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Habeas granted - no jail for failure to pay a debt

The Dallas court of appeals granted the petition for writ of habeas corpus this week in a case where a lady was jailed for civil contempt of court for failure to pay a debt to her ex-husband. In the divorce decree, the wife was ordered to pay $40,000 to the husband as part of the property division contained in the decree. The specific terms of the property awarded referenced the obligation as a “debt” but ordered a date specific by which she was to make the payment. The day after the passing of the payment deadline, the ex-husband filed for contempt of court against the ex-wife for nonpayment. The Hunt County judge held her in civil contempt and ordered her to jail until she paid the $40,000.

Michelle O’Neil of O’Neil Wysocki filed the emergency petition for writ of habeas corpus with the Dallas court of appeals on behalf of the ex-wife. The Dallas court immediately granted bond and ordered the ex-wife released from jail. All total, she spent 4 nights in jail.

The Dallas court of appeals then granted the petition for writ of habeas corpus, vacating the Hunt County contempt order. The court examined three legal principles:

1. The constitutional prohibition against imprisonment for a debt – article I, section 18 of the Texas Constitution;

2. Texas Family Code section 9.012(a), which provides for enforcement by contempt of an order requiring the delivery of specific property or an award of a right to future property; and,

3. Texas Family Code section 9.012(b), which disallows contempt enforcement of an award of a sum of money in the nature of a debt unless the sum of money existed at the time the decree was entered or was a matured right to future payments.

Not every obligation to pay money in the future is a “debt”. A payment of money to be made in the future is not “debt”, according to the court of appeals, if it represents the former spouse’s share of a specific fund, including a matured right to payments, which are community property and in existence at the time the divorce decree was rendered. For an award of money in a divorce decree to be enforceable by contempt, “the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”

In this case, the ex-husband argued that ex-wife had access to separate property to meet the obligation, but the Dallas court of appeals rejected this argument because the divorce court cannot divest someone of separate property.

So, the Dallas court of appeals concluded that the Hunt County Judge imprisoned the ex-wife for nonpayment of a debt in violation of the Texas Constitution, the contempt order was vacated and she was released and discharged from custody.

Hat tip to Betsy Branch of the Branch Law Firm in Rockwall Texas for the stellar job she did in representing the ex-wife at the trial court level and in fighting tooth and nail to protect her client’s constitutional rights under attack. If you need a great, board certified family law attorney in Rockwall, you should call her.

Read the court’s full opinion in In re Kinney here.