Habeas Corpus Proceeding
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE.
an original habeas corpus proceeding. See Tex. R.
App. P. 52; see also Tex. Gov't Code Ann. §
22.221(d) (West 2004). Relator, Neal Loeppky, seeks relief
from a contempt order that was issued by the Hon. Carter T.
Schildknecht to enforce a provision contained in a divorce
decree. In the petition, Relator presents three issues and
asks that this court declare the trial court's contempt
order to be void. We grant habeas corpus relief.
and the real party in interest, Elizabeth Klassen Loeppky,
divorced in 2013. The trial court conducted a bench trial and
subsequently entered a final decree of divorce in which the
court endeavored to divide the marital estate in a just and
right manner. Relator was awarded the couple's real
property. Elizabeth was awarded the following:
IT IS ORDERED that within a reasonable time, ELIZABETH
KLASSEN LOEPPKY shall select a Gaines County residence and
property equivalent to the prior marital home with a fair
market value of approximately $175, 000.00 or less, as
selected by ELIZABETH KLASSEN LOEPPKY. Upon ELIZABETH KLASSEN
LOEPPKY providing information required for the purchase of
said property to NEAL LOEPPKY, NEAL LOEPPKY shall take the
steps necessary to complete the purchase of the home and
property whether by cash, mortgage, or other financing within
a reasonable time. Notwithstanding NEAL LOEPPKY's duty to
purchase, secure financing and/or mortgage, or whether NEAL
LOEPPKY is named on title to the residence and/or property
for purposes of completing the purchase, the Gaines County
home and property shall be the sole and separate property of
ELIZABETH KLASSEN LOEPPKY for her exclusive use, benefit,
management, and control.
IT IS ORDERED that NEAL LOEPPKY shall purchase the above said
residence so long as it is appropriate and meets the
requirements as listed above.
Elizabeth found a residence that met the requirements of the
divorce decree and signed a contract on the residence,
Relator failed to purchase the residence. Elizabeth
subsequently filed a petition for enforcement of the property
division by contempt. Relator was served with a citation and
given notice of the hearing. Relator failed to appear, and a
hearing was conducted in his absence. At the end of the
hearing, the trial court held Relator in contempt for his
failure to comply with the above-quoted provision of the
divorce decree. The trial court ordered that Relator be
confined in the Gaines County jail for a period not to exceed
eighteen months or until he has posted a cash bond of $175,
000 to be remitted to Elizabeth. We note that Relator has not
been jailed as a result of the contempt order and that we
previously entered an order in which we set a reasonable bond
pending the outcome of this habeas corpus proceeding.
See Tex. R. App. P. 52.8(b)(3).
contends that the contempt order is void because it was
issued in violation of his right to due process; he presents
the following three reasons: (1) he was tried in absentia;
(2) the provision in the divorce decree lacked sufficient
specificity to be enforceable; and (3) the evidence at the
hearing failed to show that he violated the divorce decree.
We find Relator's first contention to have merit and,
therefore, do not reach the second and third contentions.
court may not hold a person in contempt of court in absentia,
regardless of whether the sanction imposed is coercive or
punitive. Ex parte Alloju, 907 S.W.2d 486, 487 (Tex.
1995). Rather than proceeding with a contempt hearing in an
alleged contemnor's absence, the trial court should issue
a capias or writ of attachment to bring the alleged contemnor
before the court. Id.; Ex parte Johnson,
654 S.W.2d 415, 422 (Tex. 1983). In the present case, Relator
did not appear at the contempt hearing, nor was he
represented at the hearing by an attorney. Additionally,
nothing in the record indicates that Relator waived his right
to be present. Because Relator was held in contempt in
absentia, his right to due process was violated; therefore,
the contempt order cannot stand. Johnson, 654 S.W.2d
at 422; see Alloju, 907 S.W.2d at 487.
we grant Relator's petition for writ of habeas corpus,
order that Relator be released from the bond set by this
court on November 1, 2016, and order that Relator be
discharged from custody or the threat of custody based upon