Douglas Ray Krone v. Doris June Krone--Appeal from 143rd District Court of Ward County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DOUGLAS RAY KRONE, )

) No. 08-03-00144-CV

Appellant, )

) Appeal from the

v. )

) 143rd District Court

DORIS JUNE KRONE, )

) of Ward County, Texas

Appellee. )

) (TC# 90-05-16182-CVW)

MEMORANDUM OPINION

This is an appeal from an order holding Appellant Douglas Ray Krone in contempt for failing to provide meaningful and continuous health care coverage for the children. In his sole issue for review, Mr. Krone contends there was insufficient evidence to support the trial court=s finding that he failed to provide continuous heath care coverage and its further finding of contempt. Alternatively, Mr. Krone asserts that there was evidence to support his affirmative defense to the allegation of contempt based on his inability to pay. We dismiss the appeal for want of jurisdiction.

Mr. Krone and Appellee Doris June Krone were married in June 1981 and divorced in September 1990. There are two children of the marriage. On November 28, 2000, the trial court signed a Nunc Pro Tunc Order modifying the final divorce decree on child support to include several retroactive provisions addressing provision of health insurance coverage for the children and payment of their uninsured medical expenses. Under these provisions, Mr. Krone was responsible for providing and paying for health insurance for the children. On November 20, 2002, Ms. Krone filed a motion for enforcement and a judgment for arrearages based on Mr. Krone=s alleged failure to pay child support and failure to provide health insurance coverage for the children. The trial court held a hearing on Ms. Krone=s motions on February 19, 2003, and rendered an order of enforcement and a judgment for arrearages. With respect to the enforcement order at issue in this appeal, the trial court found that Mr. Krone had failed to comply with and had violated the health insurance provisions by failing to continuously provide meaningful and continuous health care coverage for the children. The trial court held Mr. Krone in contempt for the violation, assessed punishment at a fine of $500, and confinement in the Ward County Jail for a period of six months or until the fine was paid in full. The trial court, however, suspended imposition of commitment and the fine and placed Mr. Krone on community supervision for a period of sixty months beginning on the date the order was rendered conditioned upon Mr. Krone complying with certain terms and conditions.

The validity of a contempt order cannot be attacked by direct appeal, but rather the party attacking the order must apply for a writ of habeas corpus. Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985); Metzger v. Sebek, 892 S.W.2d 20, 54-6 (Tex.App. Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868, 116 S. Ct. 186, 133 L. Ed. 2d 124 (1995); but see Deramus v. Thornton, 160 Tex. 494, 499, 333 S.W.2d 824, 827 (Tex. 1960)(stating that conditions may arise in contempt matters in which a writ of habeas corpus would not be adequate and thus, mandamus relief would be the proper remedy). Although actual confinement is the typical restraint of liberty for habeas purposes, some courts have extended the meaning to include certain conditions of probation beyond mere payment of the underlying obligation that constitute a tangible restraint of liberty. See Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990); In re Pierre, 50 S.W.3d 554, 558 (Tex.App.--El Paso 2001, orig. proceeding). We made no judgment as to whether or not Mr. Krone=s circumstances constitute such a restraint. On appeal, Mr. Krone has not challenged the judgment on arrearages, which was rendered in the same proceeding as the contempt order. Since the only issue presented on appeal is a challenge to the contempt order, we conclude that we have no jurisdiction to consider the appeal.

Accordingly, we dismiss the appeal for want of jurisdiction.

June 10, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.