This is a continuation of a domestic relations dispute between Alton Choate and his
Alton has invoked our original jurisdiction seeking relief from an order adjudging him to be in contempt of court for the violation of several provisions in a final decree of divorce.
The nunc pro tunc judgment which partitioned the community property—after the granting of the divorce—became final because no appeal was perfected therefrom. This judgment contained several paragraphs material to our disposition of this cause, the decretal paragraph containing these provisions:
It was ordered further that Juanita's firm of attorneys "be and is hereby awarded the sum of $3,750.00 for legal services rendered. Said judgment is hereby awarded against Respondent, Alton Choate, for which let execution issue."
Another paragraph read:
Finally, all costs were adjudged against our Relator "for which let execution issue."
After this judgment became final, Juanita filed her motion seeking an order holding Alton in contempt of court for his failure and refusal to comply with the terms of the decree. After notice, a hearing was held wherein Alton, represented by counsel, was called as an adverse witness.
We will consider each of the adjudications separately. As to the first, we point out that it contains two separate acts on the part of Relator:
We note that even in the contempt order authorizing the imprisonment, there is no description of the particular action required of Alton. He is imprisoned until he signs the "required instruments". Moreover, this order can have as its base only the language in the decree requiring the parties to "execute all instruments necessary to accomplish final execution and disposition of this judgment."
We are of the opinion that the first section of the order holding Alton in contempt is void. Neither the judgment nor the order holding him in contempt spelled out specifically just what Alton was to sign.
In Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967), the Court reviewed the cases on the subject and held:
Slavin has been followed by many courts and its basic holding has not been challenged.
Indeed, it was followed in Ex parte Carpenter, 566 S.W.2d 123, 124 (Tex.Civ.App.— Houston [14th Dist.] 1978, original proceedings), where the relator was adjudged in contempt for failure to comply with a decree requiring that he "timely pay" medical expenses, the court holding:
Alton can secure his release only by signing the "required instruments" and this is as vague and indefinite as the Boy Scouts' motto, "Be Prepared." The words of the judgment and the contempt order are so vague and imprecise that the order of incarceration is void as to the first finding and adjudication.
We also note that our Supreme Court in Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1 (1959), discharged an applicant who had been found guilty of contempt of court for failure to deliver certain shares of stock in an oil company to his former wife in accordance with the divorce decree. It was held that the trial court lacked authority to enforce its judgment by contempt proceedings. For this additional reason, such order of commitment is void.
Under the same line of authorities, and for the same reasons, the second adjudication —requiring Alton to "[s]ign and execute a deed" to the home place—is void. It is readily apparent that no particular type of deed is mentioned. Would compliance be attained by delivery of a quitclaim deed?—Or perhaps, by a special warranty deed? Or, is Alton required to execute a general warranty deed when there may be an outstanding purchase money lien on the property? Again, as noted earlier, the command is imprecise and vague—and, more importantly, void.
In fairness to the parties, we call attention to this language used in Schwartz v. Jefferson, 520 S.W.2d 881, 888 (Tex.1975):
The third and fourth adjudications have common deficiencies: each is based upon language in the original decree which ordered the costs of court and attorney's fees adjudged against Alton, and in each instance the decree ordered execution to issue. Chief Justice Greenhill, in his article entitled "Habeas Corpus Proceedings in the Supreme Court of Texas", 1 St. Mary's L.J. 1, 12-13 (1969), used these words:
The portion of the order holding Alton in contempt for failure to pay Juanita's attorney's fees is void under the holding in Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 525-526 (1961), where the Court held:
Accord, McCauley v. McCauley, 374 S.W.2d 719, 723 (Tex.Civ.App.—Waco 1964, writ dism'd).
There was no showing made that the attorneys' fees or court costs were payable out of property in possession of Alton at the time of the entry of the nunc pro tunc judgment. To allow such enforcement by imprisonment for contempt would amount to imprisonment for debt in violation of Tex.Const. art. I, § 18. Ex parte Duncan, 462 S.W.2d 336, 338 (Tex.Civ.App.—Houston [1st Dist.] 1970, original proceedings). Cf. Ex parte Harwell, 538 S.W.2d 667, 671 (Tex.Civ.App.—Waco 1976, original proceedings).
In habeas corpus proceedings, we are limited to a determination of whether or not the order of commitment is void. Ex parte Hosken, supra (480 S.W.2d at 20), and authorities therein cited. Having held the order void as to each of the four separate adjudications, we forego a discussion of all other questions apparent on the face of the record.
It is the order of this Court that our Relator, Alton Choate, be discharged from compliance with the contempt judgment entered on the 12th day of April, 1979; and that the sureties be released from all liability upon his appearance bond. Ex parte Filemyr, 509 S.W.2d 731, 734 (Tex.Civ.App. —Austin 1974, original proceedings).