Ex Parte Conoly

WHITHAM, Justice,

dissenting.

I respectfully dissent. For the reasons given below, I would hold that the confinement of relator Jim M. Conoly (“Jim”) is void in its entirety and would order him discharged from custody.

On September 9, 1986, Brenda J. Conoly (“Brenda”) filed a motion for contempt, alleging that her ex-husband, Jim, had failed to make certain payments of child support, in violation of certain provisions in the decree granting Brenda and Jim a divorce. The motion also alleged that Brenda believed that Jim would continue to violate the child support provisions of the divorce decree in the future.

On January 12, 1987, after a hearing on Brenda’s motion for contempt, the trial court signed two enforcement orders. One held Jim in contempt for not paying child support up to the date on which Brenda filed her motion. That order found the child support arrearage, as of that date (September 9), to be $3,109, and ordered Jim to pay that amount (along with costs and attorney’s fees assessed as costs) in order to purge himself of contempt. The second enforcement order also held Jim in contempt for not paying child support that had accrued during the time after Brenda had prepared her motion for contempt, but before the date of the hearing. The second order found the arrearage accruing during that period to be $600, and ordered Jim to pay that additional amount to purge himself.

We thus have, purportedly, two contempt judgments, executed simultaneously, which, taken together, adjudge Jim in contempt for the entire amount of unpaid child support that had accrued by the date of the hearing (January 12) on Brenda’s motion for contempt. Because I conclude that there is, in fact, only one contempt judgment, I would hold both enforcement orders void and discharge Jim from custody.

The two orders signed by the trial court on January 12 resulted from a single motion that Brenda filed, from a single hearing conducted on that motion, and from a single adjudication by the trial court. A judgment, like .any other written instrument, is to be construed as a whole. See Rodgers v. Williamson, 489 S.W.2d 558, 560 (Tex.1973) (stipulation of parties contained in separate instrument held incorporated into judgment, in manner of incorporation of documents generally). Separate instruments executed at the same time, for the same purpose, and in the course of the same transaction, are to be considered as one instrument, and are to be read and construed together. Jones v. Kelley, 614 S.W.2d 95, 98 (Tex.1981); Wasaff v. Lipscomb, 713 S.W.2d 730, 732 (Tex.App.—Houston [14th Dist.] 1986, no writ). It follows that the two orders of January 12, 1987, are to be construed as one instrument — as one judgment.

I also noted that reducing a judgment to writing is merely a ministerial act by which an enduring evidence of the judicial act is afforded. Stephens v. Henry S. Miller Co., 667 S.W.2d 250, 252 (Tex.App—Dallas 1984, writ dism’d by agreement); see also Gholson v. Thorn, 597 S.W.2d 568, 571 (Tex.Civ.App.—Dallas 1980, no writ). In this case, the trial court made only one judicial determination — that Jim had defaulted in the support payments that he was ordered to make, up to the date of the hearing. To attribute any significance to the separate instruments by which the trial court chose to document this one act of adjudication is to elevate form over substance, to emphasize the ministerial act of reducing a judgment to writing over the actual judicial act itself.

Finally, there can be only one final judgment entered in any cause. Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.—Corpus Christi 1981, no writ); TEX.R. CIV.P. 301. I recognize that a separate count of contempt might lie for each separate occasion on which Jim failed to make the ordered support payments, and that a determination that Jim is in contempt for failing to make past due support payments does not bar later action for contempt if he *701should fail to make further payments in the future. In this case, however, a single motion for contempt is involved, with a single hearing on the motion. There is therefore only a single proceeding, and it follows that only a single judgment can result, no matter how many different instruments are used to reduce it to writing.

I conclude, therefore, that the two purportedly separate orders of January 12, 1987, reflect a single, inseverable judgment. It seems also clear that, in order to purge himself of contempt and be released, Jim must pay a total of $3,709 — the arrear-age of $3,109 required to be paid by the first enforcement order, and the arrearage of $600 required to be paid by the second. In short, the one judgment requires that Jim purge himself by paying one amount.

I agree with the majority that the contempt order requiring Jim to purge himself by paying arrearages that had not accrued as of the date of Brenda’s motion is void; for the reasons stated above, I cannot agree that that order does not affect the validity of the other contempt order. Because there is really only one judgment (which requires Jim to pay the entire amount of arrearage accrued on the hearing date), the judgment in its entirety must be either valid or void. In Ex parte Davila, 718 S.W.2d 281 (Tex.1986), the Supreme Court of Texas held that, when a contem-ner was required to pay a specified lump sum to purge himself of contempt, and when that lump sum “plainly include[d] amounts which could not be the basis of a contempt finding at the time of the hearing, the entire judgment is tainted.” 718 S.W.2d at 282. See also Ex parte Oebel, 635 S.W.2d 454, 456 (Tex.App.—San Antonio 1982, orig. proceeding). I would conclude, therefore, that the contempt judgment, and Jim’s confinement pursuant to that contempt judgment, is void in its entirety.

I would therefore decline to deduct an amount, invalidly ordered, from the total amount of the purgative payment imposed by the single contempt judgment. In my view, any amount of the total purgative payment that is void cannot be severed, as the majority holds, from the entire amount that a contemner is ordered to pay to purge himself. Because this case involves only one judgment, and because a portion of that judgment is indisputedly void, the entire judgment of contempt should fall.

Accordingly, I respectfully dissent. I would grant the application for writ of habeas corpus by relator Jim M. Conoly and order him unconditionally discharged from the custody of the sheriff of Dallas County.