In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-486 CV
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IN RE SHIRLEY LANGSTON
The trial court found Shirley Langston in contempt and ordered her put in jail. In this habeas corpus proceeding, Shirley challenges her "impending incarceration" by arguing that the trial court did not have statutory authority to hold her in contempt and that the underlying order was not enforceable by contempt.
An original habeas corpus proceeding is a collateral attack on the contempt order. In re Bielefeld, 143 S.W.3d 924, 927 (Tex. App.--Fort Worth 2004, orig. proceeding). We review a habeas corpus petition to determine if the commitment order is void, either because it was beyond the trial court's power to enter or because relator has not been afforded due process. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005).
Shirley and Robert were divorced on May 3, 2005. As part of the agreed divorce judgment, the trial court ordered Robert to pay Shirley $89,300 within fourteen days of the entry of the divorce decree. He complied. Shirley received the money on May 3, 2005, and that same day gave the money, minus $9,000 for attorney's fees, to her daughters.
Robert petitioned the court to order Shirley to deposit the $89,300 into the registry of the court should she file an appeal. Shirley filed her notice of appeal. Within thirty days of the filing of the appeal, the trial court issued temporary orders requiring Shirley to deliver $80,000 to the clerk of the court on July 25, 2005. The trial court specifically stated the temporary order was issued to protect the rights and property of the parties. When Shirley did not deliver the money, Robert filed a contempt motion for failure to obey the trial court's order. The trial court found Shirley "fraudulently transferred the $80,000.00 to her children" and violated the temporary order by failing to deliver the $80,000 to the court registry on July 25, 2005. The court found her in contempt and ordered a thirty-day "incarceration" for the violation of the order and confinement thereafter until she deposited the money into the registry of the court.
In our opinion in the appeal from the Langston's divorce judgment, issued this same date, we held Shirley could not appeal the judgment because she accepted and disposed of the benefits of the judgment. See Langston v. Langston, No. 09-05-00281 CV, __ Tex. App. Lexis ____ (Tex. App.--Beaumont Jan. 19, 2006, no pet. h.); Waite v. Waite, 150 S.W.3d 797, 803, (Tex. App.--Houston [14th Dist.] 2004, pet. denied)(citing, among others, Carle v. Carle, 149 Tex. 469, 234 S.W.3d 1002, 1004 (1950)). In the proceedings below, the trial court found, pursuant to Tex. Fam. Code Fam. Ann. § 6.709 (Vernon 1998), that it had authority to issue the order requiring Shirley to place the $80,000 in the registry of the court, though she had already lawfully received the money under the judgment. Section 6.709 authorizes the trial judge to issue temporary orders during the pendency of an appeal "for the preservation of the property and for the protection of the parties during the appeal[.]" Id. Since we have concluded in our companion opinion that Shirley cannot appeal the property division after having accepted and disposed of the benefits of the judgment, the trial court's temporary order, grounded on section 6.709, no longer has any purpose. The money was awarded to her in the judgment, and she was free to give her money away. Accordingly, we grant the petition for writ of habeas corpus, vacate the commitment order, and order relator Shirley Langston released from bond and discharged from custody.
WRIT GRANTED.
PER CURIAM
Submitted on November 23, 2005
Opinion Delivered January 19, 2006
Before McKeithen, C.J., Gaultney, and Horton, JJ.