IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0496

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In re Alvin Green,=20 Relator

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On Petition for Writ of Habeas=20 Corpus

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PER = CURIAM

Alvin Green=20 argues he cannot be imprisoned for nonpayment of a contractual alimony=20 obligation incorporated into his divorce decree. We agree that a court = order to=20 pay spousal support is unenforceable by contempt if the order merely = restates a=20 private debt rather than a legal duty imposed by Texas law. Because the = district=20 court=92s decree was not =93spousal maintenance=94 ordered under the = Family Code but=20 rather was issued solely on the basis of the parties=92 private alimony = contract,=20 we grant Alvin=92s writ of habeas corpus and order him discharged.

Alvin and=20 Brenda Green divorced in 2004, and the district court=92s final divorce = decree=20 includes this =93spousal maintenance=94 language:

The Court=20 finds that ALVIN R. GREEN has agreed contractually to pay BRENDA KAY = GREEN=20 spousal maintenance, as owelty and to affect [sic] a fair division of = the=20 community estate. Accordingly, ALVIN R. GREEN is ordered to pay as = spousal=20 maintenance the sum of $1,950.00 per month to BRENDA KAY GREEN . . . = .

The decree=20 specifies that the $1,950 payments shall continue from February 2004 = until April=20 1, 2005, and then drop to $1,450 per month until January 19, 2016.

Chapter Eight=20 of the Texas Family Code provides for court-ordered spousal = =93maintenance=94 under=20 certain circumstances. Section 8.057(c) allows for modification of = maintenance=20 orders upon a showing of =93a material and substantial change in = circumstances of=20 either party.=94 Several months after the 2004 divorce decree was = signed, Alvin=20 sought a reduction in his spousal support obligations on grounds of = inability to=20 pay. The same district court that entered the divorce decree, but with a = different judge, denied the motion, stating:

The Court=20 finds that the spousal maintenance requested to be modified is not = =93spousal=20 maintenance=94 ordered by the court under Texas Family Code =A7 8 et = seq., but=20 rather that the payments are contractual alimony agreed by the parties = to affect=20 [sic] a fair division of the community estate. As such, the Court finds = that=20 payments are not subject to modification as plead.

In = January=20 2006, Brenda filed a =93Second Motion for Enforcement and First Motion = to Revoke=20 Suspension of Commitment,=94 arguing that Alvin had failed to make = spousal support=20 payments and to maintain health insurance for their children as required = by the=20 divorce decree, and requesting that Alvin be held in contempt and=20 incarcerated.

After a=20 hearing, the district court granted this motion. The court signed an = order=20 prepared by Brenda, but crossed out some of the language. The order = states that=20 Alvin failed to maintain the children=92s health insurance as ordered by = the=20 divorce decree during certain months, but the court six times crossed = out=20 Brenda=92s proposed language finding Alvin =93in contempt of court for = this failure=20 to maintain health insurance as ordered.=94 The order goes on to state = that Alvin=20 did not pay the required spousal support during several months, and that = this=20 failure amounted to contempt of court. In the decretal portion of = the=20 order, as modified by the district court, the court adjudged Alvin in = contempt=20 for seven instances of failure to make spousal support payments. Again, = the=20 court crossed out Brenda=92s proposed language=97for a seventh = time=97that would have=20 adjudged Alvin in contempt for failure to provide health insurance for = the=20 children. The order then contains commitment orders. As punishment for = criminal=20 contempt, it commits Alvin to the county jail for 180 days for the seven = instances of failure to pay spousal support. In a section styled = =93Civil=20 Contempt,=94 the order then states:

IT IS=20 ORDERED that Respondent, Alvin Green, is committed to and shall be = confined in=20 the county jail of Dallas County, Texas, until he complies with the=20 following:

1.=20 Payment of $32,384.92 to Ms. Brenda K. Green.

2.=20 Proof of current health insurance coverage for the children.

Alvin was=20 thereupon incarcerated. He sought habeas corpus relief in the court of = appeals,=20 which denied relief without opinion. He then sought a writ of habeas = corpus in=20 this Court. We granted temporary relief and ordered him released on = $3,000 bond=20 pending review of his petition.

We = hold that=20 Alvin cannot be incarcerated for failure to make the contractual spousal = payments specified in the divorce decree. The failure to pay a private = alimony=20 debt, even one referenced in a court order, is not contempt punishable = by=20 imprisonment.

Article I,=20 section 18 of the Texas Constitution states: =93No person shall ever be = imprisoned=20 for debt.=94 Construing this succinct, eight-word provision=97our = lengthy=20 Constitution=92s shortest section=97we have held that a failure to pay = support=20 promised under a prenuptial agreement is not punishable by contempt. = Ex parte=20 Hall, 854 S.W.2d 656, 656=9657 (Tex. 1993). In Hall, we = recognized that=20 =93[t]he obligation which the law imposes on spouses to support one = another and on=20 parents to support their children is not considered a =91debt=92 within = Article I,=20 section 18, but a legal duty arising out of the status of the = parties.=94=20 Id. at 658. We noted, for example, that an order requiring = temporary=20 support payments under the Family Code fell under this duty. = Id.=20 =93However, a person may also contract to support his spouse and = children, and=20 that obligation, to the extent it exceeds his legal duty, is a debt.=94=20 Id. We held that an order of support is enforceable by = contempt=20 only if it was entered on the authority of the Family Code. Id. = at=20 659.

In = this case,=20 the spousal payments were payments Alvin voluntarily agreed to make as = part of=20 the divorce. As the district court stated in the order quoted above, the = payments were contractual and not ordered under the Family Code=92s = provision for=20 spousal maintenance.

Under Chapter=20 Eight of the Family Code, the court in a divorce matter may order = spousal=20 maintenance, broadly defined to include =93an award in a suit for = dissolution of a=20 marriage of periodic payments from the future income of one spouse for = the=20 support of the other spouse.=94 Tex. Fam.=20 Code =A7 8.001(1). However, a spouse can only be ordered to pay = maintenance=20 if (1) the spouse has committed a recent act of family violence, or (2) = the=20 marriage lasted at least ten years and the receiving spouse cannot = support=20 himself or herself due to disability, is the full-time custodian of a = disabled=20 child of the marriage, or =93clearly lacks earning ability in the labor = market=20 adequate to provide support for the spouse=92s minimum reasonable needs, = as=20 limited by Section 8.054.=94 Id. =A7 8.051. Under section 8.054, = unless the=20 receiving spouse is disabled or the custodian of a disabled child, the=20 maintenance cannot exceed three years, and under section 8.056, the = obligation=20 terminates if the receiving spouse remarries.

In = the=20 pending case, the support Alvin agreed to pay falls outside of Chapter = Eight.=20 The payment obligation exceeds three years, and there were no findings = that=20 Brenda was herself disabled, was caring for a disabled child, or lacked=20 sufficient earning ability. Nor did the decree state that payments = terminate=20 upon Brenda=92s remarriage. And as noted above, the district court has = held=20 explicitly that the maintenance =93is not =91spousal maintenance=92 = ordered by the=20 court under Texas Family Code =A7 8 et seq., but rather that the = payments are=20 contractual alimony agreed by the parties . . . .=94 Under Hall, = the=20 support was not entered =93on the authority of the Family Code,=94 854 = S.W.2d at=20 658, and thus cannot be enforced by contempt.

Brenda argues=20 that the district court could hold Alvin in contempt under section = 8.059(a) of=20 the Family Code, which provides: =93The court may enforce by contempt = the court=92s=20 maintenance order or an agreement for the payment of maintenance = voluntarily=20 entered into between the parties and approved by the court.=94 This = provision and=20 the remainder of the original version of Chapter Eight became law in = 1995, after=20 our decision in Hall. See Act of May 26, 1995, 74th Leg., R.S., = ch. 655,=20 =A710.02, 1995 Tex. Gen. Laws 3543, 3577=9680.

Section=20 8.059(a) can be read two ways. Brenda=92s interpretation is that = any=20 agreement to pay spousal support is enforceable by contempt. The = alternative=20 interpretation is that a maintenance obligation, whether contractual or=20 court-imposed, is punishable by contempt only if it meets Chapter = Eight=92s=20 other requirements. We reject Brenda=92s construction for several = reasons.

First, such a=20 reading would make =93maintenance=94 under section 8.059(a) inconsistent = with the=20 requirements of maintenance elsewhere in Chapter Eight. Maintenance = under this=20 chapter must be of limited duration, must terminate on remarriage, and = must be=20 to support a spouse with special needs or in special circumstances. = Second,=20 reading section 8.059(a) as applying to all contractual alimony = agreements would=20 clash head-on with section 9.012(b), which provides generally that = =93[t]he court=20 may not enforce by contempt an award in a decree of divorce or annulment = of a=20 sum of money payable in a lump sum or in future installment payments in = the=20 nature of debt.=94 As one treatise explains:

The=20 traditional agreement to pay alimony incorporated into a divorce decree = falls=20 within the Family Code=92s ban on enforcement by contempt [citing =A7 = 9.012(b)]. The=20 obligation typically assumed in an alimony agreement is not a legal duty = to pay=20 but is, plain and simple, a debt, nonpayment of which cannot result in=20 imprisonment [citing Hall and other authorities]. It could be = argued that=20 the 1995 enactment of the spousal maintenance statute changes the = situation. . .=20 . A better reasoned approach is to distinguish the traditional alimony = promise=20 (to pay money to balance the property division and minimize taxes, = without=20 regard to the spouse=92s ability to be self-supporting) from the legal = obligation=20 to support an ex-spouse who is incapable of gainful employment. While a = legal=20 obligation of support is enforceable by contempt, the promise to pay = contractual=20 alimony creates nothing more than a debt.

3 John D. Montgomery et al., Texas = Family Law=20 Practice and Procedure =A7 N3.03[1] (2006).

Third,=20 reading section 8.059(a) as requiring imprisonment for breach of a = contractual=20 arrangement would surely make that section unconstitutional. We held in=20 Hall, and reaffirm today, that one spouse=92s voluntary agreement = to=20 support the other, to the extent it exceeds a legal duty, is a = contractual debt=20 that cannot be enforced by contempt. 854 S.W.2d at 658=9659; see also = Allen v.=20 Allen, 717 S.W.2d 311, 313 (Tex. 1986) (=93A marital property = agreement,=20 although incorporated into a final divorce decree, is treated as a = contract and=20 its legal force and meaning are governed by the law of contracts, not = the law of=20 judgments.=94). We must of course avoid a construction of a statute that = renders=20 it unconstitutional. See Tex.=20 Gov=92t Code =A7 311.021(1). Brenda may certainly attempt to = enforce the=20 parties=92 contract via other legal mechanisms=97execution or attachment = of real=20 property=97but Alvin cannot be jailed unless his obligation arises from = a legal=20 duty with a statutory or constitutional basis. There can be no = imprisonment=20 absent such authority.

There remains=20 the question of whether Alvin can be incarcerated under the contempt = order for=20 failure to provide health insurance for his children. Brenda does not = argue that=20 Alvin can be imprisoned for this reason, nor does Alvin argue the = contrary.=20 Regardless, as described above, the contempt order purports to keep = Alvin in=20 jail for civil contempt until he makes spousal payments and = provides=20 proof of current health insurance for his children.

A = failure to=20 provide child support, including a failure to provide health insurance = under a=20 voluntary agreement, is punishable by contempt. See Tex. Fam. Code =A7=A7 = 154.124(c),=20 157.002(b)(2), 157.166(b). But Alvin cannot validly be confined absent a = proper=20 order of commitment, and this contempt order omits two indispensable = things: (1)=20 a written judgment of contempt for neglecting to maintain his = children=92s health=20 insurance, and (2) a written order of commitment for that failure. =93It = is well=20 established that both a written judgment of contempt and a written order = of=20 commitment are required by due process to imprison a person for civil=20 constructive contempt.=94 Ex parte Hernandez, 827 S.W.2d 858, 858 = (Tex.=20 1992) (per curiam); accord Ex parte Lee, 704 S.W.2d 15, 16 = (Tex.=20 1986); Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980). As = described=20 above, the order Brenda originally proposed contained such language, but = the=20 district court crossed out that portion of the contempt judgment = relating to=20 Alvin=92s failure to provide health insurance and every factual finding = that would=20 have supported such a judgment. However, the court-modified and -signed = order,=20 while lacking findings and a written judgment of contempt concerning = health=20 insurance, does contain an order of confinement that says Alvin = must=20 remain in jail until he pays past due spousal support and provides = =93[p]roof of=20 current health insurance coverage for the children.=94 Thus, the = commitment order=20 purports to make such insurance coverage a condition of Alvin=92s = release, if not=20 a basis for his confinement (a fine distinction, to be sure). This = passing=20 reference is not enough under our governing precedent. At the very = least, the=20 district court=92s multiple strike-outs of insurance-related language = makes the=20 order ambiguous as to whether the court intended Alvin=92s failure to = provide=20 health insurance, standing alone, to serve as a sufficient basis for a = judgment=20 of contempt and resulting commitment. A contempt order =93cannot contain = uncertainty or susceptibility of more than one construction or = meaning.=94 Ex=20 parte Glover, 701 S.W.2d 639, 640 (Tex. 1985); see also Ex parte=20 Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (per curiam) (holding that = a=20 contempt order must clearly state in what respect the court=92s earlier = order has=20 been violated and =93must clearly specify the punishment imposed by the=20 court=94).

Accordingly,=20 we grant the writ of habeas corpus and order the relator discharged.

Opinion=20 delivered: April 20, 2007