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Click here for the full text of this decision FACTS: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 8.002(1) of the Texas Family Code. 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. 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. 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. 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 attorneys 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. Adel Sheshtawy then sought habeas corpus relief from this court, and the court 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. Among other holdings, the court of appeals reversed and rendered the award of spousal maintenance based on 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.” The court of appeals concluded that Amal Sheshtawy had not presented any evidence to rebut this presumption. Both Adel and Amal Sheshtawy filed petitions for review in this court, challenging the court of appeals’ decision in the divorce case, and in a separate order, the court denied those petitions. The court of appeals’ judgment in the divorce proceeding is final. HOLDING:In the appeal of the underlying divorce decree, the court of appeals has since reversed the award of spousal maintenance, 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, the court vacates the commitment order, and the court grants habeas corpus relief. Noting in particular the decisions in Ex Parte Boniface, 650 S.W.2d 776 (Tex. 1983), and Schultz v. Fifth Judicial District Court of Appeals at Dallas, 810 S.W.2d 738 (Tex. 1991), the court is unable to discern a compelling reason for withdrawing a trial court’s authority to enforce a final judgment pending appeal when that judgment has not been superseded or stayed and no statute or rule of procedure removes the trial court’s authority. A trial court is free to aid execution while an unsuperseded judgment is on appeal. It is illogical to deny a trial court the power of contempt as a tool in enforcing such judgments when contempt is an otherwise permissible exercise of a court’s authority. Even decisions that indicated only a court of appeals should issue contempt orders when an appeal is pending said that the preferable procedure is to refer the factfinding process to the trial court. It makes little sense to say that a trial court has factfinding authority but not decisional authority. Moreover, a trial court may frequently be in a position to act more expeditiously than a court of appeals. And allowing a trial court to proceed directly with adjudication of a motion for contempt eliminates the delay of awaiting a referral order from a court of appeals. As the court of appeals concluded in Bivins v. Bivins, 709 S.W.2d 374 (Tex. App. – Amarillo 1986, no writ), allowing proceedings directly in the trial court is a matter of “practicality and common sense.” An appellate court still retains the overarching power to stay any actions of a trial court, including contempt proceedings, that may interfere with its jurisdiction or the subject matter of the appeal. The court holds that when a final judgment has not been superseded or stayed pending an appeal, either the trial court or the court of appeals may entertain a motion for contempt. If the motion is filed in a court of appeals, it remains the better practice to refer that motion to the trial court for hearing and factfinding. OPINION:Owen, J., delivered the court’s opinion; Brister, J., did not participate.

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