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In re Troiani

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 27, 2017

IN RE ANTHONY P. TROIANI

         On Petition for Writ of Mandamus.

          Before Justices Contreras, Benavides, and Longoria.

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice.[1]

         Through this original proceeding, relator Anthony P. Troiani seeks an order (1) compelling the respondent to withdraw from serving as an assigned judge in the underlying proceeding, and (2) setting aside all orders issued in the current proceeding as void.[2] Relator contends that he timely objected to the assignment of the respondent; nevertheless, the respondent has failed to withdraw, and consequently all orders issued by the respondent are void. See generally Tex. Gov't Code Ann. § 74.056(a), (b) (West, Westlaw through Ch. 49, 2017 R.S.). We conditionally grant the petition for writ of mandamus as stated herein.

         I. Background

         This case arises from a lawsuit involving the possession, custody, and support of minor children. On June 18, 2013, relator filed a "Petition for Enforcement of Mediated Settlement Agreement" in the 444th District Court of Cameron County, Texas against his former wife, Christine Yvette Troiani. In that petition, relator requested the trial court to enforce a mediated settlement agreement incorporated in the parties' May 3, 2013 final decree of divorce.

         On August 21, 2013, the Presiding Judge of the Fifth Administrative Judicial Region issued an "Amended Order of Assignment" which assigned the Honorable Robert Pate, respondent herein, as a "Former Judge" to preside over the cause "until plenary jurisdiction has expired or the undersigned Presiding Judge has terminated this assignment in writing, whichever occurs first." The order of assignment further provided that "[i]n addition, whenever the assigned judge is present in the county of assignment for a hearing in this cause, the judge is also assigned and empowered to hear at that time any other matters that are presented for hearing in other cases."

         The parties litigated the enforcement of the mediated settlement, and both Christine and the Office of the Attorney General (OAG) filed separate pleadings seeking affirmative relief. On August 1, 2014, the respondent rendered an order entitled "Findings and Order, " which addressed several of the pending issues, including child support, visitation, insurance coverage, medical expenses, and the disposition of the net proceeds of the sale of realty. On October 10, 2014, the respondent signed a final order disposing of the parties' remaining claims in its "Order on Christine Yvette Troiani's Motion for Enforcement and Modification of Division of Property and Motion for Temporary Restraining Order." This order denied Christine's requested relief. Relator ultimately appealed the trial court's rulings following rendition of the final judgment. We reversed and rendered in part and affirmed in part. See Troiani v. Troiani, No. 13-14-00630-CV, 2016 WL 4702685, at *1 (Tex. App.-Corpus Christi Sept. 8, 2016, no pet.) (mem. op.).

         Almost two years later, on June 6, 2016, relator filed a "Motion for Enforcement by Contempt and Order to Appear and Modification" in the same court and trial court cause number. This pleading contains a preliminary section entitled "Objection to Appointment of Visiting Judge" which states that relator "objects to the appointment of Judge Robert C. Pate as visiting judge to preside over the present case." Through this pleading, relator sought enforcement of the divorce decree's provisions pertaining to custody and possession of the minor children and sought modification of the decree with regard to the award of child support. By order signed on August 30, 2016, the respondent denied relator's objection to his assignment:

The Court received and reviewed the Motion for Enforcement by Contempt and Order to Appear an[d] Modification filed by Movant ANTHONY PAUL TROIANI which included, among its terms, [an] Objection to the Assignment of the undersigned to serve in this case. The Court then requested and received a copy of the most recent Order Appointing the undersigned dated August 21, 2013 in this particular case and noted that the appointing order specifically provides not only appointment to this specific case; but, also, continues "from this date (August 21, [2013]) until plenary jurisdiction has expired or the Presiding Judge has terminated this assignment in writing, whichever occurs first." At this date, no written termination of this assignment by the Presiding Judge has occurred; moreover, the undersigned has previously held a number of hearings in this case including the hearing granting the divorce, approving the terms of the parent-child relationship and which are at issue in the pending motion all of which occurred without objection to prior orders of appointment to the assigned judge at that time. Accordingly, the Movant's objection is not well taken under the terms of the current appointing order, is not timely made as dispositive orders in prior hearings, including a hearing or hearings after August 21, 2013 have been previously signed by the undersigned; and, is, therefore, in all ways, OVERRULED.
The Motion for Enforcement is set for hearing on September 30, 2016 at 10:00 o'clock a.m. in the Courtroom of the 444th District Court. All parties and counsel are ORDERED to attend, in person.

         In this same cause, the OAG filed a "Suit for Modification of Support Order and Motion to Confirm Support Arrearage." On March 23, 2017, the respondent issued an order regarding the OAG's request for modification, which, inter alia, assessed child support arrearage and medical support against relator. On April 21, 2017, relator filed a motion for new trial.

         On April 25, 2017, this original proceeding ensued. By three issues, relator contends: (1) the respondent abused his discretion by overruling relator's timely objection to his assignment as the judge in the current proceeding; (2) the respondent abused his discretion by continuing to preside over the case without a new assignment from the presiding judge; and (3) the orders entered by the respondent in this case after resolution of the appeal constitute void orders and therefore must be set aside.

         This Court requested and received responses to the petition for writ of mandamus from the OAG and Christine. The OAG argues that the deadline for the filing of an objection to an assignment of a visiting judge under Texas Government Code section 74.053 is not contingent on the order of assignment; therefore, the relator's objection to the assignment of the respondent was untimely filed. See Tex. Gov't Code Ann. ยง 74.053 (West, Westlaw through Ch. 49, 2017 R.S.). The OAG also contends that the respondent's plenary jurisdiction had not expired; thus, the respondent had jurisdiction to hear all matters assigned to him pursuant to the terms of the order of assignment. Christine's arguments are similar. She contends that: (1) relator did not timely object to the assignment of the respondent according to section 74.053(c) of the Texas Government Code, and only objected to the assignment after ...


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