In re Sheshtawy

• Citation: 154 S.W.3d 114
• Decision Date: 31 December 2004
• Docket Number: No. 03-0766.,03-0766.
• Parties: In re Adel SHESHTAWY, Relator.
• Court: Supreme Court of Texas

154 S.W.3d 114

In re Adel SHESHTAWY, Relator.

No. 03-0766.

Supreme Court of Texas.

Argued November 19, 2003.

Decided December 31, 2004.

Scott Ramsey, Houston, for relator.

Shawn Casey, James C. Faulkner, Houston, for respondent.

Justice OWEN delivered the opinion of the Court.

In this habeas corpus proceeding, we hold that both the court of appeals and the trial court had authority to enforce a final judgment awarding spousal maintenance while that judgment was pending on appeal and was not superseded. Accordingly, the trial court had jurisdiction to issue the commitment order. However, in the appeal of the underlying divorce decree the court of appeals has since reversed the award of spousal maintenance,¹ which precludes further enforcement of the civil contempt provisions in the commitment order. The criminal provisions of the commitment order allow the party held in contempt to obtain probation by paying the spousal maintenance ordered by the trial, and therefore, the criminal sentence is affected by the reversal of the spousal maintenance award. Accordingly, we vacate the commitment order, and we grant habeas corpus relief. The trial court, however, retains discretion to impose criminal contempt for violation of its unsuperseded order pending appeal.

I

A final judgment granting a divorce between Adel and Amal Sheshtawy directed Adel to pay Amal $600 per month for thirty-six months as post-divorce spousal maintenance pursuant to section 8.002(1) of the Texas Family Code.² The trial court found that Adel Sheshtawy had been convicted of a criminal offense that also constituted an act of family violence. The criminal conviction was upheld on appeal.³

Adel Sheshtawy did not make the first three monthly payments, and Amal Sheshtawy instituted proceedings to enforce the judgment in the trial court while that court still had plenary power.⁴ The motion to enforce had not been ruled upon by the trial court when Adel Sheshtawy filed a notice of appeal. Adel Sheshtawy did not supersede the final judgment. Amal Sheshtawy moved for temporary orders pending appeal, seeking legal fees for defending the appeal. She did not seek temporary spousal support pending appeal, as she could have done pursuant to section 6.709 of the Family Code.⁵ The trial court's judgment already provided for spousal maintenance and that judgment had not been superseded.

On appeal, Adel Sheshtawy challenged several aspects of the divorce decree, including the award of spousal maintenance. While the appeal was proceeding, the motion for contempt remained pending in the trial court, and the trial court set a hearing. Adel Sheshtawy sought writs of prohibition and mandamus to compel the trial court to stay enforcement of the divorce decree pending appeal, asserting that only a court of appeals has jurisdiction to enforce a divorce decree once an appeal has been perfected. The court of appeals denied relief, holding that the trial court retained jurisdiction to enforce the spousal maintenance order while the appeal was pending.⁶ The trial court proceeded to hear Amal Sheshtawy's motion for enforcement. Adel Sheshtawy had made no spousal maintenance payments, and the trial court found him in contempt for failing to make nine monthly payments, totaling $5,400. The trial court ordered liquidation of a $3,000 cash bond that Adel Sheshtawy had posted when a capias had previously been issued and credited the bond against the arrearage.

The trial court ordered that Adel Sheshtawy be punished for two counts of criminal contempt and ordered him confined for 180 days for each count, with those sentences to be served concurrently. The trial court also ordered confinement for civil contempt, ordering that Sheshtawy be incarcerated upon completion of the criminal contempt sentence from day to day until he paid the $2,400 spousal maintenance arrearage. The commitment order further provided that the criminal and civil contempt confinements could be suspended and probated if Adel Sheshtawy paid all outstanding spousal maintenance and the attorney fees Amal Sheshtawy incurred prosecuting the enforcement action.

Adel Sheshtawy was taken into custody and had spent two months confined in jail when he sought a writ of habeas corpus from the court of appeals. That request for relief was denied.⁷ Adel Sheshtawy then sought habeas corpus relief from this Court, and we released him on bond pending consideration of the merits.

While the habeas corpus petition has been pending in this Court, the court of appeals has decided the issues presented in Adel Sheshtawy's appeal from the divorce decree.⁸ Among other holdings, the court of appeals reversed and rendered the award of spousal maintenance⁹ based on section 8.053 of the Family Code, which provides that "it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in ... seeking suitable employment... or ... developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending."¹⁰ The court of appeals concluded that Amal Sheshtawy had not presented any evidence to rebut this presumption.¹¹ Both Adel and Amal Sheshtawy filed petitions for review in this Court, challenging the court of appeals' decision in the divorce case, and today, in a separate order, we have denied those petitions.¹² The court of appeals' judgment in the divorce proceeding is now final.

For the reasons considered below, habeas corpus relief is granted.

II

As a general proposition, a writ of habeas corpus will issue if the commitment order is void because it was beyond the court's power to issue it.¹³ Adel Sheshtawy contends that the trial court's contempt order is void because the court of appeals had exclusive jurisdiction to enforce the divorce decree by contempt once he perfected his appeal. Adel Sheshtawy relies on this Court's decisions in Ex parte Boniface¹⁴ and Schultz v. Fifth Judicial District Court of Appeals at Dallas ¹⁵ in support of his position.

In denying Adel Sheshtawy's petition for writs of prohibition and mandamus, the court of appeals concluded that the trial court retained jurisdiction to enforce its spousal maintenance award pending appeal,¹⁶ citing section 8.059 of the Family Code,¹⁷ Sullivan v. Sullivan,¹⁸ and Bivins v. Bivins,¹⁹ among other authorities. In Sullivan and Bivins, the courts of appeals concluded that trial courts retain the authority to enforce child support payments by contempt during an appeal, although no provision in the Family Code expressly addresses that question.²⁰ In denying Sheshtawy's petition for writs of prohibition and mandamus, the court of appeals concluded that Boniface and Schultz have been "abrogated" by "amendments to the Texas Family Code," "at least in part, with respect to family law enforcement proceedings involving such matters as spousal and child support."²¹

The Family Code provides in section 8.059 that a court may enforce a spousal maintenance order by contempt,²² but it is silent as to what court may do so while an appeal is pending unless the spousal support has been granted under section 6.709, which allows a trial court to grant temporary spousal support during an appeal.²³ Section 6.709 expressly provides that temporary support awarded for the duration of an appeal may be enforced by a trial court pending appeal.²⁴ The Code does not contain a similar provision in section 8.059, which deals with spousal support generally and is entitled "Enforcement of Maintenance Order."²⁵

But nothing in the Family Code suggests that a final judgment awarding spousal maintenance, other than temporary support pending appeal, should be accorded any different effect than any other final judgment that has not been superseded pending appeal. This Court recently held in In re Crow-Billingsley Air Park, Ltd. that when a final judgment is not superseded, not only does a trial court have "jurisdiction to hear the motion to enforce its final judgment, despite the fact that the judgment ha[s] been appealed," but "[a] trial court has an affirmative duty to enforce its judgment."²⁶ In that case a trial court had signed a final judgment ordering a zoning committee to hold an election. A motion to enforce that judgment was filed, but before the trial court heard the motion, the final judgment was appealed. The trial court dismissed the enforcement proceeding, concluding it had no jurisdiction to proceed pending appeal, even though the judgment had not been superseded.²⁷ We granted mandamus relief, concluding that "[a] party is entitled to mandamus relief to vacate an order that wrongly denies a prevailing party's attempt to enforce an unsuperseded judgment."²⁸

More than forty years ago, in Ex parte Preston, this Court similarly held that a trial court could proceed to enforce its unsuperseded contempt order that was part of a final judgment while that judgment was on appeal.²⁹ Preston was a divorce case in which the trial court found the husband in contempt and in the final judgment, ordered him confined for three days and thereafter until he paid $10,000 to the clerk of the court for the use and benefit of his wife. In denying habeas corpus relief, this Court held "[t]he fact that the case is on appeal without any showing of a supersedeas bond would, if anything, make it more imperative that the rights of Mrs. Preston be protected in this manner."³⁰ The Court did say, however, that Mrs. Preston "would hardly be entitled" to possession of the money until the appeal was decided.³¹

The conclusion in Crow-Billingsley and Preston that a trial court retains authority during an appeal to enforce a final judgment that has not been 1uperseded is consistent with earlier decisions of this Court in Ex parte Hodges ³²

and Ex parte Lohmuller,³³ both of which held that a trial court could award temporary alimony pending final disposition and could enforce that award...