Dissenting opinion issued August 2, 2018




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-17-00520-CV
                         ———————————
                 ADELINA MICHELLE CLINE, Appellant
                                     V.

                        JASON W. CLINE, Appellee


                  On Appeal from the 22nd District Court
                           Comal County, Texas
                    Trial Court Case No. C2012-0499A
                            DISSENTING OPINION

      This is an attempted appeal from an order enforcing a mother’s obligation to

pay $781.32 in child support by jailing her for 180 days. The mother, Adelina

Michelle Cline, was found in contempt of court on four separate counts, in each

case for failure to make a court-ordered child-support payment in the amount of

$195.33. She also was found indigent by the trial court, and a lawyer was

appointed to represent her at public expense.1

      The mother has attempted to appeal from the order committing her to jail on

the basis of her affirmative defense: she can’t afford to pay.2 The court dismisses

that part of her appeal, reasoning that contempt orders are unappealable. As noted

by the court, our prior precedent suggests the general unappealability of contempt




1
      The commitment order that the mother attempts to appeal ordered her to
      appear before the court to begin her jail sentence on August 30, 2017.
      Although the mother’s brief makes reference to her being jailed on May 24,
      2017, nothing in our record confirms whether she has actually served all,
      some, or none of the jail sentence.
2
      See TEX. FAM. CODE § 157.008(c) (“An obligor may plead as an affirmative
      defense to an allegation of contempt . . . that the obligor: (1) lacked the
      ability to provide support in the amount ordered; (2) lacked property that
      could be sold, mortgaged, or otherwise pledged to raise the funds needed;
      (3) attempted unsuccessfully to borrow the funds needed; and (4) knew of no
      source from which the money could have been borrowed or legally
      obtained.”).

                                         2
orders.3 Family Code section 109.002 authorizes an appeal from any “final order”

rendered under Title 5 of the Code, which governs suits affecting the parent-child

relationship. My research has not revealed any precedent of the Supreme Court of

Texas or of this court that squarely holds that a contempt order in a child-support

enforcement action does not qualify as such an appealable “final order” under the

current Family Code. Prior to the adoption of the recodified Family Code,

including section 109.002, our Supreme Court did hold in Norman v. Norman4 that

a court of appeals lacked jurisdiction to review an order that declined to hold a

father in contempt for child-support arrearages, applying section 14.09 of the then-

applicable version of the Family Code. The authority relied upon by Norman was

Wagner v. Warnasch,5 which stated the rule thus: “A judgment of a court




3
      E.g., Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.—Houston [1st Dist.]
      1994, writ denied); see also Jones v. Tex. State Attorney Gen., No. 01-03-
      00393-CV, 2003 WL 22054291, at *1 (Tex. App.—Houston [1st Dist.]
      Aug. 29, 2003, no pet.) (mem. op.) (in attempted appeal from contempt
      order arising from failure to pay child support, court notified appellant that
      the decision was “subject to attack only by petition for writ of habeas
      corpus,” then subsequently granted appellant’s motion to transform the
      appeal into a petition for writ of habeas corpus).
4
      692 S.W.2d 655 (Tex. 1985) (per curiam).
5
      295 S.W.2d 890 (Tex. 1956).

                                         3
convicting a person of contempt is not subject to revision in any other tribunal,

unless specially authorized by statute.”6

      At the time Wagner was decided, Texas statutes “made no provision for an

appeal from an adjudication and commitment for contempt, and none for review by

writ of error.”7    Since the relevant statutory authority has changed materially

since Wagner was decided in 1956 and Norman was decided in 1984, the

continuing viability of these authorities cannot be assumed. Thus, although the

Attorney General expressly relied on Norman in a letter sent to this court to

suggest a lack of jurisdiction in lieu of filing a brief, it is not apparent that Norman

is binding authority after the adoption of Title 5 of the Family Code effective

April 20, 1995.8 The relevant statutory authorization for an appeal at the time

Norman was decided provided: “An appeal may be taken by any party to a suit

affecting the parent-child relationship from an order, decree, or judgment . . .

entered under Chapter 14 of this code appointing or refusing to appoint a managing

conservator; appointing or refusing to appoint a possessory conservator; ordering

or refusing to order payments for support of a child; or modifying any such order



6
      Id. at 893 (quoting 9 Tex. Jur., Contempt § 45) (emphasis supplied).
7
      Id.
8
      Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113.

                                            4
previously entered . . . .”9 By contrast, the Family Code now authorizes appeals

from final orders in SAPCR cases in much broader terms: “An appeal may be

taken by any party to a suit from a final order rendered under this title.”10

      Our court tried to avoid this non-merits disposition of the mother’s issue by

notifying her lawyer about the jurisdictional issue and the availability of habeas

corpus or mandamus review as alternatives.11 In response, counsel insisted that the

contempt order was appealable and did not request that the challenge be considered

as a request for habeas corpus or mandamus relief. Counsel did not attempt to


9
      Act of May 25, 1973, 63rd Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws
      1411, 1419, and Act of May 26, 1983, 68th Leg., R.S., ch. 962, § 1, 1983
      Tex. Gen Laws 5233 (former Tex. Fam. Code § 11.19(b)(2)) (emphasis
      supplied); repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995
      Tex. Gen. Laws 113.
10
      TEX. FAM. CODE § 109.002(b); cf. Lehmann v. Har–Con Corp., 39 S.W.3d
      191, 195 (Tex. 2001) (“A judgment is final for purposes of appeal if it
      disposes of all pending parties and claims in the record, except as necessary
      to carry out the decree.”).
11
      Cf. CMH Homes v. Perez, 340 S.W.3d 444, 453-54 (Tex. 2011) (appellant
      who filed an appeal from an unappealable order was nevertheless entitled to
      have its appeal treated as a petition for writ of mandamus because it
      specifically requested mandamus relief and because requiring the filing of a
      separate document entitled “petition for writ of mandamus” would
      “unnecessarily waste the parties’ time and further judicial resources”); Jones
      v. Brelsford, 390 S.W.3d 486, 497 n.7 (Tex. App.—Houston [1st Dist.]
      2012, no pet.) (“in an appropriate case, we may treat an appeal as a petition
      for writ of mandamus, and an appellant who specifically requests that her
      appeal be treated as a mandamus petition invokes this Court’s original
      jurisdiction”).

                                           5
distinguish or otherwise address the authorities this court identified as being

relevant to the jurisdictional issue.12

      There has been no contest to the mother’s indigence, and rational actors who

could avoid spending half a year in jail by paying a debt of $781.32 would do so.

Moreover, the Texas Bill of Rights specifically forbids imprisoning a person for

debt.13 It would be far more efficient to fix the procedural deficiencies of this case

now so that the merits can be addressed, rather than requiring the appellant’s court-

appointed lawyer to start over with a new filing at public expense.

      In furtherance of our Supreme Court’s policy of treating “minor procedural

mishaps with leniency, preserving the right to appeal,”14 the court should have


12
      Our order referenced In re B.A.C., 144 S.W.3d 8, 11 (Tex. App.—Waco
      2004, no pet.), for the proposition that contempt findings are generally not
      appealable and are subject to challenge only by original proceeding, and
      Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001,
      pet. denied), for the proposition that “[a] contempt judgment is reviewable
      only via a petition for writ of habeas corpus (if the contemnor is confined) or
      a petition for writ of mandamus (if no confinement is involved).” Our order
      also referenced Family Code section 109.002(b), yet the mother has
      presented no argument that this statute authorizes an appeal in SAPCR cases
      as an exception to the general rule precluding appeal from a contempt order.
13
      TEX. CONST. art. I, § 18 (“No person shall ever be imprisoned for debt.”).
14
      Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per
      curiam); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)
      (“appellate courts should not dismiss an appeal for a procedural defect
      whenever any arguable interpretation of the Rules of Appellate Procedure
      would preserve the appeal”).

                                          6
exercised its authority to invite a satisfactory merits-based submission of the case

by   requesting    additional     briefing       addressing   the   mother’s   indigency

defense in the correct procedural form.15 Because the court fails to do so, I

respectfully dissent.




                                                   Michael Massengale
                                                   Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Justice Massengale, dissenting.




15
      See TEX. R. APP. P. 38.9(b) (“If the court determines, either before or after
      submission, that the case has not been properly presented in the briefs, or
      that the law and authorities have not been properly cited in the briefs, the
      court may postpone submission, require additional briefing, and make any
      other order necessary for a satisfactory submission of the case.”); see also St.
      John Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.—
      Dallas 2018, pet. filed) (en banc) (Schenck, J., dissenting) (discussing the
      authority of Rule 38.9(b) and the power of a court of appeals to request
      additional briefing to ensure a proper presentation of a case to facilitate a
      disposition on the merits).

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