offered a certified copy of the bankruptcy court=s order into evidence, the trial court sustained McMaster=s objection based on Rule 902(10)(a) of the Texas Rules of Evidence because she had not been provided a copy of the order 14 days prior to the hearing.  Tex. R. Evid. 902(10)(a).  However, Rule 902(10) only applies to business records.  See, e.g., Trantham v. Isaacks, 218 S.W.3d 750, 755 (Tex. App.CFort Worth 2007, pet. denied), cert. denied, __ U.S. __, 128 S. Ct. 340 (2007); Sharp v. State, 210 S.W.3d 835, 840 (Tex. App.CAmarillo 2006, no pet.); Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 191 (Tex. App.CCorpus Christi 1989, no writ).  Here, relator was attempting to introduce a certified copy of the bankruptcy court=s order, as provided in Rule 902(4), which has no 14-day requirement.  Tex. R. Evid. 902(4); Sharp, 210 S.W.3d at 840; Sims v. State, 783 S.W.2d 786, 789 (Tex. App.CHouston [1st Dist.] 1990, no pet.). 


Although the trial court erroneously refused to admit the bankruptcy court=s order into evidence, relator testified, without objection, about the effects of that order.  Relator testified he is a debtor in possession, with the property under the control of the bankruptcy trustee.  Relator explained, Athe trustee owns everything I have in the world.  And the trustee has been charged by the court, the bankruptcy court, to obtain whatever property that I have.@  Relator also testified the bankruptcy court=s order prohibits him from paying any spousal support except from his future earnings. 

Relator also complains the trial court prohibited him from questioning his son, Robert Small, about his ability to help relator pay the temporary support.  However, Small testified, without objection, he does not have the money to pay the temporary support.  Relator similarly testified his son is not in a position to lend him money to pay the support and his attempts to borrow from his son have been unsuccessful. 

Relator further complains the trial court=s refusal to allow him to question his son about any property available for him to convert in order to pay the temporary support.  While this line of questioning may have been relevant to the issue of relator=s ability to pay, as explained below, the trial court had conflicting evidence before it on that issue.

Relator, who is age 74, contends he has no income other than his $1,207 monthly social security check, and his attempts to obtain a bank loan have also been unsuccessful.  However, McMaster contends relator has never requested a modification of the joint receivership from the trial court, or the February 15, 2008 order from the bankruptcy court to allow him to encumber, sell, or dispose of any community property asset in order to pay the temporary support.  Relator does not dispute this contention and has not otherwise shown that he has made any attempt to seek relief from the trial court or the bankruptcy court.  See Williams, 469 S.W.2d at 452 (rejecting petitioner=s assertion that he had conclusively established his inability to pay when he had made no formal request of trial court for modification of temporary injunction in order to obtain funds to comply with trial court=s order).


Moreover, at the October 2007 trial on the determination of community property, the jury found relator had committed fraud with respect to McMaster=s community property rights, and relator=s claimed Acurrent@ wife holds or controls certain community property.[2]  Relator has not shown that community property found to have been transferred outside the marital estate and under the control of relator=s claimed current wife, such as a yacht valued at $1,000,000.00, cannot be used to pay the temporary support.  We cannot say the trial court abused its discretion by finding relator has the ability to pay the temporary support when faced with conflicting evidence.  See IKB Indus. (Nigeria) Ltd., 938 S.W.2d at 445; Ruiz, 868 S.W.2d at 758.  Nor may an appellate court resolve fact issues in a mandamus proceeding.  Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991).  Relator has not satisfied his burden to conclusively establish his inability to comply with trial court=s order to pay McMaster temporary spousal support. 

                                                    Other Defenses to Contempt


Relator further contends the trial court abused its discretion by limiting his defenses to McMaster=s motion to enforce to those defenses enumerated in Section 8.059 of the Texas Family Code, which is applicable to post-divorce spousal support.  Tex. Fam. Code Ann. ' 8.059 (Vernon 2006).[3]  Relator contends that Section 6.506 of the Texas Family Code, the applicable statute in this case, does not limit the defenses to a contempt charge.  Tex. Fam. Code Ann. ' 6.506 (Vernon 2006).  A review of the record shows relator raised the same section 8.059 defenses in his response to McMaster=s motion to enforce, which he filed before the hearing.  Because relator=s other purported defenses, as addressed below, are without merit, we need not address this issue.

Relator asserts the trial court erred by not allowing him to present evidence of McMaster=s purported dishonest business practices, which would tend to impeach her credibility, as a defense to the contempt charge.  A review of the record reflects that most of McMaster=s testimony concerned relators= failure to make any temporary support paymentsCa fact not controverted by relator.  Therefore, McMaster=s credibility is not at issue.  Relator further complains the trial court erroneously precluded his questioning McMaster about her Amotive@ in seeking to enforce the court-ordered support.  This complaint is similarly without merit.  After the trial court sustained McMaster=s relevance objection, relator continued to question McMaster about her motive, to which McMaster responded, ATo comply with the Court=s orders.@  Relator may not like the answer, but McMaster answered his question. 

                                            Award of Temporary Spousal Support


Relator contends the trial court abused its discretion by awarding temporary spousal support in the first place because it was used to improperly divide the community assets.  See Herschberg v. Herschberg, 994 S.W.2d 273, 278 (Tex. App.CCorpus Christi 1999, orig. proceeding) (ASpecifically, temporary support pending divorce has for its purpose the maintenance of the family until the final decree.  It is not a property right, but is to be determined by the consideration of the needs of the applicant.@).  While relator claims McMaster had lived without support from him and she was able to pay for her necessities, evidence at the temporary order hearings showed McMaster had an annual income of $30,000.00, and monthly expenses of $13,000.00, including a $5,000.00 monthly payment for outstanding attorney=s fees in the amount of $73,000.00.  A trial court does not abuse its discretion when it bases its ruling on conflicting evidence.  See IKB Indus. (Nigeria) Ltd., 938 S.W.2d at 445; Ruiz, 868 S.W.2d at 758.  We will not attempt to resolve any fact issues in this mandamus proceedings.  See Hooks, 808 S.W.2d at 60. 

Relator also complains he was not allowed to present evidence of McMaster=s current income or changes in McMaster=s financial situation since the trial court awarded temporary support in November 1, 2005, which he claims would show she does not need the support.  The portions of the record relator cites in support of his claim he was precluded from asking about McMaster=s antiques business actually relate to the questions relator attempted to ask in seeking to impeach McMaster=s credibility.  Moreover, there was no pending request by relator to modify the November 1, 2005 order awarding temporary support when the trial court held the October 29, 2008 contempt hearing. 

                                                                Conclusion

The trial court resolved the factual disputes in the underlying proceedings.  As an appellate court, we will not second guess the trial court on the resolution of those fact issues.  Therefore, relator has not shown the trial court abused its discretion by awarding temporary spousal support or by holding him in contempt for failing to pay the court-ordered support.  Because relator has not established his entitlement to the extraordinary relief of a writ of mandamus, we deny relator=s petition for writ of mandamus and lift our stay order entered on December 19, 2008. 

 

 

 

/s/        John S. Anderson

Justice

 

 

 

Panel consists of Justices Yates, Anderson, and Boyce. 



            [1]  Relator had previously filed pro se a bankruptcy petition on July 19, 2005, which was dismissed on January 31, 2006. 

            [2]  Relator asserts, without citing any supporting authority, the jury charge in the October 2007 trial is not evidence.  Moreover, when McMaster offered the charge into evidence, relator responded, ANo objection.@ 

            [3]  Section 8.059 provides, in relevant part:

(c) It is an affirmative defense to an allegation of contempt of court or the violation of a condition of probation requiring payment of court‑ordered maintenance that the obligor:

(1) lacked the ability to provide maintenance in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the needed funds;  and

(4) did not know of a source from which the money could have been borrowed or otherwise legally obtained.

Tex. Fam. Code Ann. 8.059.