Ronald B. Palmer v. Nakaysone Julie Palmer ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00098-CV
RONALD B. PALMER APPELLANT
V.
NAKAYSONE JULIE APPELLEE
PALMER
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In six issues, Appellant Ronald B. Palmer, pro se, appeals the trial court’s
amended order on petition for enforcement of spousal maintenance and its order
of income withholding for spousal maintenance entered in favor of Appellee
Nakaysone Julie Palmer. We dismiss the portion of the appeal pertaining to
1
See Tex. R. App. P. 47.4.
contempt for want of jurisdiction, reverse the trial court’s amended order on
petition for enforcement of spousal maintenance, vacate its order of income
withholding, and remand the case to the trial court for further proceedings.
II. Factual and Procedural Background
In July 2010, Julie petitioned for enforcement of spousal maintenance
based on the spousal maintenance provision in the parties’ August 31, 2007
agreed decree of divorce. In her petition, Julie alleged that Ronald was in
contempt of court for failing to pay spousal maintenance from January 1, 2009, to
July 1, 2010, totaling $9,500, and she asked the court for her attorney’s fees and
costs and for an income withholding order for payment of the arrearages.
At the conclusion of the hearing on Julie’s petition, the trial court found that
of the nineteen months during which Ronald was in arrears, Julie was only
entitled to seventeen months’ spousal maintenance, a total of $8,500, and that
Julie was entitled to $5,500 as the uncontroverted amount of her attorney’s fees,
as well as court costs. Ronald appealed the trial court’s November 2010 order
on the petition for enforcement and its income withholding order. The trial court
subsequently rescinded both orders, and we dismissed the appeal as moot. See
Palmer v. Palmer, No. 02-10-00424-CV, 2011 WL 167244, at *1 (Tex. App.—Fort
Worth Jan. 13, 2011, no pet.) (mem. op.).
On February 18, 2011, the trial court signed another order on Julie’s
petition, again assessing $8,500 as Ronald’s arrearages and $5,676 for Julie’s
attorney’s fees and court costs but did not provide for income withholding.
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Ronald filed a notice of appeal on March 14, 2011, and the next day, Julie filed a
motion to clarify, seeking the trial court’s ruling on her request for an income
withholding order.
The trial court issued its amended order on petition for enforcement of
spousal maintenance on March 31, 2011, again assessing $8,500 as Ronald’s
arrearages and $5,676 for Julie’s attorney’s fees and court costs, and finding
Ronald in contempt for seventeen violations of the spousal maintenance
provision of its August 2007 order. It also included the following in its order, “On
this date[,] the Court authorized the issuance of an Order of Income Withholding
for Spousal Maintenance. The amounts to be withheld from Respondent’s
disposable earnings are stated in that Order of Income Withholding for Spousal
Maintenance, which is wholly incorporated by reference into this order.”
[Emphasis added.]
The trial court issued its order on income withholding for spousal
maintenance on April 26, 2011. The order defined “arrearage” as “the total
amount of past-due spousal maintenance, which is $8,500.00, plus attorney’s
fees in the amount of $5,676.00.” [Emphasis added.] The trial court ordered
Ronald’s employer to withhold $500 per month from Ronald’s earnings “until the
arrearage and attorney’s fees have been paid in full”—a total amount of $14,176.
[Emphasis added.]
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III. Jurisdiction
A. Contempt
In his first, second, and third issues, Ronald complains that the trial court
lacked authority under the family code to enforce its spousal maintenance order
by contempt and argues that the trial court erred by convicting him of contempt
without notifying him of his rights and by holding a contempt hearing to enforce
what “can only be an agreement between the parties approved by the Court.”
A contempt judgment is reviewable only via a petition for writ of habeas
corpus (if the contemnor is confined) or a petition for writ of mandamus (if no
confinement is involved). Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex.
App.—Fort Worth 2001, pet. denied) (op. on reh’g) (citing In re Long, 984 S.W.2d
623, 625 (Tex. 1999) (op. on reh’g)). Decisions in contempt proceedings cannot
be reviewed on direct appeal because contempt orders are not appealable, even
when appealed along with a judgment that is appealable, as here. See id. (citing
Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex. App.—Houston [1st Dist.] 1994, writ
denied), cert. denied, 516 U.S. 868 (1995)); see also In re Office of Att’y Gen. of
Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, orig. proceeding)
(explaining why contempt judgments are not appealable and must be attacked by
petition for writ of habeas corpus or for writ of mandamus); cf. Ex parte Casey,
944 S.W.2d 18, 19, 21 (Tex. App.—Houston [14th Dist.] 1997, orig. proceeding)
(granting relator’s petition for writ of habeas corpus with regard to trial court’s
contempt order on failure to pay spousal maintenance). We cannot reach
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Ronald’s contempt-based complaints in this direct appeal, and we dismiss
Ronald’s first, second, and third issues for want of jurisdiction.
B. Plenary Power
In his sixth issue, Ronald complains that the trial court erred by issuing a
substantive change in its orders after its plenary power expired, complaining that
the April 26, 2011 income withholding order was signed “at least sixty-six days
following the [February 18, 2011] signing of the original Order for Enforcement of
Spousal Maintenance.”
When the trial court signed the February 18, 2011 order, it had plenary
power until March 21, 2011. See Tex. R. Civ. P. 329b(a), (d). But when Julie
filed her motion “for clarification or in the alternative, motion for new trial,” on
March 15, 2011, this further extended the trial court’s plenary power. See Tex.
R. Civ. P. 329b(a), (c), (e). The trial court’s March 31 amended order on petition
for enforcement of spousal maintenance superseded its February 18, 2011 order
and provided for the issuance of the subsequent April 26 order of income
withholding. See B. & M. Mach. Co. v. Avionic Enters., Inc., 566 S.W.2d 901,
902 (Tex. 1978) (stating that subsequent judgment made during the trial court’s
plenary power “in effect, vacated the first judgment”); Bahar v. Lyon Fin. Servs.,
Inc., 330 S.W.3d 379, 386 (Tex. App.—Austin 2010, pet. denied) (stating that
when the trial court signs an amended order, the original order becomes a nullity,
and “[a]s the original judgment ceases to have legal effect, only the amended
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judgment can support an appeal.”); see also Tex. R. App. P. 27.3. Because the
trial court acted within its plenary power, we overrule Ronald’s sixth issue.
IV. Arrearages
In Ronald’s fourth issue, he complains that the state constitution and family
code prohibit the trial court’s categorizing Julie’s attorney’s fees as arrearages for
purposes of wage garnishment. In his fifth issue, he argues that the income
withholding order resulted in a substantial change to the amended order on
petition for enforcement of spousal maintenance.
Article 16, section 28 of the state constitution provides that “[n]o current
wages for personal service shall ever be subject to garnishment, except for the
enforcement of court-ordered: (1) child support payments; or (2) spousal
maintenance.” Tex. Const. art. XVI, § 28. No provision in the family code allows
for attorney’s fees assessed in a proceeding to enforce unpaid spousal
maintenance to be included in an income withholding order. Compare Tex. Fam.
Code Ann. § 158.0051(a) (West 2008) (stating that in addition to an income
withholding order for child support, including arrearages, the court may render an
order “that income be withheld from the disposable earnings of the obligor to be
applied towards the satisfaction of any ordered attorney’s fees and costs
resulting from an action to enforce child support under this title”), with Act of May
22, 2001, 77th Leg., R.S., ch. 807, § 1, sec. 8.059(e), 2001 Tex. Gen. Laws
1575, 1578 (stating that a court may enforce an order for spousal maintenance
under this chapter by ordering garnishment of the obligor’s wages or by any other
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means available under this section), repealed by Act of May 18, 2011, 82nd Leg.,
R.S., ch. 486, 2011 Tex. Sess. Law. Serv. 1239, 1242, and Tex. Fam. Code Ann.
§ 8.058 (West 2006) (“A spousal maintenance payment not timely made
constitutes an arrearage.”), and id. § 8.102(a) (West 2006) (stating that the court
may order that, in addition to income withheld for current spousal maintenance,
income be withheld from the disposable earnings of the obligor to be applied
toward the liquidation of any arrearages). And we have found no case law
otherwise permitting the trial court to incorporate attorney’s fees as arrearages in
an income withholding order for spousal maintenance. Cf. Tamez v. Tamez, 822
S.W.2d 688, 691 (Tex. App.—Corpus Christi 1991, writ denied) (“Attorney’s fees
necessarily incurred for the collection of child support payments have long been
held to be an essential part of the enforcement process.”).
Because the trial court erred by including Julie’s attorney’s fees as
arrearages in the income withholding order, and because the trial court
incorporated the income withholding order by reference into its amended order
on petition for enforcement of spousal maintenance, we sustain Ronald’s fourth
and fifth issues.2
2
Julie filed a motion seeking an assessment of her attorney’s fees and
costs involved in this appeal against Ronald, arguing that his appeal is frivolous.
Because we sustained Ronald’s fourth and fifth issues, we deny Julie’s motion.
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V. Conclusion
We dismiss the portion of the appeal pertaining to Ronald’s contempt
complaints for want of jurisdiction. And having overruled Ronald’s sixth issue
and sustained Ronald’s fourth and fifth issues, we reverse the trial court’s
amended order on petition for enforcement of spousal maintenance, vacate the
income withholding order, and remand this case to the trial court for further
proceedings.
PER CURIAM
PANEL: MCCOY, GARDNER, and MEIER, JJ.
DELIVERED: April 5, 2012
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