Contempt of Court and Trial by Jury

A person accused of criminal contempt of court has the right to a trial by jury if the potential punishment to be assessed exceeds $500 and more than six months in jail for each act of contempt. In In re Newby, No. 02-12-00145-CV (Tex. App. - Fort Worth June 6, 2012, orig. proceeding), the Second Court of Appeals in Fort Worth reminds us that imposing consecutive sentences invokes the right to trial by jury if the consecutive sentences exceed six months in jail.

In Newby, a divorced father failed to pay monthly child support over a period of sixteen months. The ex-wife filed a petition to have the father held in criminal contempt of court. She requested the court to hold the father in contempt of court for each month the father had failed to pay. As punishment, she requested that the father be fined $500 and sentenced to jail for six months for each month the father had failed to pay.

The ex-wife requested the trial court to impose consecutive sentences on the father. In other words, for the first violation the father would serve six months, for the second he would serve an additional six months, and so forth.

Because the total sentence requested exceeded six months, the father was entitled to trial by jury. A trial court is supposed to inform a defendant when he has the right to trial by jury. The defendant can then either request trial by jury or waive his right to trial by jury.

The trial court did not inform the father of his right to trial by jury until mid-way through the trial. Informing a person of the right to trial by jury after the trial begins is too late.

The trial court sentenced the father to two years in jail. The father filed a petition for writ of habeas corpus that he be released because the sentence exceeded six months and he had not been afforded the choice whether to have a trial by jury. The Second Court of Appeals agreed with the father and struck the part of the contempt order sentencing the father to jail for criminal contempt of court.

Careful Drafting is Critical

A child support order must contain “order” language. The Fourteenth District Court of Appeals reversed and remanded a child support enforcement case that had been dismissed for lack of “order” language in a divorce decree. Had the the decree been carefully drafted, no appeal would have been necessary.

The divorce decree ordered the obligor to pay child support of $240 per month until the child no longer attended a day care center. Upon that event, child support would increase to $800 per month.

The original child support obligation included the familiar words, “IT IS ORDERED AND DECREED that [obligor] shall pay to [obligee].” But upon the child leaving the day care center, the divorce decree recited only, “[obligor] is obligated to pay and shall pay to [obligee]” the $800 per month. There was no “order” language.

The obligor's attorney persuaded the trial court that there was no child support order in effect after the child left the day care center because of the lack of “order” language. The trial court agreed and even sanctioned the obligee for suing to collect the past-due child support.

The Fourteenth District disagreed with the trial court: From a fair reading of all the divorce decree's provisions, it was clear that the trial court had ordered the obligor to make child support payments of $800 per month once the child no longer attended the day care center. “The use of the term 'shall pay' is definite and satisfies the requirement of an 'order' to pay child support.” Ochsner v. Ochsner, Nos. 14-11-00395-CV, 14-11-00412-CV (Tex. App. - Houston [14th Dist.] May 22, 2012, n.p.h.).

A Primer on Contempt of Court

Justice Rose Vela of the Corpus Christi Court of Appeals has authored a Memorandum Opinion in which she thoroughly and lucidly discusses contempt of court. The opinion is linked below, but here are some of the statements of law it contains:

  • A judgment of contempt may be either civil or criminal.
  • The purpose of civil contempt is remedial and coercive. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey an order of the court when obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor "carries the keys of (the) prison in (his) own pocket." When a relator has committed civil contempt, he may procure his release by complying with the provisions of the court's order.
  • Criminal contempt, by contrast, is punitive in nature in that the sentence is not conditioned upon a promise of future performance; rather, the contemnor is being punished for a completed act that affronted the dignity and authority of the court.
  • Texas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability, but refuses, to perform the conditions for release. Stated otherwise, a person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Similarly, the involuntary inability to comply with an order is a valid defense to criminal contempt.
  • The relator bears the burden of proving his inability to comply. We do not weigh the evidence, but determine only if there is no evidence to legitimize the relator's confinement. Thus, the issue in habeas corpus review is whether the relator has conclusively established his inability to comply.

In this case, the relator (the person held in contempt) was imprisoned for failure to pay child support. To avoid a finding of contempt, a child support obligor who fails to pay must prove that he or she:

(1) lacked the ability to provide support 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 funds needed; and

(4) knew of no source from which the money could have been borrowed or legally obtained.

Tex. Fam. Code Ann. § 157.008(c). All four elements must be proved.

Because the relator did not prove these elements in the trial court, the Corpus Christi Court of Appeals denied his petition for writ of habeas corpus and left undisturbed his 180-day jail sentence. Ex parte Coronado, No. 13-09-00149-CV (Tex. App. - Corpus Christi Apr. 9, 2009).

The Case of the Omitted Sentence

 A recent Texas Supreme Court decision, In re: Coppock, No. 08-0093 (Tex. Feb. 13, 2009), begins:

To be enforceable by contempt, a judgment must clearly order or command a party to perform the obligations imposed and the terms for compliance must be clear and unequivocal. Because the judgment challenged in this proceeding lacks the necessary clarity, we grant the petition for writ of habeas corpus and set aside the order of contempt as void.

So what part of the judgment (a divorce decree) was unclear?  The trial court found that a permanent injunction should be granted to prohibit the parties from taking a list of actions, including communicating with each other "in a coarse or offensive manner."  The court ruled that the injunction should be effective immediately.  The parties even agreed that the divorce decree would be enforceable as a contract.  Why, then, did the Texas Supreme Court grant the former wife's petition for relief after the trial court held her in contempt for repeatedly communicating with the former husband "in a coarse or offensive manner?"

One might suspect that what amounts to "coarse" or "offensive" is so inherently subjective that no one really knows what conduct is forbidden.  One might also guess that the Texas Supreme Court threw out the contempt judgment because the First Amendment does not prohibit "coarse or offensive" conduct.  Although the Court discussed both issues, it decided the case on a different ground altogether:  the lack of an injunction in the divorce decree. 

A court order must actually be an order.  A court cannot dance around a subject but must specifically and expressly order a person to do or not to do something for the court's order to be enforceable by contempt.  In this case, standard, form language like this was left out of the divorce decree: 

IT IS ORDERED that the parties, their agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise are permanently enjoined from:

Had the list of forbidden actions been preceded by a paragraph like this one, then the Court would have reached one or more of the issues it passed over.  

Incarceration Not Allowed for Alimony Default

Article I, § 18 of the Texas Constitution is unequivocal:  "No person shall ever be imprisoned for debt."  However, a person can be imprisoned for failure to pay child support because child support is not considered a "debt" under the law.  In In re: Green, 221 S.W.3d 645 (Tex. 2007) (orig. proceeding) (per curiam), the Texas Supreme Court was faced with the issue whether contractual alimony is considered a "debt."

The Court previously had held that alimony is a debt and so could not be enforced by imprisonment upon a finding of contempt.  Ex parte Hall, 854 S.W.2d 656 (Tex. 1993).  But after the Court decided Hall, the legislature passed the maintenance statute, which permits a court to order spousal maintenance for up to three years if the receiving spouse is disabled, cares for a disabled child, or lacks sufficient earning ability to care for himself or herself.

The question for the Court became whether the obligation to pay any "maintenance" could be enforced by contempt resulting in imprisonment, or whether imprisonment could be a remedy only when a court ordered maintenance under the maintenance statute. 

The Texas Supreme Court opted for the latter construction.  Contractual alimony, even if ordered by a court, cannot be enforced by contempt resulting in imprisonment if not paid.  But maintenance, if ordered in compliance with the maintenance statute, can be enforced by contempt resulting in imprisonment.