## Facts

- A jury found John W. Small and Murriah S. McMaster entered a common-law marriage; the trial court adopted that finding in an interlocutory judgment.
- The trial court ordered Small to pay $4,000 per month in temporary spousal support.
- After nonpayment, the trial court held Small in contempt in 2006 for support arrears.
- In 2007, a jury resolved property characterization and valuation issues and found Small committed fraud regarding McMaster’s community-property rights; the trial court appointed joint receivers.
- Small filed for bankruptcy, triggering the automatic stay under 11 U.S.C. § 362(a).
- The bankruptcy court granted partial stay relief allowing the state court to enter judgment consistent with the jury verdict, grant a divorce, determine future support payable from future earnings (not estate property), determine monetary damages claims, enter orders against non-debtors, and allocate the community estate.
- During the bankruptcy case, the state trial court held a hearing on McMaster’s motion to enforce temporary support arrears and signed a contempt order finding $124,000 in arrears, assessing 179 days’ confinement, and probating confinement conditioned on installment payments; the order also assessed attorney’s fees and costs.
- Small sought mandamus relief to set aside the contempt order and to overturn the underlying temporary-support order.

## Issues

1. Whether the automatic bankruptcy stay barred the trial court from issuing a contempt order coercing payment of pre-petition temporary support arrears.
2. Whether the bankruptcy court’s partial relief from stay authorized contempt enforcement of arrears, rather than merely adjudication and entry of judgments.
3. Whether an order labeled “criminal contempt” is treated as civil contempt when it conditions confinement on payment (a purge provision), making it subject to the automatic stay.

## Decision

- The court of appeals conditionally granted mandamus and directed the trial court to vacate the contempt order.
- The contempt order was void because it violated the automatic stay by coercing collection of a pre-petition monetary obligation.
- Despite its “criminal contempt” label, the order operated as civil contempt because confinement was probated and avoidable through payment.
- The court denied mandamus relief to set aside the underlying temporary-support order.

## Legal Principles

- The automatic stay under 11 U.S.C. § 362(a) halts proceedings and acts to collect or recover pre-petition claims against a debtor.
- Civil contempt used to coerce payment of a monetary obligation is treated as a stayed collection effort when it functions to compel satisfaction of a pre-petition debt.
- Courts classify contempt by substance, not label; an order with a purge-by-payment mechanism is civil and coercive, not punitive and unconditional.
- Partial relief from the automatic stay permitting adjudication (e.g., determining amounts owed or entering judgment) does not, without clear authorization, permit enforcement measures that amount to collection of pre-petition claims.
- Mandamus is an appropriate vehicle to challenge a void contempt order when direct appellate review is unavailable or inadequate.

## Conclusion

The court held that a contempt order conditioning confinement on payment of pre-petition temporary support arrears was civil in effect and constituted a stayed collection effort, rendering it void; mandamus was therefore warranted to require vacatur of the contempt order, but not to disturb the underlying temporary-support award.


In re Small, 286 S.W.3d 525 (Tex. App.—Houston [14th Dist.] 2009)