(dissenting).
I respectfully dissent.- The relator should' 'be remanded to the custody of the sheriff of Tarrant County to be held until he purges himself of contempt. The order of commitment.must.be construed in connection with the provisions of the divorce de*381cree which effects a division of the community property between relator and his former wife. The divorce decree provides that, “The plaintiff (Mary Ruth Yates) shall have $67,920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More than said sum is evidenced by a promissory note of said corporation to the defendant’s order. He shall deliver said note to the plaintiff as security for her payment, * * *”
I interpolate here to say that undoubtedly the relator could purge himself of contempt here and now by delivering to Mrs. Yates the promissory note mentioned and placing her in the position she purportedly occupied under the court’s decree at the time it was rendered. The opinion of the Court states that prior to the entry of the divorce decree, the relator had pledged the note to a bank. This circumstance is in actuality wholly immaterial to the real issue of this case. The gravamen of relator’s offense is concealment which in effect amounted to a representation that the note was a part of the community estate and hence available for the purposes of effecting a just settlement of such estate between husband and wife. The question of whether relator is able to deliver the note to Mrs. Yates is material only upon the issue of the ability of relator to purge himself of contempt in failing to carry out the trial court’s decree.1
The divorce decree was somewhat unusual in that it contained an option provision. After the wording above quoted the decree proceeds as follows: “but (he) may redeem the note by installment payments of $500.00 per month principal and one twelfth of four per cent interest per annum on the unpaid balance of $67,920.75.”
In the order of commitment the Court found that the relator has made a fraudulent pledge of all the community estate; that he has wilfully concealed this circumstance from the Court and that relator “has always intended, and now intends, to defraud the plaintiff of her rights adjudged by the decree; that he has been continuously able to perform the decree, and that his default is wilful and contumacious.”
Had the order of commitment simply provided that the relator be remanded to the custody of the sheriff until he complies with the provisions of the decree, there could be no doubt as to its validity. Ex parte Latham, 47 Tex.Cr.R. 208, 82 S.W. 1046 (1904). When the divorce decree and the order of commitment (the contempt order) are construed together, as they must be, the legal effect is the same. Certainly the contempt order cannot enlarge or add to the provisions of the decree. As long^ as one follows the provisions of the decree, he cannot be held liable for contempt. However, a trial judge may in his discretion allow something less than a full performance to operate as a purge of contempt. In all events, the person charged with contempt is in no position to complain that something less than full performance is required of him in order to obtain a release from custody.
In the present case, that portion of the order which permits relator to urge himself of contempt refers to the option payments rather than to the delivery of the note, although as above pointed out, the ability to purge cannot and is not restricted to the option payments. The record discloses the reason for such provision. It is shown that the relator had made a number of $500.00 monthly payments and had, through counsel, assured the Court that he would continue to make such payments. The handling of divorce settlements, child support payments and the like present difficulties which at times are aggravated by personal ánimos-*382ities. Much patience and ingenuity is often required of the district judge in determining these problems and in preventing persons laboring under the stress of their emotions from taking actions which would probably result in financial loss to the parties directly involved as well as their dependents. It is all right to split the blanket down the middle if one doesn’t care much about the kind of a blanket that remains, but when a going business concern is involved some other form of division than one in kind is often called for. The divorce decree in this case, while unusual in provision (as is usually the case in a complicated business property situation) represents an attempt to save and’ protect the property rights of both parties. Violations of its terms should not be taken lightly, and all reasonable in-tendments or constructions of the divorce decree and the ancillary order of commitment should be given effect so as to support and not destroy the efficacy of tire judgment.
There is no debt involved here. The relator has violated the provisions of a property settlement decree. He has not delivered the note to his former wife as he was ordered to do. He has not made the required monthly payments essential to his redemption of the note under the optional provisions of the decree. The trial court has found that he is able to perform and until inability to so perform is demonstrated to this Court, the relator should be held in custody. Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Harvey v. Harvey, Colo., 384 P.2d 265 (1963).
The optional nature of the monthly payment provision in the divorce decree in itself prevents the same from being a “debt”. If such payments were not made, an action for a money judgment for debt could not be maintained thereon because of its optional nature, although other remedies may be available. In Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A.,N.S., 1140 (1908) this Court said:
“There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money. * * * If it (the order involved in the case) were not complied with the plaintiff in the case could not maintain an action in any other court in this state to enforce the payment. 4 Ency.Pl. & Pr. 432, 433. It seems to us clear that the order entered by the court did not in any sense constitute a debt against the defendant, Davis.”
In this case we have a direct violation of a court decree designed to protect the vested property rights of the wife in the community and yet it is held that a “debt” is involved, despite the fact that no debt is created by the divorce decree. It is somewhat interesting to note that one rationale of the holding that alimony (where permitted by statute) is not a debt is that “the (alimony) order is in effect a decree of distribution of property, requiring payment to the wife of her share of the estate,” and the function of a contempt decree is not merely to punish for the failure to pay money but rather to force one to carry out the decree of a court when he is able to do so and his refusal to perform is wilful and contumacious. 30 A.L.R. 130, 1. c. 133, Annotation, “Alimony or maintenance as debt within constitutional or statutory provisions for debt.”
STEAKELY, J., joins in this dissenting opinion.
. In connection with the pledge of this note, relator says that he was acting “on advice of counsel” and perhaps it should be said that such advice was not given by the attorney who represents the relator in the present proceeding. It is not shown here that the alleged pledge to the bank was valid or would render it impossible for relator to deliver the note to Mrs. Yates as required by the divorce decree even if a reacquisition of the note be necessary.