Dissenting opinion issued August 2, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00520-CV
———————————
ADELINA MICHELLE CLINE, Appellant
V.
JASON W. CLINE, Appellee
On Appeal from the 22nd District Court
Comal County, Texas
Trial Court Case No. C2012-0499A
DISSENTING OPINION
This is an attempted appeal from an order enforcing a mother’s obligation to
pay $781.32 in child support by jailing her for 180 days. The mother, Adelina
Michelle Cline, was found in contempt of court on four separate counts, in each
case for failure to make a court-ordered child-support payment in the amount of
$195.33. She also was found indigent by the trial court, and a lawyer was
appointed to represent her at public expense.1
The mother has attempted to appeal from the order committing her to jail on
the basis of her affirmative defense: she can’t afford to pay.2 The court dismisses
that part of her appeal, reasoning that contempt orders are unappealable. As noted
by the court, our prior precedent suggests the general unappealability of contempt
1
The commitment order that the mother attempts to appeal ordered her to
appear before the court to begin her jail sentence on August 30, 2017.
Although the mother’s brief makes reference to her being jailed on May 24,
2017, nothing in our record confirms whether she has actually served all,
some, or none of the jail sentence.
2
See TEX. FAM. CODE § 157.008(c) (“An obligor may plead as an affirmative
defense to an allegation of contempt . . . that the obligor: (1) lacked the
ability to provide support in the amount ordered; (2) lacked property that
could be sold, mortgaged, or otherwise pledged to raise the funds needed;
(3) attempted unsuccessfully to borrow the funds needed; and (4) knew of no
source from which the money could have been borrowed or legally
obtained.”).
2
orders.3 Family Code section 109.002 authorizes an appeal from any “final order”
rendered under Title 5 of the Code, which governs suits affecting the parent-child
relationship. My research has not revealed any precedent of the Supreme Court of
Texas or of this court that squarely holds that a contempt order in a child-support
enforcement action does not qualify as such an appealable “final order” under the
current Family Code. Prior to the adoption of the recodified Family Code,
including section 109.002, our Supreme Court did hold in Norman v. Norman4 that
a court of appeals lacked jurisdiction to review an order that declined to hold a
father in contempt for child-support arrearages, applying section 14.09 of the then-
applicable version of the Family Code. The authority relied upon by Norman was
Wagner v. Warnasch,5 which stated the rule thus: “A judgment of a court
3
E.g., Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.—Houston [1st Dist.]
1994, writ denied); see also Jones v. Tex. State Attorney Gen., No. 01-03-
00393-CV, 2003 WL 22054291, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 29, 2003, no pet.) (mem. op.) (in attempted appeal from contempt
order arising from failure to pay child support, court notified appellant that
the decision was “subject to attack only by petition for writ of habeas
corpus,” then subsequently granted appellant’s motion to transform the
appeal into a petition for writ of habeas corpus).
4
692 S.W.2d 655 (Tex. 1985) (per curiam).
5
295 S.W.2d 890 (Tex. 1956).
3
convicting a person of contempt is not subject to revision in any other tribunal,
unless specially authorized by statute.”6
At the time Wagner was decided, Texas statutes “made no provision for an
appeal from an adjudication and commitment for contempt, and none for review by
writ of error.”7 Since the relevant statutory authority has changed materially
since Wagner was decided in 1956 and Norman was decided in 1984, the
continuing viability of these authorities cannot be assumed. Thus, although the
Attorney General expressly relied on Norman in a letter sent to this court to
suggest a lack of jurisdiction in lieu of filing a brief, it is not apparent that Norman
is binding authority after the adoption of Title 5 of the Family Code effective
April 20, 1995.8 The relevant statutory authorization for an appeal at the time
Norman was decided provided: “An appeal may be taken by any party to a suit
affecting the parent-child relationship from an order, decree, or judgment . . .
entered under Chapter 14 of this code appointing or refusing to appoint a managing
conservator; appointing or refusing to appoint a possessory conservator; ordering
or refusing to order payments for support of a child; or modifying any such order
6
Id. at 893 (quoting 9 Tex. Jur., Contempt § 45) (emphasis supplied).
7
Id.
8
Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113.
4
previously entered . . . .”9 By contrast, the Family Code now authorizes appeals
from final orders in SAPCR cases in much broader terms: “An appeal may be
taken by any party to a suit from a final order rendered under this title.”10
Our court tried to avoid this non-merits disposition of the mother’s issue by
notifying her lawyer about the jurisdictional issue and the availability of habeas
corpus or mandamus review as alternatives.11 In response, counsel insisted that the
contempt order was appealable and did not request that the challenge be considered
as a request for habeas corpus or mandamus relief. Counsel did not attempt to
9
Act of May 25, 1973, 63rd Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws
1411, 1419, and Act of May 26, 1983, 68th Leg., R.S., ch. 962, § 1, 1983
Tex. Gen Laws 5233 (former Tex. Fam. Code § 11.19(b)(2)) (emphasis
supplied); repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995
Tex. Gen. Laws 113.
10
TEX. FAM. CODE § 109.002(b); cf. Lehmann v. Har–Con Corp., 39 S.W.3d
191, 195 (Tex. 2001) (“A judgment is final for purposes of appeal if it
disposes of all pending parties and claims in the record, except as necessary
to carry out the decree.”).
11
Cf. CMH Homes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (appellant
who filed an appeal from an unappealable order was nevertheless entitled to
have its appeal treated as a petition for writ of mandamus because it
specifically requested mandamus relief and because requiring the filing of a
separate document entitled “petition for writ of mandamus” would
“unnecessarily waste the parties’ time and further judicial resources”); Jones
v. Brelsford, 390 S.W.3d 486, 497 n.7 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (“in an appropriate case, we may treat an appeal as a petition
for writ of mandamus, and an appellant who specifically requests that her
appeal be treated as a mandamus petition invokes this Court’s original
jurisdiction”).
5
distinguish or otherwise address the authorities this court identified as being
relevant to the jurisdictional issue.12
There has been no contest to the mother’s indigence, and rational actors who
could avoid spending half a year in jail by paying a debt of $781.32 would do so.
Moreover, the Texas Bill of Rights specifically forbids imprisoning a person for
debt.13 It would be far more efficient to fix the procedural deficiencies of this case
now so that the merits can be addressed, rather than requiring the appellant’s court-
appointed lawyer to start over with a new filing at public expense.
In furtherance of our Supreme Court’s policy of treating “minor procedural
mishaps with leniency, preserving the right to appeal,”14 the court should have
12
Our order referenced In re B.A.C., 144 S.W.3d 8, 11 (Tex. App.—Waco
2004, no pet.), for the proposition that contempt findings are generally not
appealable and are subject to challenge only by original proceeding, and
Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001,
pet. denied), for the proposition that “[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).” Our order
also referenced Family Code section 109.002(b), yet the mother has
presented no argument that this statute authorizes an appeal in SAPCR cases
as an exception to the general rule precluding appeal from a contempt order.
13
TEX. CONST. art. I, § 18 (“No person shall ever be imprisoned for debt.”).
14
Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per
curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)
(“appellate courts should not dismiss an appeal for a procedural defect
whenever any arguable interpretation of the Rules of Appellate Procedure
would preserve the appeal”).
6
exercised its authority to invite a satisfactory merits-based submission of the case
by requesting additional briefing addressing the mother’s indigency
defense in the correct procedural form.15 Because the court fails to do so, I
respectfully dissent.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Justice Massengale, dissenting.
15
See TEX. R. APP. P. 38.9(b) (“If the court determines, either before or after
submission, that the case has not been properly presented in the briefs, or
that the law and authorities have not been properly cited in the briefs, the
court may postpone submission, require additional briefing, and make any
other order necessary for a satisfactory submission of the case.”); see also St.
John Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.—
Dallas 2018, pet. filed) (en banc) (Schenck, J., dissenting) (discussing the
authority of Rule 38.9(b) and the power of a court of appeals to request
additional briefing to ensure a proper presentation of a case to facilitate a
disposition on the merits).
7