In Re: Lan-Shing Jih--Appeal from 247th District Court of Harris County

Petition for Writ of Habeas Corpus Denied and Opinion filed November 17, 2003

Petition for Writ of Habeas Corpus Denied and Opinion filed November 17, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-01184-CV

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IN RE LAN-SHING JIH, Relator

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

M E M O R A N D U M O P I N I O N

On October 27, 2003, relator, Lan-Shing Jih, filed a petition for writ of habeas corpus. See Tex. Gov=t Code Ann. ' 22.221(d) (Vernon Supp. 2000); Tex. R. App. P. 52. Because we find the trial court improperly held relator in contempt for failure to pay attorney=s fees, we reform the trial court=s contempt and commitment orders to strike those portions of the orders that require payment of attorney=s fees. Because we find no merit in relator=s remaining challenges, we deny the petition for writ of habeas corpus.

Relator filed for divorce against her husband, Wen-Hsien Lo, on October 4, 2000. From April 12, 2001 to December 11, 2002, the trial judge issued three orders instructing relator (1) not to withdraw money from the parties= joint accounts without permission from the court, (2) to pay $15,000 to Lo for discovery costs, and (3) to return control of several community assets. On March 17, 2003, without complying with the above orders, relator filed a voluntary petition in bankruptcy. On July 19, 2003, the bankruptcy court lifted the bankruptcy stay with regard to the pending divorce action. The order noted that distribution of non-exempt assets must be approved by the bankruptcy trustee.

On September 2, 2003, the trial court issued a show cause order directing relator to (1) pay the $15,000 owed to Lo, (2) return control of community estate assets, (3) return assets, business accounts and files that belong to Best Services, and (4) deliver sales proceeds from mortgage notes held by both parties. The order also enjoined relator from making withdrawals from the couple=s joint checking accounts. On October 15, 2003, the trial court found that relator did not comply with the show cause order and ordered her committed to the county jail for failure to comply with the court=s orders and for failure to pay attorney=s fees of $6275.00.

Relator contends the contempt order improperly attempts to enforce payment of attorney=s fees through contempt. The trial court found relator in contempt for failure to pay $15,000 in discovery costs and $6275.00 in attorney=s fees. At a hearing held on December 3, 2002, the trial court assessed the $15,000 as attorney=s fees. A trial court cannot allow collection of attorney=s fees by contempt proceedings except in cases where child support is ordered. See Ex parte Roan, 887 S.W.2d 462, 464 (Tex. App.CDallas 1994, orig. proceeding); Ex parte McManus, 589 S.W.2d 790, 792 (Tex. Civ. App.CDallas 1979, orig. proceeding). Here, no child support was ordered. Therefore, the portions of the contempt order that find relator in contempt for failure to pay attorney=s fees are void. See Roan, 887 S.W.2d at 464.

The real parties in interest contend the attorney=s fees assessed are related to sanctions and costs of preserving the community estate. Lo contends the attorney=s fees can be assessed in a contempt order pursuant to Tex. R. Civ. P. 215.2(b)(6). Rule 215.2(b)(6), however, allows the trial court to sanction a party by Atreating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.@ Rule 215.2(b)(6) does not allow circumvention of the constitutional prohibition against imprisonment for debt. See Tex. Const. art. I, ' 18.

We find that certain portions of the contempt order are void. This court will issue a writ of habeas corpus if the contempt order is void because it deprives the relator of liberty without due process of law or because it was beyond the power of the court to issue. See Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996). The void provisions of the order, however, do not render the entire order void because the sentences are listed separately and capable of being severed from the valid portions of the order. When a trial court lists each failure to comply with an order separately and assesses a separate punishment for each failure to comply, only the invalid portion of the contempt order is void and the remainder of the contempt order is enforceable. See Ex parte Patillo, 32 S.W.3d 907, 910-11 (Tex. App.CCorpus Christi 2000, orig. proceeding). We find no merit in relator=s remaining issues.

Therefore, we deny relator=s petition for writ of habeas corpus, but strike the following portions of the contempt order:

1) Pay the sum of $15,000.00 directly to WEN HSIEN LO at the law office of John D. Payne P.O. Box 421527, Houston, Texas 77242-1527;

5) Pay the sum of $6275.00 directly to HEATHER F. HORWITZ, Attorney at Law, 801 Congress Avenue, Fourth Floor, Houston, Texas 77002[.]

PER CURIAM

Petition Denied and Memorandum Opinion filed November17, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.