In re James Thomas Smith, III--Appeal from 38th Judicial District Court of Uvalde County

PER CURIAM

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 21, 2008

PETITION FOR WRIT OF MANDAMUS DENIED Relator James Thomas Smith, III, seeks a writ of mandamus directing the trial court to vacate an order holding him in contempt for violating a temporary order in his divorce proceeding. We deny the requested relief.

Background

On June 7, 2007, the trial court ordered James to pay temporary spousal support in the amount of $2,400.00 per month to his wife Rebecca Sue Smith. James, who had failed to appear at the June 7, 2007 hearing, moved to amend the temporary order. Thereafter, the trial court ordered James to "pay to Rebecca [] as temporary spousal support $1800.00 per month" pursuant to an agreed amended temporary order. The agreed amended temporary order was "approved and consented to as to both form and substance" by James and stated "[t]he parties have agreed to the terms of this order as evidenced by the signatures below." (2)

On October 9, 2007, Rebecca filed a motion to enforce the temporary spousal support orders. The trial court held a hearing on the motion to enforce and found James in contempt for failing to make the spousal support payments as ordered. The trial court found James had made one monthly payment as ordered, but had paid no other amounts. The trial court entered a judgment for the past due support and found James in contempt, but it did not order punishment by confinement. James then filed a mandamus petition in this court, arguing the agreed amended temporary order is unenforceable by contempt.Standard of Review and Applicable Law

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); In re Garza, 126 S.W.3d 268, 270 (Tex. App.--San Antonio 2003, orig. proceeding [mand. denied]). A trial court that holds a party in contempt for violating a void order necessarily abuses its discretion. Ex parte Shaffer, 649 S.W.2d 300, 301-02 (Tex. 1983); In re Garza, 126 S.W.3d at 270. An order is void only when it is apparent that the court rendering the order had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is by writ of mandamus. Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); In re Garza, 126 S.W.3d at 270.

While a suit for the dissolution of a marriage is pending, a trial court may make temporary orders, including an order requiring one spouse to make payments to temporarily support the other spouse. Tex. Fam. Code Ann. 6.502(a)(2) (Vernon 2006). The violation of a temporary order made under section 6.502(a)(2) is punishable by contempt. Tex. Fam. Code Ann. 6.506 (Vernon 2006).

Discussion

James contends the agreed amended temporary order is void because it requires him to pay spousal support from his veteran's and social security disability benefits in violation of federal law. James argues this case falls squarely under the authority of Ex parte Burson, 615 S.W.2d 192, 196 (Tex. 1981) (state divorce court could not require the payment of veteran's administration benefits to a former spouse), and Richard v. Richard, 659 S.W.2d 746, 749 (Tex. App.--Tyler 1983, no writ) (state divorce court could not order the payment of social security benefits to a former spouse).We disagree. Both Burson and Richard involved final divorce decrees which ordered the payment of federal benefits to former spouses in violation of federal law. See Burson, 615 S.W.2d at 196; Richard, 659 S.W.2d at 749. Here, the agreed amended temporary order does not order James to pay the temporary spousal support to Rebecca out of his veteran's or social security disability benefits.

James further argues the temporary order impliedly orders him to pay the temporary spousal support from his federal benefits because he has no other income. James supports his argument by reference to a financial statement filed by Rebecca. Nevertheless, James did not offer this financial statement into evidence at the contempt hearing, nor did he testify or offer any other evidence to establish his financial resources. Given the evidence before the trial court, we cannot say the trial court abused its discretion in enforcing the agreed amended temporary order.

James next argues the agreed amended temporary order is unenforceable because it is in "direct contradiction to" section 8.055 of the Texas Family Code, which requires the trial court to exclude certain veteran's and social security disability benefits when setting the amount of spousal maintenance. Tex. Fam. Code Ann. 8.055(c),(d) (Vernon 2006). Again, we disagree. The present case involves temporary spousal support authorized by section 6.502(a)(2) of the Texas Family Code, not post-divorce spousal maintenance authorized by Chapter 8 of the Texas Family Code. See Teixeira v. Teixeira, 2004 WL 1835738, at *2 (Tex. App.--San Antonio 2004, no pet.) (discussing Chapter 6 and Chapter 8 of the Texas Family Code as distinct statutory schemes).

We conclude the trial court did not abuse its discretion in enforcing the agreed amended temporary order by contempt. Accordingly, the petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

PER CURIAM

1. This proceeding arises out of Cause No. 07-05-25856-CV, styled In the Matter of the Marriage of Rebecca Sue Smith and James Thomas Smith, III, pending in the 38th Judicial District Court, Uvalde County, Texas, the Honorable Mickey R. Pennington presiding. However, the challenged contempt order was signed by the Honorable James M. Simmonds, visiting judge.

2. James erroneously asserts this language does not appear in the agreed amended temporary order.