Court of Appeals abates appeal and sends case back to the trial court to decide whether to suspend enforcement of child support arrears judgment and whether to require posting of a supersedeas bond or impose other conditions.
Inman v. Bryant, No. 03-08-00177-CV (Tex.App. - Austin, May 16, 2008)(Opinion by Justice Puryear) (SAPCR appeal, child support enforcement, abatement, suspension of judgment, supersedeas bond) (Before Justices Patterson, Puryear and Henson)
Gerald Wayne Inman v. Sherry Ann Bryant--Appeal from 426th District Court of Bell County
Appeal from 426th District Court of Bell County
M E M O R A N D U M O P I N I O N
The trial court signed an order awarding appellee Sherry Ann Bryan almost $30,000 in child support arrearages from appellant Gerald Wayne Inman. Appellant, who is representing himself pro se, timely filed a notice of appeal and affidavit of indigence on March 14, 2008. Two weeks later, he filed a motion in this Court asking us to suspend the enforcement of the judgment, citing rule 24.2 of the rules of appellate procedure and arguing that he is entitled to suspension of the judgment without the need to post a supersedeas bond. See Tex. R. App. P. 24.2(a)(1) (to suspend judgment for money, bond must equal money award plus interest and costs, but may not exceed lesser of $25 million or 50% of judgment debtor's net worth). Appellee has filed a response asserting that the trial court has sole jurisdiction to determine the sufficiency of supersedeas and whether the bond amount should be reduced.
Appellant has since filed a motion asking for an extension time to pay his filing fees and again asking us to suspend the judgment. In this motion, he explains that the court reporter filed a contest to his affidavit of indigence and that, after a hearing, the court signed an order sustaining the contest and denying appellant's request for a free record. Appellant asserts that he did not receive notice of the contest and hearing on the contest until nearly two weeks after the contest was filed and three days after the trial court signed its order. He filed a motion in the trial court asking for a new hearing on the contest; the record does not reflect whether the trial court has acted on that motion.
We agree with appellee that the trial court is the proper court to determine whether the judgment should be suspended. See Tex. Fam. Code Ann. § 109.002(c) (West 2002) (appeal from final SAPCR order does not stay order unless trial court orders suspension "with or without a supersedeas bond").
We therefore abate the appeal until June 30, 2008, and remand it to the trial court to determine whether the judgment should be suspended and if so, under what conditions.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: May 16, 2008
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1 comment:
I am not an attorney and this is not legal advice.
Perhaps the most important issue here isn't which court should suspend judgment, but the fact that there is no remedy by direct appeal available to this fellow.
Justice Puryear gives appellant the benefit of the doubt by characterizing the appeal as an appeal of a final SAPCR decree.
From the $30,000 arrearage award, it seems that the trial proceedings were more likely in the manner of contempt (enforcement).
Orders arising from contempt proceedings are not appealable, even if a party seeks to appeal an appealable judgment that is incorporated in such an order. Galtex Property Investors, Inc. v. City of Galveston, 113 S.W.3d 922, 929 (Tex. App.--Houston [14th Dist.] 2003, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 54 (Tex. App.--Houston [1st Dist.] 1994, writ denied).
Furthermore, if the guy wasn't immediately hauled off to jail, the commitment for contempt was suspended. Accordingly, the order was not an "order of enforcement" nor an "order of contempt" nor an "order of committment", but rather, a "Probation of Contempt Order", or 'POCO' as I refer to them.
"the suspension of commitment order [is not] an order of contempt, or, as the Legislature refers to it in the Texas Family Code, an 'enforcement order'[...] [T]he two are different. See Tex. Fam. Code Ann. § 157.166(a),(b) (Vernon 2002). [...]
[A] suspension of commitment order or, as the Legislature refers to it, a 'probation of contempt order' presupposes a finding of contempt. See Tex. Fam. Code Ann. § 157.165 (Vernon 2002)." In re Thomas, No. 01-07-00440-CV (Tex.App. Dist.1 03/18/2008)
Coincidentally, in Thomas, the court found that the POCO could not be challenged via Habeas Corpus because the order committing him to jail was suspended. (and therefore, his liberty was not "restrained"). ...yet. I suppose this could be characterized as a "ripeness" opinion.
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