Hon. Judy Warne, Houston Divorce Court Judge

Year judge took office: 2005 (appointed by Governor Rick Perry Nov. 15, 2005)

Find contact info for Judge Judy L. Warne's court at --> Official 257 th District Court web page

Note: This bench was previously held by Judge Linda Motheral

Court Phone: 713-755-6950
Associate Judge: Deborah Patterson 713-755-6950
Previous Associate Judge Hon. David Farr has been promoted to presiding judge of the 312th
Clerk: Jose Garcia-Guerrero 713-755-6950
Coordinator: Melissa Parker 713-755-5346
Bailiff: Troy Byers 713-755-6950
Court Reporter: Eunice Tillman 713-755-4671

APPELLATE CASE LAW - APPEALS FROM JUDGE JUDY'S COURT

Lumpkin v. DFPS (Tex.App.- Houston [1st Dist.] June 12, 2008)(Higley)
(termination of parental rights, drugs, frivolous appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00560-CV    01-07-00561-CV      01-07-00706-CV
Derrick Lumpkin, Sr. and Geneva Herrera v. Department of Family and Protective Services
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne

In re Jeffers (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(per curiam denial)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
Before Chief Justice Radack, Justices Taft and Jennings
01-07-01066-CV In re Meredith Jeffers
Appeal from 257th District Court of Harris County (Judge Judy Warne)

Kataria v. Kataria (Tex.App.- Houston [14th Dist.] Feb. 1, 2007)(per curiam dismissal)
DISMISSED: Per Curiam [nonpayment of fees]
(Before Justices Brock Yates, Anderson and Hudson)
14-06-01076-CV        Amit Kataria v. Sangeeta Kataria
Appeal from 257th District Court of Harris County

Family Court Judge Warne's Contempt Order Found Void

In re: Stenson , No. 14-06-00094-CV (Tex.App. - Houston [14th Dist.] May 11, 2006)(Anderson)
[family law, child support enforcement, habeas corpus relief granted, ambiguous order of contempt is
void, court did not address whether attorneys fees enforceable by contempt, release ordered]
MOTION OR WRIT GRANTED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost
14-06-00094-CV In Re: Dwayne Thomas Stenson
Appeal from 257th District Court of Harris County (Judge Judy L. Warne)
Holding and decision: Because we conclude that the contempt order is void, we grant relator’s habeas
corpus petition, order relator released from the bond set by this Court on February 8, 2006, and
order relator discharged from custody. ... The section of the trial court’s contempt order covering
Katherine’s enforcement motion is void because it is based on an unenforceable decree and the term
of relator’s incarceration is unclear as contained in the order. Accordingly, we grant relator’s petition
for writ of habeas corpus as discussed above. We do not address relator’s issue concerning
Brupbacher’s enforcement motion. We further order relator released from the bond set by this Court
on February 8, 2006, and order relator discharged from custody.

Petition for Writ of Habeas Corpus Granted and Memorandum Opinion filed May 11, 2006.

In The

Fourteenth Court of Appeals
____________

NO. 14-06-00094-CV
____________

IN RE DWAYNE THOMAS STENSON, Relator

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

M E M O R A N D U M O P I N I O N

Relator Dwayne Thomas Stenson challenges the trial court=s order of contempt and commitment
dated January 30, 2006, claiming the order is void because it imposes an ambiguous sentence, fails
to comply with the Family Code, and punishes him pursuant to a nonexistent decree. On February 8,
2006, we ordered relator released, subject to bond, pending a final determination of this cause.
Because we conclude that the contempt order is void, we grant relator=s habeas corpus petition,
order relator released from the bond set by this Court on February 8, 2006, and order relator
discharged from custody.

I. Background

Several decrees were signed in the underlying case. An amended divorce decree was entered on
February 1, 2005 (the AFebruary decree@), in which relator was ordered to pay $500 per month in
child support to real party Katherine Elaine Stenson, beginning with a payment on June 4, 2004, and
a like payment on the fourth of every month thereafter. Relator=s child support obligations as stated
in the February decree were unchanged from the final divorce decree previously entered in the case.
On August 12, 2005, a second amended divorce decree was signed (the AAugust decree@), and
relator was again ordered to pay $500 a month in child support beginning on June 4, 2004 and
continuing on the fourth day of each month thereafter. In the August decree, relator was also
ordered to pay $3500 in attorney=s fees to the child=s court-appointed attorney, Allyson N.
Brupbacher.

Katherine subsequently filed a motion to enforce the child support orders contained in all decrees
entered in the case. Brupbacher also filed a motion for enforcement of the order to pay her fees.
Separate hearings were held on the motions, but findings and conclusions for each motion were
contained in the trial court=s January 30, 2006 contempt and commitment order, in which relator was
sentenced to one hundred days= confinement in the Harris County jail. Relator then filed his habeas
corpus petition in this Court, challenging the order on six grounds.

II. Standard of Review

An original habeas corpus proceeding is a collateral attack on a contempt judgment. In re Broussard,
112 S.W.3d 827, 831 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding) (citing Ex parte
Rohleder, 424 S.W.2d 891, 892 (Tex. 1967)). The relator is entitled to discharge if the order
underlying the contempt is void, or if the contempt order or commitment order is void. Ex parte
Tanner, 904 S.W.2d 202, 203 (Tex. App.CHouston [14th Dist.] 1995, orig. proceeding). An order is
void when either it is beyond the court=s power or because the relator has not been afforded due
process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005); Ex parte Barlow, 899 S.W.2d 791, 794 (Tex.
App.CHouston [14th Dist.] 1995, orig. proceeding).

III. Discussion

The January 30 contempt order contains separate sections regarding Katherine=s motion for
enforcement and Brupbacher=s motion. Five of the six issues presented in relator=s petition
challenge that portion of the order concerning Katherine=s motion. We sustain three of those
issues. We discuss relator=s only issue concerning Brupbacher=s motion in the final section of this
opinion.

A.        Katherine=s Motion for Enforcement

1. Ambiguous Sentence

In the contempt order, relator was charged with separate counts of contempt for failing to make ten
child support payments as follows: February 4, 2005, March 4, 2005, and May 4, 2005 through
December 4, 2005. Relator was sentenced to ten days= confinement in the Harris County jail for
each violation, for a total of one hundred days= confinement. Relator argues that although the
contempt order states his confinement is for one hundred days, the dates of confinement listed equal
only ninety days and therefore, the order imposes an ambiguous sentence and is void.

Before a person can be imprisoned for violating a court=s previous order, due process requires,
among other things, that the court=s commitment order clearly specify the punishment imposed. Ex
parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997); see also Tex. Fam. Code Ann. ' 157.166(b)
(Vernon 2002). A term of incarceration should not rest upon implication or conjecture. In re Watson,
108 S.W.3d 531, 533 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding).

Here, the order contains the following provision:

Based upon the findings above . . . Dwayne Thomas Stenson is in CONTEMPT OF THIS COURT for
each separate violation . . . and it is ORDERED that punishment for each separate violation is
assessed, for each violation [sic], at confinement in the county jail of Harris County, Texas, for a
period of 10 days for a total of 100 days to begin on January 30, 2006 and continuing until April 29,
2006.

Counting one hundred days from January 30, 2006, relator=s sentence would end on May 9, 2006,
not April 29 as stated in the order; therefore, it is unclear from the order when relator=s term of
incarceration ends. See id.

Were this the only problem with the contempt order, we could reform it to reflect the correct date. See
In re Zapata, 129 S.W.3d 775, 781 (Tex. App.CFort Worth 2004, orig. proceeding) (reforming portion
of contempt order); In re Broussard, 112 S.W.3d at 831 (citing Ex parte Roosth, 881 S.W.2d at 301);
In re Watson, 108 S.W.3d at 533 (noting that void portions of a contempt order Awhile valid in all
other respects,@ can be struck and relief is otherwise denied); see generally Ex parte Guetersloh,
935 S.W.2d 110, 111B12 (Tex. 1996) (orig. proceeding). However, as discussed below, we conclude
the order is void on other grounds as well. See In re Broussard, 112 S.W.3d at 831B32 (declining to
reform contempt order due to finding it was void on other grounds).

2. Superseded Decree and Prior Acts

Relator also argues the court=s contempt order is void because it is based, in part, on the February
decree, which was expressly superseded by the August decree. He argues that because six of the
ten violations listed in the contempt order occurred under the February decree, he is being punished
for acts occurring prior to the date the final order was signed.

The contempt order contains the following findings:

2(a) on February 1, 2005, Respondent was ordered to make periodic payments of child support, in
the amount of $500 to be paid on the 4th day of each month beginning on June 4, 2004 and a like
payment being due and payable on each 4th day of the month thereafter with said ORDER being the
Amended Decree of Divorce;

2(b) on August 12, 2005, Respondent was ordered to make periodic payments of child support in the
amount of $500 to be paid on the 4th day of each month beginning on June 4, 2004 and a like
payment being due and payable on each 4th day of the month thereafter with said ORDER being the
SECOND AMENDED DECREE OF DIVORCE

The August decree states that it Asupercedes the AMENDED DECREE OF DIVORCE signed on
February 1, 2005.@ Likewise, the February decree expressly superseded the previously entered
final divorce decree. As relator claims, of the ten violations on which his contempt sentence is
based, six occurred prior to August 12, 2005, the date the August decree was signed.

This Court previously has determined that a contempt order based on a superseded decree is void.
Ex parte Smith, No. 14-96-00195-CV, 1996 WL 283063, at *2, (Tex. App.CHouston [14th Dist.] May
30, 1996, orig. proceeding); see also Ex parte Deckert, 559 S.W.2d 847, 849 (Tex. Civ. App.
CHouston [1st Dist.] 1977, orig. proceeding) (concluding that commitment order was void because it
referred to invalid order). We reasoned in Smith that the superseded decree was no longer of any
force and effect once the later decree was signed; at that point, the superseded decree was no
longer the enforceable order in the case. Ex parte Smith, 1996 WL 283063, at *2. We concluded
that, by referring to a decree which was no longer in effect, the court=s contempt order did not strictly
comply with the requirements of section 157.166(b) of the Family Code.[1] Id.

The reasoning in Smith applies to this case. Once the trial court signed the August decreeBBon
August 12, 2005BBthe February decree was superseded and no longer in effect. See id.; see also
Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex. App.CAmarillo 1993, writ denied) (AOnce a judgment
has been vacated and reformed, it is superseded; the original judgment is effectively >dead,= . . . .
@). The August decree was the enforceable decree in the case at the time of the hearing on
Katherine=s motion,[2] yet the court=s contempt order holds relator in contempt for failing to make
payments under the superseded February decree.[3] And, as relator contends, he cannot be
incarcerated for failing to pay sums owed prior to the date of an enforceable decree. See Ex parte
Guetersloh, 935 S.W.2d 110, 111 (Tex. 1996) (orig. proceeding) (stating that an alleged contemnor
cannot be held in constructive contempt for actions taken before the court=s order is signed).
Because the contempt order in this case is based in large part on acts occurring under an
unenforceable decree and imposes punishment for acts occurring prior to the final decree being
signed, it is void. See Ex parte Smith, 1996 WL 283063, at *2.

In sum, because six of the ten violations listed in the contempt order occurred prior to August 12,
2005, the date the final decree in the case was signed, and the sentence imposed in the order
requires reformation, we conclude that the section of the contempt order regarding Katherine=s
motion for enforcement is void. See, e.g., In re Broussard, 112 S.W.3d at 832 (declining to sever void
portions from valid portions of contempt order due to finding it void on several grounds).

B.        Brupbacher=s Motion

Relator also contends he is entitled to habeas corpus relief because attorney=s fees cannot be
classified as child support and, therefore, are not enforceable by contempt.

The section of the contempt order regarding Brupbacher=s motion for enforcement sets forth the
court=s findings and conclusions, adjudges relator in contempt of court pursuant to Brupbacher=s
motion, and assesses a punishment of ten days= confinement for each violationBBa total of fifty
days= confinementBBto run concurrently with the one-hundred day sentence imposed in connection
with Katherine=s motion for enforcement. However, the contempt order states that the sentence
imposed for non-payment of Brupbacher=s fees is suspended conditioned on future payments,
beginning on February 1, 2006, and continuing thereafter on the first day of each month until the full
sum owed is paid. Thus, there is nothing in this record to indicate relator=s incarceration is pursuant
to that portion of the contempt order. Because relator=s contempt sentence was suspended
regarding Brupbacher=s fees, his request for habeas corpus relief as to that sentence is premature.
See In re Scariati, 988 S.W.2d 270, 273 & n.2 (Tex. App.CAmarillo 1998, orig. proceeding) (noting
that likelihood of restraint caused by civil contempt presents ripeness issues); Ex parte Hughey, 932 S.
W.2d 308, 310B11 (Tex. App.CTyler 1996, orig. proceeding) (refusing to issue writ of habeas corpus,
noting that because the function of the writ is to secure release from unlawful custody, it requires a
showing of a restraint of liberty); see also Tex. Gov=t Code Ann. ' 22.221(d) (Vernon 2004) (stating
appellate court=s jurisdiction to issue writ of habeas corpus relates to a restraint of liberty). Further,
because that portion of the contempt order is separate and distinct from the section concerning
Katherine=s motion, addressed above, we express no opinion here regarding the order as it concerns
Brupbacher=s fees.

IV. Conclusion

In conclusion, the section of the trial court=s contempt order covering Katherine=s enforcement
motion is void because it is based on an unenforceable decree and the term of relator=s
incarceration is unclear as contained in the order. Accordingly, we grant relator=s petition for writ of
habeas corpus as discussed above. We do not address relator=s issue concerning Brupbacher=s
enforcement motion. We further order relator released from the bond set by this Court on February
8, 2006, and order relator discharged from custody.

/s/        John S. Anderson

Justice

Petition for Habeas Corpus Granted, and Memorandum Opinion filed May 11, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.
--------------------------------------------------------------------------------

[1]That section provides as follows:

If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain
findings identifying, setting out, or incorporating by reference the provisions of the order for which
enforcement was requested and the date of each occasion when the respondent=s failure to comply
with the order was found to constitute criminal contempt.

Tex. Fam. Code Ann. ' 157.166(b) (Vernon 2002).

[2]Relying on Ex parte Shaver, 597 S.W.2d 498, 499 (Tex. Civ. App.CDallas 1980, orig. proceeding),
Katherine responds to relator=s argument by claiming his child support obligations did not change in
the subsequent decrees and thus, he was aware of his obligations. In Shaver, involving obligations
under temporary child support orders, the court held that Ain the absence of a provision in the
divorce decree . . . superseding@ the temporary child support order, the previous order is still
enforceable. Id. (emphasis added). Moreover, relator does not argue that he did not have proper
notice of the violations. See Ex parte Smith, 1996 WL 283063, at *1B2. Even though relator=s child
support obligations remained the same in the August decree, because that decree was the final
decree enforceable by contempt, relator could not be incarcerated for acts occurring prior to the
signing of the August decree. See Ex parte Guetersloh, 935 S.W.2d at 111.

[3]See also Ex parte Carroll, 175 S.W.2d 251, 252 (Tex. 1943) (finding temporary custody order was
superseded by final divorce decree); Ex parte Grothe, 581 S.W.2d 296, 297 (Tex. Civ. App.CAustin
1979, no writ) (finding temporary orders were superseded by entry of divorce decree).