*1 379 Berry Et Al Al Leon Moten Butler Et June 1961
No. A-8428. Decided 917) (347 2d Series S. W.
PER CURIAM. rehearing
Since no motion for filed in the Court Appeals required by 469(c), Civil Rule Texas of Civil Rules Procedure, respondent’s petitioners’ appli- motion to dismiss jurisdiction granted, cation for application want of and the for writ of error is dismissed. See State Board of Morticians Cortez, v. Frank R. 12. Preston,
Ex Parte William C. Jr.
No. A-8372. Decided June (347 938) S. 2d Series W. *2 Hyder, Worth,
Elton M. of Fort for relator. Wade, Callaway, Marshall, Worth, Davis & of Fort respondents. opinion
MR. JUSTICE CULVER delivered the of the Court. Relator, Preston, Jr., applies William C. here for a writ of corpus habeas judge from an order of confinement entered County, of the 153rd District Court of Tarrant Texas. The community wife filed for divorce and of relator’s division property. disposing temporary restraining Preston from A any community issued, prior assets was but to the service alleged belong this order he had real estate sold certain community $21,705.58. the sum injunction temporary After notice and was due day March, 1961, by issued the court the terms on the 2nd any disposing of which Preston restrained from in manner any him assets and further ordered registry $21,000.00, proceeds into the from of the court the 9, 1961, property, sale of the March on or before having found that Preston had $21,000.00, testimony notwithstanding his that he had flushed this entire sum in the form of a commode and bills down $100.00 system City into the sewer of Fort Worth. *3 day ordered, appeared
On 9th of March before Preston having- any produce the court and failed to or part thereof, following the court entered the order:
“IT IS THEREFORE ORDERED court that defendant, Preston, Jr., hereby said William C. be and he is contempt held in of court relation matters with to the above, referred to but consideration determination of and what action the court shall take in connection con- with said tempt hereby hearing upon is deferred until of this case its merits, April 3, which is set 1961.” day April, 1961, judgment theOn 17th was entered granting dividing Mrs. Preston a divorce and property, awarding to Mrs. Preston certain household and personal property, including an automobile and “the sum of cash, hereby which court ordered the defendant produce as hereinafter set forth.” There was awarded to personal property “all Preston now in except his plaintiff.” that which hereinabove is awarded to the provided day As his order of the 9th of March proceeded punishment then to a determination of the to be upon contempt inflicted failing Preston for his of court in money registry pay over the into the of the court. This order incorporated in the divorce decree reads as follows: ORDERED,
“IT IS FURTHER the defendant be hereby County and he is ordered committed the Tarrant County, Texas, comply failure to Tarrant
Jail of pro- entered that he this Court heretofore with the order of on or before this Court before duce the sum of A.M., 9th, 1961, all as set forth this at 10:00 March signed and this entered Court’s 28th, held confined and to be there on March period Court days twenty-four each, hours full for a of three until he have held and confined shall and thereafter to be Court, Clerk of this for the produced to the and delivered $10,000.00, plaintiff, the said sum of use and benefit contempt of purged himself of whereupon he shall County, any or constable Tarrant this Court. Sheriff person Texas, hereby to seize the ordered and directed is Preston, Jr., hold confine and to so the said William C. jail time hereinabove set out.” periods him in for the said original directing position that Preston takes registry $21,000.00 into the of the court is void him to conceding authority that, that the court has while for the reason action, pending final he does not have impound property money. authority property in the form of He makes if the all other kinds of the distinction between theory. for that think the though are offered We no authorities Dyer Dyer, note that merit. We contention is without suit, judge the trial a divorce App., 87 Civ . employer husband’s to retain to have ordered the properly weekly salary subject portion possession a of his in its the court. orders further *4 finding that the him contends further Preston ordering to be confined until he have him shall
in and $10,000.00 to the Clerk for the use of and the sum delivered First, only for two reasons: that the is void of his wife benefit pay $21,000.00 for the failure to over the assessed punishment days jail three in that the registry- the court is and of the to pay served; that the order to over to the days have been three separate independent from $10,000.00 is sum Clerk $21,000.00; secondly, pay over that to original order constitutes that cannot to the wife a debt $10,000.00 award proceedings by contempt for this would constitute collected 1, 18 of the in violation of Art. Texas § imprisonment debt disagree with contentions. both these We Constitution. originally ordering pay only Preston to over purpose The the court $21,000.00 Clerk was so would
383 community and control over the in order carry duty parties. his to make a division between The o.ut assessing punishment final deferred until the having purpose made the division no would be in com- served pelling pay $21,000.00 except part Preston to over the community awarded to her It Mrs. Preston as share. would hijm jail produced have been idle to remand until he entire pay $11,000.00. and then back to him The order attempt cannot punish be construed as an him for two complain different offenses. The relator cannot because he punished delivering was than he ordered to less deliver originally. award wife in the division of the community property ordinary owing is debt sense in contemplation the husband of the constitutional inhibition. possession $21,000.00
He has property, wife, of which has been awarded and which Preston has been ordered to not to her but into the hands court. Stat., provides:
Article Ann. Vernon’s Civ. pronouncing “The court a decree of divorce shall also decree and order a division of the parties estate of the way just such a as the right, court shall deem having regard rights due party of each children, and their any. Nothing if herein shall compel be construed to either party to divest himself or herself of the title to real estate.” possesses The district court powers broad under this making adjustment statute in property rights between parties, only granted. if but a divorce Milligan Milligan, v. App., 127; Tex. Civ. 282 Hedtke, Hedtke S.W. v. 112 Tex. 21; parte Scott, S.W. 626; 126 S.W. 2d Harkness, Harkness v. App., 399; Tex. Civ. 1 S.W. 2d Carter Carter, App., 466; Civ. Tex. Tipps, S.W. 2d Christie v. App., pertinent Civ. 2d 142. inquire It is how bring
the court can order about a division subjected estate unless that estate be first to the court’s control. say who, by given
To a husband right law is of control *5 disposition community estate, and can reduce that estate compelled to cash and not be to money account for in a that community property division of the contrary would run to the purpose intent and of the statute. Preston is not a debtor of
384 holding constructively wife but rather he a trustee is as the share is particularly far assets and so There
concerned that
her
the court.
has been awarded to
think,
question,
right
is no
the court to hold
we
about the
obey
refusing
willfully
to
a trustee in
for
of court
pay
rightfully
in his
to the one
over funds held
hands
434,
Tegtmeyer
Tegtmeyer,
App.
entitled
v.
292 Ill.
thereto.
657,
169,
303;
App.
11
28
appealed
N.E. 2d
306
N.E.
later
Ill.
321;
Bathrick,
30,
v.
Caswell v.
169 A.
Potter
Emerson-
R.I.
684;
841,
Corp.,
Com. ex rel
App.
Div.
296 N.Y.S.
Steuben
63,
Heston,
Contempt pro
Di Giacomo
292 Pa.
The courts to rest of this state have since may imprisoned contention and father not that a husband pay alimony yet support failure child these matters or closely ordinary seem much related definition more debt than is an In the order of division. matter alimony person pay support or child the court orders money belonging over to him. holding parte Davis,
In 111 S.W. support pendente child wife’s claim for herself provision pro- lite was not a within the debt constitutional debt, hibiting imprisonment the court said: * “* * prohibit not state does The this Constitution imprisonment except of a man for the collection of debt, being proceeding case, for the enforce- this duty, legal, ment of a natural and from Davis to his due subject jurisdic- children, wife all of whom were court, prohibition come tion of does not within the Constitution.” pay
In our case directed Preston that he the order is over rightfully belongs not in his to him but purport to his wife. divorce does to decree to his wife. makes the that Preston indebted It division of him to and directs over to the Clerk that the court awards portion her. *6 Britton, 85, 92 2d while parte
In Ex S.W. contempt discharged commit the relator from was ordered jurisdic ment, principally ground that the court had no on the nevertheless, suit, him, being party tion over he not a to the the court does announce a rule of law well established pertinent to facts here. jurisdiction having rule is established that a court
“The undoubtedly litigation parties and the res of authority by property to order the surrender of held any person party defendant or other who is to the suit.” a The court also in connection with observes the constitutional provision person imprisoned that “no shall ever be for debt” that, not, course, application rule does to criminal “this proceedings many matters, nor to of which enforcement does meaning not come within the well-known words ‘im- prisoned for debt’.” recently McElreath,
In our decided case of McElreath v. recognized right an we Oklahoma District Court a divorce decree to the defendant-hus- convey band to Texas lands in and to enforce decree contempt proceedings. Latham, parte Rep. 208,
In Ex 47 Tex. Cr. 82 S.W. contempt pay the relator was for his refusal over money co.urt-appointed trustee awarded to the wife in the final He decree divorce. was ordered confined in the county jail purge by complying until he himself should with order of court. The relator contended that this was a debt imprison and the court authorized him for debt. This contention was denied. court held it that since was com- petent partition for the court to make require
then the court was authorized to the relator to turn over community property conceded then to be in his hands for distribution, purpose and further the court was authorized by a contempt proceeding. its decree enforce distinguish Relator seeks parte says Latham. He in that case there entirely different set of existed circumstances as follows: money “1. Defendant admitted he had on hand. appointed Court a
“2. The Trustee who a made bond for $2,000,00 money who demanded the of the de- fendant. money, although admitting had the defendant, he
“3. The legal had the pay Trustee who it to the refused authority to collect it. his reason of
“4. The was held defendant actually failure *7 authority. legally constituted money adjudication that the “5. There a definite case, the belonged plaintiff in the and that it.” was entitled to Trustee analysis only that From own it distinction relator’s seems parte admitted in Ex Latham the defendant can be found is that Pres- possession in this case that he in his while had con- destroyed money. not he We are ton averred that had inability perform question cerned here with the of Preston’s money in as court has a fact that he does found as have story. sewer-flushing disbelieved the by parte principally upon is Ex case relied the relator Prickett, 302, that 320 In case S.W. 2d 1. applied for the enforcement relator’s divorced wife to the court right end of her certain and to that decreed stock shares 308, Pro- provisions Rule of Civil invoked the Texas Rules imprisonment by The court that enforcement cedure. applied only especial property had an under that rule such plaintiff corporation a and that of stock in value shares open especial value, simply being property on the had no traded money. they bring worth what in terms of market and would wrong proceeded The divorced wife in theory. case under judg- ordinary simply has an Rule reference to say purports judgment It been ment. that where has against something may for not rendered any individual value, particular or oth- market but sentimental reasons erwise, particular plaintiff prop- does have some value to the erty may extraordinary recovered means. be authority jurisdictions proposition There other for the restoration, conveyance providing a decree or divi- may by contempt divorce cases enforced sion performance proceedings the decree been entered and when has duly C.J.S., Divorce, been directed and demanded. 27B 300(3). § pronouncement Decker,
A clear found in Decker is to be v. (Wash.): 326 P. 2d 322 prohibition against
“We im- believe constitutional prisonment for debt relates run-of-the-mill debtor-creditor relationships arising, extent, claim, to some out of tort but principally, basically contractually out of matters in nature. merely In such cases the of the court is a declara- owing tion of an pay. amount and is an order to Prob- alimony, lems of involving support pay- domestic relations ments, property settlements, together with court orders therewith, normally connection do not fall into the debtor- category.” creditor Hoppe Hoppe,
In 181 Kan. 312 P. 2d the trial court was authority held to have compel contempt proceed- ing conveyance of an interest real estate because the jurisdiction court had parties subject over the and the matter. To the same effect Foreman, is Foreman v. 111 Utah P. *8 2d 144. Oaks,
In Oaks v. plain- 207 Ark. 183 S.W. 2d the tiff-wife in a decree of divorce was awarded half of the of value certain Savings United States purchased Bonds which has been profits with the operated by from a business the husband and wife. The possession bonds were last seen of the husband notwithstanding possession, his denial of enforcement of the decree properly was held by contempt proceed- effected be ings. Staton,
In Staton v. 2d N.Y.S. the of decree divorce ordered the husband to make the wife and child beneficiaries of policy. life complied insurance He with the order but some years later beneficiary. named another as He was held in con- tempt of purge by court and canceling could himself change. the
Additionally complains Preston of the enforcement of this order adjudication for the reason that of the divorce and division of the property has not become final be says cause he appeal. the case is on think We that fact is not significant. It is be noted that the court’s order directed the payment of the not to Mrs. Preston but to the Clerk. She hardly possession would be entitled to its until the becomes final. The fact divorce the case appeal is on any showing without supersedeas would, of a bond if anything, pro rights imperative of Mrs. Preston
make it that the more 225, 87 parte Klugsberg, 126 Tex. Ex tected this manner. Wrather, 47, 161 2d 774. 465; parte S.W. in con- holding the relator hold therefore order We custody remanding of the sheriff tempt him to court purges as directed is void. he himself .until SMITH, joined dis- MR. JUSTICE JUSTICE GRIFFIN senting. respectfully
I dissent. injunction, 2, 1961, hearing temporary March on disposing any injunction temporary restraining relator from granted prayed As to the of the for. community prop- alleged sale proceeds of the erty, all the evidence” found “after full by him, not, flush two-hundred-ten did $100 relator as testified proceeds of sale and he had from the bills—which secured at the toilet Ft. in his after said sale —down had produce said The court further relator Worth Club. sum ordered 9, 1961, a.m. on March at 10:00 or before court, registry pending final pay the into the same hearing. 9, 1961, hearing
At the found that relator March the court produce any part thereof, or to failed or pur- registry court; into had same posely and that relator openly violated the of the court. The court then said: “It is therefore defend- ordered the Court that said *9 hereby Preston, Jr., in he con- ant William be and is C. above, tempt of to the to Court with relation matters referred but of action the Court consideration determination what contempt hereby shall take in connection with said is deferred hearing upon hearing of its merits is set until this case which 3, (Emphasis added.) April 1961.” for April 3, 1961, the was and the court On had on 13, 1961, gave judgment divorce, April prop- for the divided erty parties. the The between wife was awarded “The sum of cash, hereby $10,000.00 in the which Court orders the defendant (relator herein) produce as hereinafter to set forth.” With re- gard contempt and, the court held in relator contempt, for punishment the ordered relator for in the Tarrant produce $21,000.00 be confined to the failure days twenty-four County jail period full of hours a of three for part relator has served this each. The shows that the record the judgment. However, judgment contempt this contained until he provision that held and confined further relator “be produced to the Clerk this [the shall have and delivered said Court, plaintiff, of the for the and benefit trial] use whereupon $10,000.00, purged he have himself sum shall provision contempt this of this It was under last Court.” day kept expiration after the three relator was confined provision It this seeks relief. term. is from latter relator agree jurisdic- I that the trial court a divorce case has the community power tion and to divide the assets between the require parties spouse bring to and to either such registry court; judgment, or if assets into the domestic require proper conveyance of transfer to instruments comply executed. Failure to with the order can be court’s by punished contempt. However, case, in this the trial court as- days penalty County sessed a jail three confinement Tarrant obey bring the failure of relator his orders to $21,000.00 into court. separate is a and distinct item from the was so treated the trial court. An additional
punishment judge trial directed in an effort $10,000.00 paid having to the wife of relator. The trial court separate items, seen fit to I do two not how we see can set say only such aside action and it $21,000.00. one item of get I can parte Prickett, around the statement order, contempt S.W. 2d that: “The may all practical purposes, merely be taken as one of en- forcement of distinguished the decreed division as from punishment.” In the Prickett case the order was for de- (or fendant husband deliver his divorced wife her of) the value certain representing forty-odd stock certificates Refining Company stock, shares of Humble Oil & which the di- vorce decree had awarded her division of property. 308, T.R.C.P.,
Rule application no whatever to case say at bar. To this court would hold a discharge relator, just
void and because Prickett on relied *10 Rule custody 308—when we would have remanded Prickett sought wife order deliver
had he relief from the realistic. Shares logical or shares of Humble stock —is delivery specific subject order more stock would be much money. a debt for a sum of than
The item constitutes a debt which the trial .adjudged against the relator in favor of his wife parties. division of the regarding in- attempt collect this paid. debtedness the confinement of relator until same is provides Article person Section Texas Constitution “No imprisoned
shall never be for debt.” no power The trial court had to confine relator until he has paid awarded wife the divorce decree. enlarge
I discharge would the relator and him from the con- tempt judgment. Al,
Johnnie Wilson Et of the Foster Trustees 4 Common District E. School No. R. Thompson Et Al* July 3, No. A-8472. Decided (348 17) S. Series. W. d Appeals opinion 2 244. Civil see 348 S.W. of Court of
*For