Chiles v. Schuble, B14-90-00083-CV

• Decision Date: 17 April 1990
• Docket Number: No. B14-90-00083-CV,B14-90-00083-CV
• Citation: 788 S.W.2d 205
• Parties: Patti Sue Sullivan CHILES, Relator, v. The Honorable Henry G. SCHUBLE, Judge, 245th Judicial District, Respondent. (14th Dist.)
• Court: Texas Court of Appeals

Page 205

788 S.W.2d 205

Patti Sue Sullivan CHILES, Relator, v. The Honorable Henry G. SCHUBLE, Judge, 245th Judicial District, Respondent.

No. B14-90-00083-CV.

Court of Appeals of Texas Houston (14th Dist.).

April 17, 1990.

Russell H. McMains, Kimberley Hall Seger, Corpus Christi, Eugene L. Smith, Pamela E. George, Houston, for relator.

Oliver S. Heard, Richard R. Orsinger, San Antonio, Edward J. Murphy, Wm. Bruce Stanfill, Houston, for respondent.

Before ROBERTSON, DRAUGHN and ELLIS, JJ.

OPINION

ELLIS, Justice.

The issue in this original proceeding is whether respondent must enforce his own temporary support orders awarded during pendency of appeal. TEX.FAM.CODE ANN. § 3.58(h) and (i) (Vernon Supp.1990). Although we believe respondent has no absolute duty to enforce his temporary support orders by contempt under any and all circumstances, we do find his refusal to entertain a show/cause hearing on the motion to enforce an abuse of his discretion. We conditionally grant the writ.

On April 7, 1988, the real party in interest, Jerry E. Chiles, filed cash in lieu of an appeal bond to appeal the decree of divorce terminating his marriage from relator. On May 4, 1988, respondent signed an order continuing temporary support for relator during the pendency of the appeal. On March 1, 1989, respondent ruled he would not enforce the temporary support orders beyond April 1, 1989. On March 9, 1989, respondent vacated the March 1, 1989, order. He ruled that "[f]urther orders will not be signed in this cause including show cause orders for enforcement unless mandated by the appellate courts."

On December 20, 1989, relator filed a motion for leave to file petition for writ of mandamus requesting this court to order respondent to vacate his March 1, 1989, and March 9, 1989, orders and to compel respondent to enforce his May 4, 1988, order granting temporary support. In an unpublished opinion we overruled the motion as premature. The opinion noted relator had not demonstrated a demand by her and a subsequent refusal by respondent to enforce the temporary support order.

Relator returned to the trial court with a "Motion to Enforce Order Granting Motion to Continue Payment of Support and Extension of Temporary Injunction During Pendency of Appeal." Respondent refused to set the motion for hearing, noting on his refusal that "3.58 of Texas Family Code use of word 'MAY' is not a mandatory requirement for enforce (sic) of order." After the refusal, relator returned to our court with another motion for leave to file petition for writ of mandamus. We granted leave and filed the petition.

The focal points of this proceeding are subsections (h) and (i) of § 3.58 that were added to the family code in 1985. Subsection (h) allows the trial court, within 30 days after perfection of appeal, to enter orders "necessary for the preservation of the property and for the protection of the parties during the pendency of the appeal...." Subsection (i) provides: "The court retains jurisdiction to enforce orders entered under Subsection (h) of this section unless the appellate court, on a proper showing, supersedes the court's orders." TEX.FAM.CODE ANN. § 3.58(h) and (i).

Before the addition of these subsections, the trial court was without jurisdiction to enforce its orders during the pendency of an appeal. Ex parte Boniface, 650 S.W.2d 776 (Tex.1983). After appellate jurisdiction attached, the appellate court alone...