Opinion
No. 01-04-00471-CV
Opinion issued August 19, 2004.
Original Proceeding on Petition for Writ of Mandamus.
Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
OPINION
Relator Diane Fischer-Stoker has filed a petition for a writ of mandamus complaining of Judge Millard's refusal to dismiss a contempt proceeding brought against relator by real party in interest Ronnie H. Stoker. In accordance with certain provisions of the property division, Stoker and Fischer-Stoker agreed to liquidate certain accounts and split the proceeds. Stoker abided by the agreement, but his ex-wife did not; when she refused to comply, Stoker filed a motion for contempt and the trial court set a date for a show-cause hearing.
The Hon. Lisa Millard, judge of the 310th District Court of Harris County, Texas. The underlying lawsuit on appeal is Stoker v. Stoker, No. 01-04-00262-CV, trial court cause no. 2003-19746.
Fischer-Stoker complains that the trial court should not have scheduled a show-cause hearing on the motion for contempt, but should instead have granted her motion to dismiss the proceeding, because the trial court lacks jurisdiction over this matter. On April 19, 2004, the trial court denied Fischer-Stoker's motion to dismiss.
A court of appeals may issue a writ of mandamus, "agreeable to the principles of law regulating those writs," against a judge of a district or county court in the court of appeals district. Tex. Gov't Code Ann. § 22.221(b)(1) (Vernon 2004). We may grant mandamus relief to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
Relying principally on Ex Parte Boniface, Fischer-Stoker argues that only this Court may entertain the motion to enforce by contempt. 650 S.W.2d 776 (Tex. 1983). The court held in Boniface:
Generally, contempt proceedings for violations of judgments and orders granting injunctive relief are instituted in the court from which the judgment or order emanated. But, after the jurisdiction of the appellate court has attached, the proceedings for enforcement must be instituted in that court rather than in the trial court.
Id. at 777-78 (emphasis in original).
Stoker, in rebuttal, argues that Boniface and its progeny have been abrogated by statute. This is correct in some respects. Because of changes made in 1985 to the Family Code, the trial court now retains jurisdiction to enforce certain matters post-divorce. However, while the trial court generally retains the power to enforce a property division when no appeal has been filed, the Family Code now expressly divests the trial court of the ability to issue further orders regarding a division of property pursuant to divorce while an appeal is pending. Tex. Fam. Code Ann. § 9.007(c) (Vernon 1998) ("The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending."); see also English v. English, 44 S.W.3d 102, 106 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (interpreting section 9.007(c) to mean that, after rendering initial decree of divorce containing property division, trial court is legislatively restrained from rendering further orders).
Such matters include certain temporary orders, child support, spousal support or maintenance, and conservatorship or possession of a child. See Tex. Fam. Code Ann. § 157.001(a),(d) (Vernon 2002) (motion to enforce final order for conservatorship, child support, and possession shall be filed in court of continuing exclusive jurisdiction); id. §§ 6.709(a), (b) (Vernon 2002) (trial court retains jurisdiction to enforce temporary orders re support, require payment of attorney's fees, appoint receiver, award exclusive occupancy of parties' residence); id. § 8.059(a) (Vernon Supp. 2004) (court may enforce by contempt a maintenance order); see also Massey v. Massey, 813 S.W.2d 605, 606 (Tex. App.-Houston [1st Dist.] 1991, no writ) (noting that trial court may order spousal support pending appeal and retains jurisdiction to enforce same); accord Chiles v. Schuble, 788 S.W.2d 205, 206 (Tex. App.-Houston [14th Dist.] 1990, orig. proceeding).
We join our sister court in this interpretation of section 9.007(c) of the Family Code, based on the plain language of the statute. Accordingly, we hold that the trial court did not have the power here to issue further orders in regard to the division of property, including ordering a show-cause hearing on the motion for contempt.
This does not mean that parties are entirely without recourse while an appeal is pending. As the English court noted, the language of the statute is directed at the power of the trial court, not at the responsibilities and obligations of the parties. English v. English, 44 S.W.3d 102, 106 (Tex. App.-Houston [14th Dist.] 2001, no pet.). The ministerial act of execution of the judgment is not proscribed. Id.
We conditionally grant the petition for writ of mandamus and order the trial court to dismiss the motion for contempt. We will issue a writ only if the trial court fails to comply.