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In re Decker

Court of Appeals of Texas, Sixth District, Texarkana

April 6, 2017

IN RE BRAD STEVEN DECKER

          Submitted: April 5, 2017

         Original Habeas Proceeding

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         After exercising his right, under the Fifth Amendment of the United States Constitution, to refuse to answer questions posed to him in court, Brad Steven Decker has been held in civil and criminal contempt for violating trial court orders by withdrawing retirement-account funds previously awarded to his ex-wife, Tamra Decker. Brad has petitioned for a writ of habeas corpus, [1]arguing that the criminal contempt is not supported by the evidence, that the criminal contempt is invalid due to the insufficiency of the language of the court's orders, and that the civil contempt is invalid for lack of notice that civil contempt was being sought.

         We reverse the order of criminal contempt, but affirm the order of civil contempt, because (1) as to criminal contempt, there is insufficient evidence that Brad violated the court's orders, and (2) Brad was on notice that civil contempt was being sought.

         Before finding Brad in contempt, the trial court had entered a final decree ending Tamra and Brad's marriage. In the decree, the trial court had awarded Tamra all of the funds in a particular retirement account, "the 401(k) plan existing by reason of [Brad's] employment with Southwestern Bell Telephone Co. and/or AT&T, Inc. through Fidelity [Investments], Account No. AT&T SSP(20021)." Evidence shows that, at some point between August 2015 and the final divorce in July 2016, there had been $101, 875.51 in the retirement account. However, about three months after the divorce, when a Qualified Domestic Relations Order (QDRO), rolling the funds into a retirement account in Tamra's name, had been entered October 21, 2016, there remained in the retirement account only $6, 606.18. As a result, the trial court found Brad in civil and criminal contempt.

         (1) As to Criminal Contempt, There Is Insufficient Evidence that Brad Violated the Court's Orders

         Brad argues that the criminal contempt is void, because the evidence failed to establish that he had violated the temporary injunction or the orders contained in the divorce decree and because the underlying decree's language was insufficient to support contempt. We agree that the evidence is insufficient to prove a violation supporting criminal contempt.

         Tamra's enforcement action alleged that Brad had withdrawn funds from the retirement account and that, in doing so, he violated the trial court's temporary orders and the divorce decree.

         The temporary orders-in place from October 2, 2014, until the divorce decree in July 2016- stated in relevant part:

IT IS ORDERED that Petitioner and Respondent are enjoined from:
Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.
. . . .
Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order.
Withdrawing or borrowing in any manner for any purpose from any retirement, profitsharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order.

         The divorce decree awarded the retirement account to Tamra and ordered (a) that, in the absence of a Qualified Domestic Relations Order, Brad was the constructive trustee for Tamra's retirement benefits in the account and (b) that, if he received any benefits from the retirement account, he "shall immediately forward" them to Tamra.

         Brad was served with notice of the show-cause hearing and subpoenaed to appear and provide the following: "Any and all documents concerning the 401k Plan at AT&T. Any and all documents concerning any withdrawal, loan or any other transaction on the 401k Plan. Any and all proceeds received from the 401k Plan." Brad appeared at the hearing, but he asserted his Fifth Amendment privilege and refused to produce the documents.[2] When Brad was called as a witness, he likewise invoked his Fifth Amendment rights and refused to answer each of the questions posed to him. Among the questions asked were the following, to each of which Brad asserted his Fifth Amendment right not to answer:

[In April, 2015], [y]ou testified by deposition that you had approximately $100, 000 in your 401(k) as of the date of ...

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