Court of Appeals of Texas, Amarillo.

In re Randy RANGEL.

No. 07-99-0284-CV.

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Oct. 12, 1999.

Before BOYD, C.J., JOHNSON, J., and REYNOLDS, S.J.^*

OPINION

REYNOLDS.

*1 By this original habeas corpus proceeding, relator Randy Rangel seeks his release from confinement, which was ordered by the 222nd District Court of Deaf Smith County upon finding relator in contempt for failure to make payments for the support of his minor child as required by the court’s 4 August 1998 decree in a suit affecting the parent-child relationship. When relator filed his petition, we granted the writ and provided an amount of bond for his release from custody pending our decision. Now, on the rationale expressed, we will order relator discharged.

In the suit affecting the parent-child relationship, relator, who defaulted, was found by the court to be the father of a child born to Yolanda Gonzalez. Relator was ordered by the court via the rendered decree to make payments of $250 payable on the first day of each month beginning 1 August 1998 for the support of the minor child. In addition, the court found that relator owed Gonzalez the sum of $22,650 for child support arrearage which had accrued since the child’s birth, the sum of $17,214 for prejudgment interest on the accrued amount, and postjudgment interest on the $22,650 at the rate of 12% per annum from 31 July 1998 until paid, for which the court rendered judgment. The court ordered relator to pay Gonzalez the sum of $276.50 per month, beginning 1 August 1998, to be applied to the accrued interest and then against the unpaid principle amount until paid in full.

At a 24 June 1999 hearing on a 17 March 1999 show cause order, the court found that relator failed to obey the 4 August 1998 decree in that he failed to make the ordered child support payments of $250 per month from 1 August 1998 through 1 February 1999 for a total of $1750, and the arrearage of $276.50 per month for the same period of time for a total of $1935.50, a total arrearage of $3,685.50. The court also found that relator was able to pay child support in the amounts and on the dates ordered, that he was in contempt for failing to pay the full amount on each of the payment dates, and that on the day of the hearing, relator had the ability to comply with the court’s order by paying the child support and arrearages.

The court’s findings were made from a record beginning with the court’s taking notice of the file, which included the clerk’s certification that no child support payments had been made since the entry of the final decree. The testimony of relator and his mother, Linda Rangel, completed the record.

It was the testimony of relator that he was in jail when the 4 August 1998 decree was rendered, and he did not have notice of his obligation to pay child support until after he was released, probably in August. He worked seven or eight years earlier until he was injured, which resulted in surgery of the medial collateral ligaments and rehabilitation with the cessation of workers compensation benefits. Since then, the only other and last employment he had was part-time employment at Cathy Fullingim Hardware in Amarillo at the end of winter of 1998. He worked four hours a day and was paid $5.75 an hour. The employment lasted approximately five weeks because his physical condition would not allow him “to pull the orders,” which entailed handling hardware equipment and accessories as well as one-hundred-twenty-pound bags of cement. Occasionally, he will “wet sand” a car for a neighbor or his brother-in-law, a forty-five to ninety minutes task for which he charges $60.

*2 On the day of the hearing, relator was scheduled for an appointment with Dr. Aubrey L. Smith, an orthopaedic surgeon, which was secured after a fifty-six day waiting period; but, because of the hearing, the appointment had to be rescheduled for 17 July 1999, the earliest he could be seen by the doctor, which was documented. He named Dr. Aubrey L. Smith as the orthopaedic surgeon, Dr. Remer who had looked at his back, and Texas Rehabilitation Center where he received physical therapy.

Relator is unemployed. He has no money in either a checking or savings account, has no credit at all, does not own an automobile, and last filed an income tax return seven or eight years ago. He applied for social security about one month earlier and “sent for all of my back payments so that I could prove that I have not had a job.” He is married, his wife has a job which is the sole support of the family, and he has no other children. He is scheduled for retraining and, professing a desire to pay the child support if he had the money, vowed to do so when he is retrained and receives weekly checks.

Relator’s mother, Linda Rangel, testified that he lives rent free in one of her houses because he has no money to pay the rent. Other than the sporadic work he does for neighbors or relatives, he has no guaranteed income. Because he has no car, he must depend on others for transportation. She has not encouraged him to apply for employment at convenience stores because his physical condition would not allow him to stand the strain of the work. His shoulder and elbow are the major physical reasons he is unable to work, albeit he has high blood pressure and bleeding ulcers.

From this record, the court entered its findings. Then the court ordered “that punishment for each separate violation is assessed at a fine of $0.00 and confinement in the county jail of DEAF SMITH COUNTY, TEXAS for a period of __ O__ days, with the confinement to run concurrently.” Further, the court ordered that relator be confined and remain confined, even after serving the “0” day commitment, until he shall pay the $3,685.50 child-support arrearage.

Relator’s habeas corpus petition is a collateral attack upon the contempt order, and relator can be relieved of the order’s impositions only if the order is void. Ex parte Dustman, 538 s.W.2d 409, 410 (Tex.1976). He proposes to show, by two issues, that the order is void because (1) The order fails to order him to a certain number of days, which is not sufficiently specific to apprise him of what he has to do to purge himself of contempt; and (2) he, through no fault of his own, is unable to obey the order for child support because of physical injury.

But before we reach relator’s issues, we are confronted with the motion of Gonzalez, the real party in interest, to dismiss the petition because relator failed to verify the factual statements in the petition by affidavit made on personal knowledge as required by the pertinent rule. See Tex.R.App.P. 52.3. By the rule, the verification is a necessary element of the petition; however, since preliminary action was taken on the petition before the lack of verification was evident, and relator may correct the deficiency by refiling the petition, we will address the merits in the interest of judicial economy. Rosedale Partners v. 131 Jud. Dist. Ct., 869 S.W.2d 643, 646 (Tex.App.-San Antonio 1994, orig. proceeding); Cronen v. Smith, 812 S.W.2d 69, 70 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding). The motion to dismiss the petition is overruled.

*3 As we understand relator’s first issue, coupled with his reliance on Ex parte Carlton, 443 S.W.2d 61 (Tex.Civ.App.-Houston [14th Dist.] 1969, orig. proceeding), he presents the contention that he was sentenced to jail for an unspecified number of days, and because the contempt order does not specify how he may purge himself of contempt, it is void. His position is not well-taken.

When the court found relator in contempt for disobeying its order, it could have punished him for such contempt by imposing a fine and jail sentence to vindicate its authority. Nevertheless, the court did not exact punitive measures since it provided no fine and no imprisonment for the contempt, which in the exercise of its discretion it could do. See, e.g., Ex parte Carroll, 141 Tex. 566, 175 S.W.2d 251, 252 (Tex.1943). Rather, to coerce relator into complying with its order, the court ordered him imprisoned until he purged himself of the contempt by paying the arrearage of $3,685.50. Thus, the order clearly and unambiguously specifies how relator may purge himself of contempt. In this respect, the order is totally inapposite to the Carlton order, the ambiguous language of which did not specify what the imprisoned one was required to do to be released. 443 S.W.2d at 62. It follows that his first issue does not entitle relator to any relief.

Although the order clearly states the act which relator must perform to purge himself of contempt, he must have the means by which he may do so. If it is not within his power to perform the act which will purge him of contempt, the court is not empowered to imprison him for an indefinite term as punishment for an offense previously committed. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948). Relator essentially contends, with his second issue, that he does not have the means to purge himself of contempt because of a physical disability. It was his burden to prove the contention. Ex parte Raymer, 644 S.W.2d 889, 890 (Tex.App.-Amarillo 1982, orig. proceeding).

Gonzalez characterizes relator’s testimony of his financial and physical conditions, recounted earlier, as self serving and difficult, if not impossible, to contradict, and as anything except clear, direct and positive on the issue. She submits that the court, agreeable to the view of an interested witness’s testimony expressed in Ex parte Rosser, 899 S.W.2d 382, 386 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding), judged relator’s credibility, determined the weight to be given his evidence, and found that he had the ability to comply with the court’s order by paying the child support and arrearages.

The testimony of relator and his mother, although from interested parties and largely uncorroborated, was uncontradicted, albeit there were minor discrepancies. The testimony was clear and positive that, on the day of hearing, relator still suffered from the effects of a previous injury and surgery, was unemployed except for an occasional “wet sand” job, lived rent free because he had no money to pay rent, had no automobile, no financial resources, and “no credit at all,” which foreclosed his ability to effect a loan to secure his release from imprisonment. The record reflects that relator had been incarcerated under the contempt order for nine days before an amount of bond for his release was set, and longer before the bond was made and accepted, which is some corroboration of relator’s inability to purge himself of the contempt by paying the $3,685.50. Ex parte Dustman, 538 S.W.2d 409, 410 (Tex.1976, orig. proceeding).

*4 Moreover, if the testimony was not true, the real party in interest had the means and opportunity to disprove it. Inquiry of the orthopaedic surgeon, whose address was furnished, would reveal whether relator’s physical inability to labor was to the extent he represented, and the hardware company could advise whether relator was unable to perform the work as he related. Questioning of relator’s neighbors and brother-in-law would disclose whether the “wet sand” work was as sporadic as he disclosed. No attempt at contradiction was made; therefore, we cannot ignore relator’s statements of his inability to retain steady employment and his financial inability to pay, at the time of the hearing, the arrearage which resulted in his incarceration. Ex parte Gonzales, 414 S.W.2d 656, 657 (Tex.1967, orig.proceeding).

The state of the record testimony falls within the exception giving conclusive effect to testimony of interested party and witness where it is clear and positive, without circumstances in evidence tending to discredit or impeach such testimony, and there were means and an opportunity for an opposite party to disprove the testimony if it were not true. Id.; Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967, orig.proceeding). Given this situation, it was not within the power of relator to perform the act which would result in his release from the continuing imprisonment imposed upon him by the contempt decree. Consequently, the trial court exceeded its power in ordering that relator be imprisoned until the $3,685.50 arrearage is paid. Ex parte Dustman, 538 S.W.2d at 410. Relator is entitled to relief under his second issue.

The relator is ordered discharged.

	Footnotes
*		Charles L. Reynolds, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.