Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 5, 2017
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice.
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, 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.
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
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
As to Criminal Contempt, There Is Insufficient Evidence
that Brad Violated the Court's Orders
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
enforcement action alleged that Brad had withdrawn funds from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.
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
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.
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.
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. 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 ...