Opinion filed April 20, 2017




                                       In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00322-CV
                                    __________

                               IN RE NEAL LOEPPKY


                        Original Habeas Corpus Proceeding


                      MEMORANDUM OPINION
       This is an original habeas corpus proceeding. See TEX. R. APP. P. 52; see also
TEX. GOV’T CODE ANN. § 22.221(d) (West 2004). Relator, Neal Loeppky, seeks
relief from a contempt order that was issued by the Hon. Carter T. Schildknecht to
enforce a provision contained in a divorce decree. In the petition, Relator presents
three issues and asks that this court declare the trial court’s contempt order to be
void. We grant habeas corpus relief.
                                  Background Facts
       Relator and the real party in interest, Elizabeth Klassen Loeppky, divorced in
2013. The trial court conducted a bench trial and subsequently entered a final decree
of divorce in which the court endeavored to divide the marital estate in a just and
right manner. Relator was awarded the couple’s real property. Elizabeth was
awarded the following:
              IT IS ORDERED that within a reasonable time, ELIZABETH
      KLASSEN LOEPPKY shall select a Gaines County residence and
      property equivalent to the prior marital home with a fair market value
      of approximately $175,000.00 or less, as selected by ELIZABETH
      KLASSEN LOEPPKY. Upon ELIZABETH KLASSEN LOEPPKY
      providing information required for the purchase of said property to
      NEAL LOEPPKY, NEAL LOEPPKY shall take the steps necessary to
      complete the purchase of the home and property whether by cash,
      mortgage, or other financing within a reasonable time.
      Notwithstanding NEAL LOEPPKY’s duty to purchase, secure
      financing and/or mortgage, or whether NEAL LOEPPKY is named on
      title to the residence and/or property for purposes of completing the
      purchase, the Gaines County home and property shall be the sole and
      separate property of ELIZABETH KLASSEN LOEPPKY for her
      exclusive use, benefit, management, and control.
            IT IS ORDERED that NEAL LOEPPKY shall purchase the
      above said residence so long as it is appropriate and meets the
      requirements as listed above.
      After Elizabeth found a residence that met the requirements of the divorce
decree and signed a contract on the residence, Relator failed to purchase the
residence. Elizabeth subsequently filed a petition for enforcement of the property
division by contempt. Relator was served with a citation and given notice of the
hearing. Relator failed to appear, and a hearing was conducted in his absence. At
the end of the hearing, the trial court held Relator in contempt for his failure to
comply with the above-quoted provision of the divorce decree. The trial court
ordered that Relator be confined in the Gaines County jail for a period not to exceed
eighteen months or until he has posted a cash bond of $175,000 to be remitted to
Elizabeth. We note that Relator has not been jailed as a result of the contempt order



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and that we previously entered an order in which we set a reasonable bond pending
the outcome of this habeas corpus proceeding. See TEX. R. APP. P. 52.8(b)(3).
                                                Analysis
        Relator contends that the contempt order is void because it was issued in
violation of his right to due process; he presents the following three reasons: (1) he
was tried in absentia; (2) the provision in the divorce decree lacked sufficient
specificity to be enforceable; and (3) the evidence at the hearing failed to show that
he violated the divorce decree. We find Relator’s first contention to have merit and,
therefore, do not reach the second and third contentions.
        A trial court may not hold a person in contempt of court in absentia, regardless
of whether the sanction imposed is coercive or punitive. Ex parte Alloju, 907 S.W.2d
486, 487 (Tex. 1995). Rather than proceeding with a contempt hearing in an alleged
contemnor’s absence, the trial court should issue a capias or writ of attachment to
bring the alleged contemnor before the court. Id.; Ex parte Johnson, 654 S.W.2d
415, 422 (Tex. 1983). In the present case, Relator did not appear at the contempt
hearing, nor was he represented at the hearing by an attorney. Additionally, nothing
in the record indicates that Relator waived his right to be present. Because Relator
was held in contempt in absentia, his right to due process was violated; therefore,
the contempt order cannot stand. Johnson, 654 S.W.2d at 422; see Alloju, 907
S.W.2d at 487.1




        1
        We note that Relator did not urge in his petition that the contempt order was void because it ordered
him to be confined for a debt. However, because we have granted relief for the sole reason that Relator
was held in contempt in absentia, we direct the parties’ attention to In re Henry, 154 S.W.3d 594, 596–98
(Tex. 2005), in which the supreme court held that a divorce-decree obligation to pay a debt was not
enforceable by confinement for contempt.



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                                   This Court’s Ruling
      Accordingly, we grant Relator’s petition for writ of habeas corpus, order that
Relator be released from the bond set by this court on November 1, 2016, and order
that Relator be discharged from custody or the threat of custody based upon the
underlying contempt order. See TEX. R. APP. P. 52.8(c); GOV’T § 22.221(d).




                                                     JOHN M. BAILEY
                                                     JUSTICE


April 20, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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