In re Corder (Tex.App.- Houston [1st Dist.] Apr. 10, 2009)(Taft) (child support contempt punitive
contempt, civil contempt, inability to pay defense, habeas corpus premature, child support case law)
DENY PETITION FOR WRIT OF HABEAS CORPUS: Opinion by Justice Taft
Before Justices Taft, Bland and Sharp
01-09-00004-CV In re Dale Corder
Appeal from 245th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz
Because the civil, coercive portion of the trial court's contempt order will not go into
effect until relator completes his punitive confinement assessment, relator's
assertion, in point of error four, that he is presently unable to comply with it is
premature. See Ex parte Robertson, 880 S.W.2d 803, 803-04 (Tex. App.--Houston
[1st Dist.] 1994, orig. proceeding) ("A relator's current inability to pay does not affect
his obligation to serve the criminal contempt portion of his sentence.").
We thus do not reach point of error four.
IN RE DALE CORDER, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
O P I N I O N
Relator, Dale Corder, requests habeas corpus relief from the trial court's August 19, 2008 order holding
him in contempt and committing him to confinement in the Harris County Jail for 180 days as punishment
and, thereafter, as a civil coercive measure, from day to day until he pays child support arrearage. Real
party in interest, Norma Jean Veglia, has filed no response to relator's petition for writ of habeas corpus.
We examine relator's points of error relating to the punitive portion of the contempt order. Holding that
those points are without merit, we conclude that the punitive portion of the contempt order is valid. We
further conclude that relator's challenge to the civil, coercive portion of the challenged order is premature,
and we thus do not reach it. We remand relator to the custody of the sheriff to finish serving the balance
of the punitive confinement assessed by the trial court.
Background
The trial court dissolved the marriage of relator and Veglia on February 14, 2000. In the decree, the trial
court ordered relator to pay Veglia child support of $400 per month on the first of each month,
commencing February 1, 2000. Additionally, the trial court ordered relator to provide medical support for
the couple's children.
On April 8, 2008, Veglia filed a motion for contempt, alleging that, commencing June 1, 2002 and ending
April 1, 2008, relator had failed to pay child support as ordered, resulting in an arrearage of $7,360.36.
She further alleged that relator had failed to pay her for medical support of the children as ordered in the
decree. Additionally, Veglia pleaded that two more $400 child support payments would come due on May
1, 2008 and June 1, 2008. In July 2008, relator filed a response to Veglia's motion, asserting inability to
pay the support and claiming reimbursement and offsets for support that he had provided to one of the
children when that child had lived with relator from June 2006 to June 2008.
On August 19, 2008, the trial court heard Veglia's motion for contempt. The trial court found that although
he had the ability to pay them, relator did not make his $400 monthly child support payments for the
periods of July 1, 2005 through October 1, 2006 and April 1, 2008 through August 1, 2008. Additionally,
the trial court found relator's ongoing, periodic child support arrearage that had accrued during the period
from June 1, 2002 through August 19, 2008, when added to a May 10, 2002 previously adjudicated
amount, to total $15,069.91. Moreover, the trial court found that relator owed Veglia $4,781.82 for his
share of health insurance premiums and uninsured medical expenses that she had paid, for a total child
support arrearage of $19,851.73, exclusive of attorney's fees. Finally, the trial court found that relator
owed Veglia $7,735 in attorney's fees for her attorney's services relative to the contempt proceeding. The
trial court assessed relator multiple 180-day punitive confinement sentences for each of the multiple
violations of the child support order that it found and ordered that the periods of punitive confinement run
concurrently.
As a civil, coercive measure, the trial court also ordered that after relator completed his punitive
confinement, he remain confined from day to day until he paid Veglia the $19,851.73, attorney's fees of
$7,735, and court costs. The sheriff took relator into custody on August 19, 2008, where he remained
until February 4, 2009, when, upon posting bond, he was conditionally discharged from confinement,
pending our final determination of his petition for habeas corpus relief.
Standard of Review
A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the
final guilt or innocence of the relator, but to ascertain whether relator has been confined unlawfully. Ex
parte Gordon, 584 S.W.2d 686, 687-88 (Tex. 1979). The presumption is that the order is valid. In re
Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte
Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist] 1990, orig. proceeding)). We issue a writ
of habeas corpus if a trial court's contempt order is beyond the court's power or the court did not afford
relator due process of law. Id. at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). The realtor
bears the burden of showing that he is entitled to relief. Id. at 288 (citing Occhipenti, 796 S.W.2d at
808-09).
Punitive Confinement Assessment
We first examine relator's points of error one, two, three and five, which bear on the validity of the trial
court's assessment of concurrent punitive confinement for 180 days.
A. Rights to a Jury Trial and Against Self-Incrimination
In points of error one and two, relator asserts that his due process rights under United States Constitution
Amendment V and Texas Constitution article I, section 15 were violated because the trial court did not
admonish him of his right to a jury trial and his right not to give evidence against himself. Cases of criminal
contempt in which the sentence actually imposed does not exceed six months' imprisonment are exempt
from the requirements of a jury trial. Taylor v. Hayes, 418 U.S. 488, 495-96 94 S. Ct. 2697, 2702 (1974);
Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976). Here, the punishment imposed did not exceed six
months. Thus, relator had no right to a jury trial under the United States Constitution. Further, relator
waived any privilege against self-incrimination that he had under the Fifth Amendment of the United States
Constitution when his counsel put him on the stand to testify on direct examination in support of his
affirmative defenses and when, on cross-examination, neither he nor his attorney claimed the privilege.
See Ex parte Tankersly, 650 S.W.2d 550, 551 (Tex. App.--Fort Worth 1983, writ ref'd n.r.e.) (holding that
relator waived claim against self-incrimination when neither he nor his attorney asserted it, citing Roberts
v. United States, 445 U.S. 552, 560, 100 S. Ct. 1358, 1364 (1980)). Relator cites no cases supporting his
argument that in this case, the Texas Constitution affords him a right to a trial by jury and to a trial court
admonition of a right not to be forced to incriminate himself. We have been unable to find such cases, and
we decline to hold that the Texas Constitution affords such rights in this case. We overrule points of error
one and two.
B. Inability to Pay Child Support Payments As They Came Due
In response to Veglia's motion for contempt, relator pleaded the affirmative defense of inability to pay the
child support. In point of error three, relator asserts it was error and a denial of due process for the trial
court to incarcerate him after he had proven his affirmative defense and when Veglia could not prove
criminal contempt beyond a reasonable doubt.
A writ of habeas corpus is a collateral attack on the contempt order. Ex parte Townsley, 297 S.W.2d 111,
112 (Tex. 1956). We treat the contempt order as void if the evidence offered at the hearing conclusively
establishes relator's involuntary inability to perform. Id. For this Court to hold the punitive portion of the
contempt order invalid, relator must conclusively establish that he was unable to pay each child support
payment as it accrued. Ex parte Papageorgiou, 685 S.W.2d 776, 778 (Tex. App.--Houston [1st Dist.]
1985, orig. proceeding).
Here, the time periods during which the trial court found that relator did not make the child support
payments were July 1, 2005 through October 1, 2006 and April 1, 2008 through August 1, 2008. On direct
examination, relator testified that he had hurt himself at work and became disabled from July 2005 to the
date of the hearing (August 19, 2008); that during this period he had been unable to obtain employment;
that during this period he had tried to borrow money to pay the child support from "everybody," including
his parents, family friends, brother, and even his ex-wife's father; that he had no collateral to give a bank
for a loan; that he was not then paying his attorney; that he lived in a trailer for which a friend paid the
rent; that he did not own a car; that he had no medical coverage; and that he did not have the present
ability to pay the $20,000 child support arrearage and $8,000 attorney's fees.
On cross-examination, relator testified that he was not totally disabled; that he could answer a telephone;
that he had bought and re-sold maybe "one or so" cars; and that he probably had $100 in his pocket.
Veglia's counsel called Veglia as a rebuttal witness through whom a Brazoria County "Sheriff's Petition
and Notice of Seizure and Intended Forfeiture" was admitted into evidence. Veglia testified that it reflected
that in June 2006, relator was found to have $6,639 cash in his pocket and a Ruger .45 caliber pistol, a
Marlin .22 caliber firearm, an Ultra High Powered .22 caliber rifle, multiple prescription drugs, and six
baggies, believed to contain marijuana.
Relator's testimony that he was not totally disabled, that he could answer a phone, that he had bought
and re-sold one or more cars, as well as the evidence in the notice of seizure that in June 2006 he was in
possession of three firearms, and was engaged in drug trafficking, tended to discredit and to impeach his
testimony that during the period in question, he was unable to obtain employment. The trial court
reasonably could have concluded that relator could afford to make at least one of the $400 child support
payments required under the decree. We hold that, on the basis of the record before this court, relator
has not conclusively demonstrated his involuntary inability to comply with every one of his $400 child
support payments when they became due. We overrule point of error three.
C. Offsets Against Child Support
In point of error five, relator asserts that the trial court erred in denying him the opportunity to finish
testifying relative to the support that he provided to one of his children in 2005, when that child came to
live with relator on a full-time, permanent basis. Relator also asserts that it was error to deny him the
opportunity to testify to direct payments for child support that he had made to Veglia. Relator has waived
this point of error because he did not make an offer of proof regarding these matters. See Tex. R. Evid.
103(a)(2) ("Error may not be predicated upon a ruling which . . . excludes evidence unless . . . the
substance of the evidence was made known to the court by offer or was apparent from the context within
which the questions were asked.").
Civil, Coercive Confinement Assessment
As a civil, coercive measure, the trial court ordered that after relator had completed his punitive
confinement, he remain confined from day to day until he paid Veglia the $19,851.73, attorney's fees of
$7,735, and court costs. Based upon our February 3, 2009 order, relator was conditionally discharged
from jail on February 4, 2009, 11 days before his 180-day sentence of punitive confinement would have
ended on August 15, 2009. Because the civil, coercive portion of the trial court's contempt order will not
go into effect until relator completes his punitive confinement assessment, relator's assertion, in point of
error four, that he is presently unable to comply with it is premature. See Ex parte Robertson, 880 S.W.2d
803, 803-04 (Tex. App.--Houston [1st Dist.] 1994, orig. proceeding) ("A relator's current inability to pay
does not affect his obligation to serve the criminal contempt portion of his sentence.").
We thus do not reach point of error four.
Conclusion
We remand relator to the custody of the Sheriff of Harris County to serve the balance of his 180-day
punitive confinement assessment, without prejudice thereafter to his requesting habeas corpus relief from
the civil, coercive portion of the trial court's contempt order.
Tim Taft
Justice
Panel consists of Justices Taft, Bland, and Sharp.