In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO. =
01-06-00655-CV=20
IN RE =
ROBERT E.=20
LOZANO, JR., Relator
Original=20
Proceeding on Petition for Writ of =
Mandamus
O P I =
N I O=20
N
&=
nbsp;Relator Robert E. =
Lozano has=20
filed a petition for writ of mandamus challenging the trial =
court=E2=80=99s ![3DFootnote](3D"")
April 27, 2006 order of civil and =
criminal=20
contempt for failure to pay spousal maintenance and home mortgage=20
installments. =
In =
five issues, =
Robert=20
complains that (1) the order of contempt is void because =
the=20
underlying decree lacks specificity; (2) the trial court abused =
its=20
discretion in holding Robert in contempt for failure to pay =
spousal=20
maintenance; (3) the trial court abused its discretion in holding =
Robert=20
in contempt for failure to make payments in the nature of a debt; =
(4) the=20
trial court abused its discretion by entering a judgment in an =
amount not=20
supported by the pleadings; and (5) the trial court abused its =
discretion=20
in denying Robert=E2=80=99s motion for new trial.
<=
/SPAN>We=20
conditionally grant the petition for writ of mandamus.
Background
&=
nbsp;Robert=20
and Jody Lozano were married in 1997, and Jody petitioned for =
divorce in=20
March of 2005. On April 14, 2005, the trial court entered =
=E2=80=9CAgreed=20
Temporary Orders=E2=80=9D providing that Robert was to pay spousal =
support to Jody=20
in the amount of $1,384 per month, as a salary from the =
family-owned=20
business, and to pay =E2=80=9Call community debts, including the =
house payment,=20
utilities, car note, and all other fixed debt and/or credit card =
debt.=E2=80=9D=20
The temporary orders were to =E2=80=9Ccontinue in full force until =
the signing of=20
the Final Decree of Divorce or until further order of [the trial =
court].=E2=80=9D=20
<=
/SPAN>On=20
December 1, 2005, the trial court entered an =E2=80=9CAgreed Final =
Decree of=20
Divorce,=E2=80=9D in which Jody was awarded the house as her sole =
and separate=20
property. Under =E2=80=9CSpecial Provision=E2=80=94House =
Sale,=E2=80=9D the decree provides that=20
the =E2=80=9Cbasic temporary orders shall remain in full force and =
effect until=20
the wife sells the home and closes thereon.=E2=80=9D Under =
=E2=80=9CAdditional Orders,=E2=80=9D=20
the decree provides that =E2=80=9Cthe Temporary Orders in this =
case rendered on or=20
about April 14, 2005, shall remain in full force and effect, until =
the=20
house . . . is sold and closing has occurred [with certain =
exceptions].=E2=80=9D=20
The decree does not order Jody to sell the house. =
<=
/SPAN>From=20
February 2006 to March 2006, Robert failed to pay certain spousal =
support=20
payments, house payments, and utilities payments. On March 29, =
Jody filed=20
a =E2=80=9CPetition for Enforcement of Spousal =
Maintenance.=E2=80=9D On April 27, after a=20
hearing, the trial court found that Robert had violated the =
provisions of=20
the final decree by having failed to pay five installments of =
spousal=20
support and two installments on the house note. The trial court =
held=20
Robert in criminal contempt, sentencing him to 60 days in the =
Harris=20
County jail for having committed each of the seven violations. In=20
addition, the trial court held Robert in civil contempt, ordering =
him to=20
thereafter remain incarcerated until he paid in full the amounts =
listed in=20
the seven violations, as well as attorneys fees and costs. In =
addition,=20
the trial court entered a judgment against Robert for a =
maintenance=20
arrearage under the prior decree.
<=
/SPAN>Robert=20
immediately paid the sums due under the seven violations, as well =
as the=20
attorneys fees and costs. On May 2, after a hearing, the trial =
court found=20
that Robert had purged himself of contempt and =E2=80=9Csuspended =
his=20
sentence.=E2=80=9D
On May 17, Jody filed a second petition =
for=20
enforcement, seeking =E2=80=9Crevocation of the =
suspension,=E2=80=9D on the basis that=20
Robert failed to make the May 1 payment on the house note and was=20
continually failing to pay the utilities. On May 23, Robert moved =
for a=20
new trial on the enforcement of the spousal support. After a =
hearing on=20
July 6, the trial court denied Robert=E2=80=99s motion for new =
trial, but stated=20
that it would not move forward on Jody=E2=80=99s petition for =
enforcement to allow=20
Robert time to file for =E2=80=9Ca writ of habeas corpus.=E2=80=9D =
This petition for writ=20
of mandamus followed.=20
<=
/SPAN>Robert=20
asks this Court to direct the trial court to vacate its April 27, =
2006=20
order of contempt and to direct the trial court =E2=80=9Cto make =
no further=20
findings of contempt against Relator with respect to the payment =
of=20
spousal support, house payments, utilities, or any other =
obligations which=20
are in the nature of a debt.=E2=80=9D
Failure to Pay=20
Spousal Maintenance and House Note
&=
nbsp;In=20
his second and third issues, Robert contends that the trial court =
abused=20
its discretion in holding him in contempt for failure to pay =
spousal=20
support and for failure to make installment payments on the house=20
note.
During the May 2 hearing, the trial =
court found=20
that Robert had purged himself of contempt by having paid the sums =
due for=20
violations numbered 1=E2=80=937 and the attorney=E2=80=99s fees as =
ordered. The only issue=20
remaining appears to be the punitive sentence for criminal=20
contempt.
<=
/SPAN>A=20
party may contractually agree to pay spousal maintenance and, once =
such an=20
agreement is approved by the court and made part of its judgment, =
the=20
agreement becomes a judgment of the court. Ex parte Gorena, =
595=20
S.W.2d 841, 844 (Tex. 1979); Rivera v. Office of Attorney =
Gen., 960=20
S.W.2d 280, 283 (Tex. App.=E2=80=94Houston [1st Dist.] 1997, no =
writ). A=20
court-approved contractual agreement for spousal maintenance is=20
enforceable by order of contempt. Tex. Fam. Code Ann. =
=C2=A7 8.059=20
(Vernon 2006). However, it =E2=80=9Cis enforceable by contempt =
only to the extent=20
that the support awarded is also authorized by the Texas Family =
Code and=20
Constitution.=E2=80=9D Ex parte Hall, 854 S.W.2d 656, 656 =
(Tex. 1993).=20
But see Gorena, 595 S.W.2d at 845 (stating in earlier case =
law that=20
enforceability of contempt order did not depend on statutory =
authority).=20
Generally, the Family Code requires the trial court to limit the =
duration=20
of the maintenance to three years from the date of the order and =
to=20
further limit the duration to the shortest reasonable period that =
will=20
allow the spouse seeking maintenance to obtain appropriate =
employment or=20
skills to meet minimum needs, unless the ability of the spouse to =
so=20
provide is substantially diminished. Tex. Fam. Code Ann.=20
=C2=A7 8.054.
<=
/SPAN>Here,=20
pursuant to the temporary orders, Robert must pay Jody =E2=80=9Cas =
temporary=20
spousal support $1,384 per month which is paid as a salary from =
the family=20
owned business . . . until further order of this Court.=E2=80=9D =
The final decree=20
orders that =E2=80=9C[t]he basic Temporary Orders in this case =
remain in full=20
force and effect, until the house . . . is sold and closing has =
occurred,=20
SAVE AND EXCEPT the following provisions: [health insurance, cell =
phone,=20
toll tag].=E2=80=9D Hence, Robert=E2=80=99s obligation is to pay =
spousal support to Jody=20
in the form of a salary from Robert=E2=80=99s business =
=E2=80=9Cuntil further order=E2=80=9D by=20
the trial court, and this provision will remain in effect =
=E2=80=9Cuntil the house=20
. . . is sold.=E2=80=9D
<=
/SPAN>First,=20
the limiting factor imposed on Robert=E2=80=99s obligation is not =
authorized by=20
the Family Code. The Family Code provides that maintenance is to =
be=20
limited to the shortest period possible that will allow the =
receiving=20
spouse to develop job skills and provide a reasonable level of=20
self-support. Tex. Fam. =
Code=20
Ann. =C2=A7 8.054. There is no statutory =
authorization for=20
limiting spousal maintenance by, as here, the sale of a house.=20
<=
/SPAN>In=20
addition, because the duration of Robert=E2=80=99s obligation to =
pay spousal=20
maintenance is without meaningful limitation, it exceeds that =
authorized=20
by the Family Code. The Family Code mandates that maintenance must =
be=20
limited to three years unless the court finds that the ability of =
the=20
recipient spouse to provide self-support is substantially =
diminished.=20
See Tex. Fam. Code =
Ann. =C2=A7 8.054(a), (b). There is nothing in =
the record=20
before us indicating any such finding. The decree and the =
temporary orders=20
it extends provide that Robert is to pay spousal support until the =
house=20
is sold. However, there is no language in the decree or temporary =
orders=20
that compels Jody ever to sell the house.=20
<=
/SPAN>The=20
record shows that the Lozano=E2=80=99s divorce became final on =
December 1, 2005,=20
but it was not until March 22, 2006 that Jody first put the house =
on the=20
market=E2=80=94listing it with the real estate agency that employs =
Jody and for an=20
amount well above the home=E2=80=99s appraised value. On April 18, =
2006, at the=20
hearing on Jody=E2=80=99s first petition for enforcement, Jody =
testified that,=20
although she has the house on the market, there is no language in =
the=20
decree that orders her to sell the house. In addition, the trial =
court=20
explained to Robert that =E2=80=9Ctechnically the way this decree =
was written she=20
could take it off the market and, yeah, you could pay her bills =
for the=20
next three or five years. . . . These papers were pretty =
open-ended. She=20
could stay in that house indefinitely while you are paying for =
it.=E2=80=9D At the=20
contempt hearing on May 2, 2006, Jody=E2=80=99s counsel stated =
that Jody need not=20
ever sell the house because =E2=80=9Cthere was nothing to force =
her to do so, so=20
she could just not sell it at all if she didn=E2=80=99t want =
to.=E2=80=9D=20
=
=
The=20
wisdom of the parties=E2=80=99 agreement is not before this Court; =
rather, the=20
sole issue is whether the agreement is enforceable by contempt. We =
conclude that Robert=E2=80=99s obligation to pay maintenance is =
not limited to=20
three years and is without substantive limitation because it rests =
on a=20
contingency that may never occur. The discussion in the trial =
court=20
supports this conclusion. Hence, the maintenance ordered goes =
beyond that=20
authorized by the Family Code, which permits an indefinite =
duration of=20
support only if there has been a finding that the ability of the =
recipient=20
spouse to provide for his or her minimum reasonable needs through=20
employment is substantially or totally diminished. See =
Tex. Fam. Code Ann.=20
=C2=A7 8.054(a), (b); Pickens v. Pickens, 62 =
S.W.3d 212, 217=20
(Tex. App.=E2=80=94Dallas 2001, pet. denied). Because =
Robert=E2=80=99s obligation to pay=20
spousal maintenance exceeds that authorized by the Family Code, it =
is not=20
enforceable by contempt. See Hall, 854 S.W.2d at 656, 658. =
Hence,=20
those portions of the order that hold Robert in contempt for =
failure to=20
pay spousal maintenance (violations enumerated 1-5 in the order) =
are void.=20
See In re Villanueva, 56 S.W.3d 905, 908=E2=80=9310 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2001, orig. proceeding) (holding those portions of contempt =
order=20
void that are beyond trial court=E2=80=99s power to enter). When, =
as here, each=20
violation is listed separately and is assessed a separate =
punishment, the=20
invalid portion is severed from the order, and the valid portion =
stands.=20
See In re Henry, 154 S.W.3d 594, 598 (Tex. 2005); Ex =
parte=20
Williams, 866 S.W.2d 751, 753 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1993,=20
orig. proceeding).
<=
/SPAN>With=20
respect to Robert=E2=80=99s related third issue, that the trial =
court erred in=20
holding him in contempt for his failure to make two house payments =
(violations enumerated 6 and 7), it is well-settled that an =
obligation in=20
a divorce decree to make installment payments on a home mortgage =
is not=20
enforceable by contempt because such enforcement amounts to =
imprisonment=20
for failure to pay a debt, in violation of Article I, Section 18, =
of the=20
Texas Constitution. See Tex.=20
Const. art. I, =C2=A7 18; Whitt v. Whitt, 684 S.W.2d =
731, 735=20
(Tex. App.=E2=80=94Houston [14th Dist.] 1984, orig. proceeding); =
Ex parte=20
Duncan, 462 S.W.2d 336, 338 (Tex. Civ. App.=E2=80=94Houston =
[1st Dist.] 1970,=20
orig. proceeding). Hence, those portions of the order that hold =
Robert in=20
contempt for failure to pay two installments on the house note =
(violations=20
enumerated 6 and 7) are void and severed from the remaining order. =
See Henry, 154 S.W.3d at 598; Williams, 866 =
S.W.2d at=20
753; Whitt, 684 S.W.2d at 735.
<=
/SPAN>We=20
conclude that none of the violations enumerated in the order are=20
punishable by contempt, and thus no contemptuous acts remain to =
support=20
the April 27, 2006 order. We need not reach the issues of whether=20
the underlying decree lacked specificity, whether the trial court =
erred in=20
arriving at a judgment not supported by the pleadings, or whether =
the=20
trial court erred in denying Robert=E2=80=99s motion for new =
trial.
Conclusion
<=
/SPAN>We=20
hold that the trial court abused its discretion in holding Robert =
in=20
contempt for failure to pay spousal maintenance and for failure to =
pay=20
installments on the house note. Accordingly, we conditionally =
grant=20
Robert=E2=80=99s petition for writ of mandamus and direct the =
trial court to=20
vacate its April 27, 2006 order of contempt. Our writ will issue =
only if=20
the trial court fails to comply with this =
order.
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; Evelyn=20
V. Keyes
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; Justice
Panel =
consists of=20
Justices Keyes, Alcala, and Bland.