Bivins v. Bivins

• Decision Date: 30 April 1986
• Docket Number: No. 07-86-0088-CV,07-86-0088-CV
• Citation: 709 S.W.2d 374
• Parties: Martha Caldwell BIVINS, Relator, v. Julian Lee BIVINS, II, Respondent.
• Court: Texas Court of Appeals

Page 374

709 S.W.2d 374

Martha Caldwell BIVINS, Relator, v. Julian Lee BIVINS, II, Respondent.

No. 07-86-0088-CV.

Court of Appeals of Texas,

Amarillo.

April 30, 1986.

Danny M. Needham, Gibson, Ochsner & Adkins, Amarillo, for relator.

Ronald E. Walker, Jr., Amarillo, for respondent.

Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.

COUNTISS, Justice.

Martha Caldwell Bivins, as Relator, has tendered a motion for leave to file an original contempt proceeding in this Court against her former husband, Respondent Julian Lee Bivins, II, for failing to pay child support. Rule 383. ¹ For the reasons hereafter stated, we deny the motion for leave to file.

Relator and her husband were divorced on September 1, 1983, by a judgment of the 251st Judicial District Court of Randall County, Texas. After the judgment was rendered, a supersedeas bond was posted and an appeal to this Court was perfected. By an opinion dated March 24, 1986, this Court affirmed the judgment of the trial court and, on this date, we have overruled the motion for rehearing.

Relator's motion for leave to file this original proceeding was tendered on April 8, 1986. Accompanying the motion are pleadings and documents by which Relator contends her former husband was ordered to pay $2300 per month to her as support for their minor child, beginning September 1, 1983, and is $16,800 in arrears at this time. She asks us to hold him in contempt of the trial court's support order and to impose sanctions.

The threshold question before us, therefore, is whether a support order that is part of the final judgment can be enforced, and its violation punished, by the appellate court while the case is on appeal. The Texas Family Code does not speak to the question and there is an apparent inconsistency in the case law, but we have concluded that the correct legal and practical resolution is to leave enforcement to the trial court.

In 1954, in Ex parte Kollenborn, 153 Tex. 350, 269 S.W.2d 339 (1954), the Texas Supreme Court held that the trial court is the proper forum for enforcement of all temporary support orders while a case is on appeal:

We hold that the appeal of the divorce judgment and the filing of the supersedeas bond did not supersede either the child support or temporary alimony and that the trial court retained a continuing jurisdiction to enforce both.

The El Paso Court of Civil Appeals followed Kollenborn in Ex parte Henderson, 512 S.W.2d 37, 39 (Tex.Civ.App.--El Paso 1974, no writ), in upholding a child custody contempt order issued while the case was on appeal. And in Martin v. O'Donnell, 690 S.W.2d 75 (Tex.App.--Dallas 1985, no writ), the Dallas Court of Appeals held that an appeal does not deprive a trial court of authority to enforce a child custody order through a writ of habeas corpus.

The Kollenborn holding on child support enforcement was a collateral application of the Supreme Court's long held view that the trial court could enforce temporary alimony orders while the case was on appeal. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306 (1939); Ex parte Hodges, 130 Tex. 280, 109 S.W.2d 964 (1937); Ex parte Lohmuller, 103 Tex. 474, 129 S.W. 834 (1910). It appears to be the first time that the Court specifically applied the same rule to child support orders.

The authority of Kollenborn has been in doubt recently because of the Supreme Court's holding in Ex parte Boniface, 650 S.W.2d 776 (Tex.1983). Boniface was an original habeas corpus proceeding initiated in the Supreme Court by Mr. Boniface, who wanted out of jail. The trial court had ordered him to pay monthly retirement benefits to his ex-wife and committed him to jail, during his appeal of the order, for not making the payments. The Supreme Court ordered Mr. Boniface released from jail and held, in broad language, that absent a supersedeas bond the payment order remained in effect and the power to enforce it belonged to the appellate court while the case was on appeal.

The 14th Court of Appeals in Houston, in Whitt v. Whitt, 684 S.W.2d 731 (Tex.App.--Houston [14th Dist.] 1984, no writ), and Justice Whitham, dissenting in Martin v. O'Donnell, 690 S.W.2d at 77-78 concluded that Boniface means contempt actions based on violations of child support and custody orders initiated while the case is on appeal must be filed in the appellate court where the appeal is pending, and not in the trial court. ² Certainly their views find support in the all encompassing language of Boniface. We have concluded, however, that Boniface is not applicable to child support or temporary support orders, for several reasons.

First, as noted above, Kollenborn is authority, both factually and legally, for our conclusion. It has not been overruled and was not even mentioned in Boniface. Also, Boniface is distinguishable factually because the order in question was a property sharing order, not a support order.

Next, we find indications in the Texas Family Code that the trial court is the preferred forum for the repair, maintenance and policing of family matters while the appellate process pends. For instance, in 1985 the...