I respectfully dissent. Because the majority makes generalized, conclusory statements about the various documents, it is necessary to set them out in particular.
The Second Temporary order, signed on December 18, 2003, stated, in pertinent part:
(3) IT IS FURTHER ORDERED that ANDREW BOYO shall timely pay as additional temporary child support the monthly mortgage payments payable to Altegra Credit at P.O. Box 856156, Louisville, KY 40285-66156 in the amount of $1907.47 per month and the second mortgage payments to Citi Financial Mortgage Co. at 1111 Northpoint Drive, Coppell, Texas 75019 in the amount of $747.50 per month, on the property located at 115 E. Shadow Point Circle, The Woodlands, Texas, beginning December 1, 2003 and continuing on the first day of each month thereafter until further order of the Court. IT IS FURTHER ORDERED that on or before January 1, 2004, ANDREW BOYO shall bring current any delinquent mortgage *Page 475 payments that are currently due and owing to Altegra Credit and Citi Financial Mortgage Co.
The Motion for Enforcement of Second Temporary Order and Order to Appear, filed February 23, 2004, alleged, in pertinent part:
8. Respondent ANDREW BOYO has violated the order described above as follows:
ADDITIONAL CHILD SUPPORT — MONTHLY MORTGAGE PAYMENTS
ANDREW BOYO Respondent, has failed to pay directly to Citi Financial Mortgage Company and Altegra Credit Company the full amount due for the monthly mortgage payments as follows:
Date Date Amount Amount Violation Due Due Due Paid Arrearage
1. Altegra Credit 11/01/03 Not Paid 1907.47 00.00 1907.47 2. Citi Financial 12/01/03 Not Paid 747.50 00.00 747.50 3. Altegra Credit 12/01/03 Not Paid 1907.47 00.00 1907.47 4. Citi Financial 01/01/04 Not Paid 747.50 00.00 747.50 5. Altegra Credit 01/01/04 Not Paid 1907.47 00.00 1907.47 6. Citi Financial 02/01/04 Not Paid 747.50 00.00 747.50 7. Altegra Credit 02/01/04 Not Paid 1907.47 00.00 1907.47
Total Combined Arrearage — Mortgage Payments $ 9,872.38 *Plus late fees and penalties + 3,585.12 __________ $13,457.50
The Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment, and for Commitment to County Jail, signed on May 4, 2004 states, in pertinent part:
The Court further finds that Respondent has failed to comply with the provisions of the order as follows:
Contempt Findings and Findings on Arrearages
ANDREW BOYO Respondent, has failed to pay directly to Citi Financial Mortgage Company and Altegra Credit Company the full amount due for the monthly mortgage payments as follows:
Date Date Amount AmountViolation Due Due Due Due Arrearage
1. Altegra Credit 11/01/03 Not Paid 1907.47 00.00 1907.47 2. Citi Financial 12/01/03 Not Paid 747.50 00.00 747.50 3. Altegra Credit 12/01/03 Not Paid 1907.47 00.00 1907.47 4. Citi Financial 01/01/04 Not Paid 747.50 00.00 747.50 5. Altegra Credit 01/01/04 Not Paid 1907.47 00.00 1907.47 6. Citi Financial 02/01/04 Not Paid 747.50 00.00 747.50 7. Altegra Credit 02/01/04 Not Paid 1907.47 00.00 1907.47
Total Combined Arrearage — Mortgage Payments $ 9,872.38 *Plus late fees and penalties + 3,585.12 _________ $13,457.50
The Court finds that Respondent was able to pay child support in the amounts and on the dates ordered as set out above and that Respondent is guilty of a separate act of contempt for each such separate failure to pay child support in the amounts ordered.
The Court further finds that on the day of this hearing Respondent has the ability to comply with the order of the Court by paying the child support arrearages set forth in violations 1-11[sic] enumerated above.
. . . .
Relief Granted
IT IS ADJUDGED that Respondent, ANDREW BOYO, is in contempt for each separate violation enumerated above. *Page 476 Civil Contempt
IT IS ORDERED that Respondent, ANDREW BOYO, shall thereafter be further confined . . . until Respondent has complied with the following orders. IT IS ORDERED that Respondent —
1. pay $13,457.50, to MARGARET BOYO. . . .
The Second Temporary Order, signed December 18, 2003, requires Boyo to do two different things: make specified monthly payments beginning December 1, 2003, and bring current any delinquent mortgage payments that were currently due and owing by January 1, 2004. Because a contemnor cannot be held in contempt of court for conduct that occurred before the court's order is reduced to writing, In re Sellers, 982 S.W.2d 85, 87 (Tex.App.-Houston [1st Dist.] 1998, orig. proceeding) (citing Ex parte Chambers,898 S.W.2d 257, 262 (Tex. 1995)), the monthly payment requirement could only apply to those payments due after December 18, 2003. Consequently, the specific monthly requirement applies to violations 4, 5, 6, and 7 of the motion to enforce and the "bring current" requirement applies to violations 1, 2, 3, and 4 of the motion to enforce. Unfortunately, Ms. Boyo did not rely upon the "bring current" provision in her motion to enforce; she only alleged Mr. Boyo had failed to make the monthly payments as ordered.
Contrary to the majority's conclusion that "[t]he trial court held the relator in contempt, not for failing to timely pay the November and December installments, but for failing to cure the delinquency by January 1," the trial court actually found Mr. Boyo had failed to pay the monthly mortgage payments and enumerated them as alleged in the motion to enforce. Thus, the trial court clearly found Mr. Boyo in contempt for those monthly payments due prior to December 18 and this was error. Ex parteChambers, 898 S.W.2d at 262.
The trial court then used the total arrearage as the basis for purging of the civil contempt. This too was error for when one punishment is assessed for more than one act of contempt and one of the acts is not enforceable by contempt, the entire punishment is void. See In re Gabbai, 968 S.W.2d 929, 931 (Tex. 1998) (orig.proceeding).
The majority, without saying so, is attempting to use the "right result for the wrong reason" rationale, see Hawthorne v.Guenther, 917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied), or the "[n]otwithstanding the reasons stated by the trial court [in its findings and conclusions], we will uphold the [district court's] order on any ground which is supported by the record" rationale. In re Stevens, 971 S.W.2d 757, 760 (Tex.App.-Beaumont 1998, orig. proceeding). These rationales are fine in the ordinary civil judgment context, but are not applicable to a contempt judgment because of due process considerations.
As stated in In re Ross, 125 S.W.3d 549, 553 (Tex.App.-Austin 2003, orig. proceeding):
Contempt proceedings are quasi-criminal in nature, and the contemner is entitled to procedural due process throughout the proceedings. See Ex parte Brister, 801 S.W.2d 833, 835 (Tex. 1990) (Cook, J., concurring) (citing Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983)). Among those procedural due process rights is the right to reasonable notice of each alleged contemptuous act. The due process requirement is one of "full and complete notification" of the conduct with which the contemner is charged and the contemner must be given a reasonable opportunity to meet the *Page 477 charges by defense or explanation. Id. (citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979)); Ex parte Adell, 769 S.W.2d 521, 522 (Tex. 1989). A contempt order rendered without such adequate notification is void. Adell, 769 S.W.2d at 522.
Here the motion to enforce gave notice that Ms. Boyo was relying upon the specific monthly payment provisions of the second temporary order, rather than the "bring current" provision. The majority, though perhaps well-intentioned, cannot now rewrite the motion to enforce nor the trial court's order in order to justify Mr. Boyo's incarceration for failure to pay the total arrearage.1
I would hold the order void, grant the writ and release Mr. Boyo.