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 & Attorneys 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.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.