Appeal from the 308th District Court Harris County, Texas,
Trial Court Case No. 2014-67465
consists of Justices Kelly, Hightower, and Countiss.
Richard Hightower Justice.
an appeal from a final order rendered by the trial court in a
suit for conservatorship filed by appellant, Arnett Mathis,
against appellee Tori LaShawn Graves, who is the mother of
Mathis's child, K.A.M. The relevant questions of
conservatorship were tried before a jury by the district
court judge, the Honorable James Lombardino. The associate
judge, the Honorable David Sydow, signed a "Final Order
in [the] Suit Affecting the Parent-Child Relationship"
on April 1, 2016. Subsequently, on June 25, 2018, Judge
Lombardino signed an identical Final Order. Mathis now asks
us to void Associate Judge Sydow's April 1, 2016 order.
In his sole issue on appeal, Mathis argues that "a final
order in a suit affecting the parent child relationship is
void when the case is tried by the district judge and the
final order is signed by the associate judge without written
consent of all the parties." Because we conclude that
the April 1, 2016 order of the associate judge was not a
final order and is not void, we overrule Mathis's sole
issue and affirm the order of the trial court.
and Graves are the parents of K.A.M., born in 2008. The
couple was never married and later separated. On November 18,
2014, Mathis filed his original petition in a suit affecting
the parent-child relationship seeking that both parents be
named joint managing conservators and that he be granted the
right to designate K.A.M.'s primary residence. Mathis
further sought child support and attorney's fees. Graves
filed a counter-petition the following month asking that both
parents be named joint managing conservators and that she be
granted the right to designate the child's primary
residence. Graves further sought child support and medical
support for K.A.M. and attorney's fees. District Judge
Lombardino held a jury trial in January 2016, and the jury
found that Graves should have the exclusive right to
designate K.A.M.'s primary residence.
April 1, 2016, Associate Judge Sydow signed a "Final
Order" in the SAPCR based in part on the jury's
verdict. Mathis and Graves were named joint managing
conservators, and Graves was granted the exclusive right to
designate K.A.M's primary residence. The April 1 order
also resolved issues of visitation and child support. This
order was approved as to form and substance in writing by
Graves, but not by Mathis.
moved for a new trial on May 1, 2016, arguing that the
evidence was legally and factually insufficient to support
the final order. The motion for new trial did not raise a
complaint regarding the associate judge's signing of the
April 1, 2016 final order or Mathis's lack of consent to
the order. There is no ruling on the motion for new trial in
the record. There is likewise no indication that either party
requested a de novo hearing regarding entry of the final
order following the April 1, 2016 ruling.
18, 2016, Mathis filed a notice of appeal stating that
"[t]he judgment or order appealed from was signed on
April 13, 2016." See Mathis v. Graves, No.
01-16-00568-CV, 2017 WL 6374555, at *1 (Tex. App.-Houston
[1st Dist] Dec. 14, 2017, no pet.) (mem. op.). This resulted
in an appeal apparently challenging some other order than the
one signed by Associate Judge Sydow on April 1, 2016. This
Court dismissed that appeal, observing that "[t]he only
April 13, 2016 order in the clerk's record was entitled
'Final Order in Suit Affecting the Parent-Child
Relationship,' and it was signed by an associate
judge." Id. This Court then stated, "The
clerk's record reflects that the April 13 order has the
word 'VOID' handwritten over the associate
judge's signature, along with what appears to be
handwritten initials and the date '6-5-16.'"
Id. Accordingly, we concluded that "the April
13 order was voided by the trial court's own volition on
June 5, 2016, thus there was no April 13 order that could be
appealed by the notice of appeal filed on July 18, 2016"
and that, "[i]n the absence of an appealable final
order, we lack appellate jurisdiction." Id. We
dismissed that appeal as moot. Id.
25, 2018, District Judge Lombardino signed the "Final
Order in Suit Affecting the Parent-Child Relationship"
that was identical to the April 1, 2016 order that had been
signed by Associate Judge Sydow. Mathis at times refers to
the June 25, 2018 Final Order as a "nunc pro tunc"
and indicates that it had been signed to address his
complaint that Associate Judge Sydow did not have authority
to sign the April 1, 2016 final order. The June 25, 2018
order itself does not indicate that it is a "nunc pro
tunc" order, nor does the record contain any motion or
other request for the trial court to sign a new
25, 2018, Mathis filed a notice of appeal stating, "The
judgment or order appealed from was signed on June 25,
2018," resulting in the underlying appeal.
argues that Associate Judge Sydow's April 1, 2016
"Final Order" is void. He relies on cases setting
out a general standard for determining when a judgment is
void. See, e.g., Browning v. Prostok, 165
S.W.3d 336, 346 (Tex. 2005) (holding that only void judgments
may be collaterally attacked and that judgment is void only
when it is apparent that court "rendering" judgment
had no jurisdiction of parties or property, no jurisdiction
of subject matter, no jurisdiction to enter particular
judgment, or no capacity to act); Gauci v. Gauci,
471 S.W.3d 899, 901 (Tex. App.-Houston [1st Dist.] 2015, no
pet.) (holding that judgment rendered by trial court that
lacks jurisdiction over parties or subject matter is void and
that void judgment is "entirely null within itself, not
binding on either party, [and] . . . not susceptible of
ratification or confirmation"). These authorities are
inapplicable, however, because this case is not one in which
the district court judge-here, Judge Lombardino-lacked
jurisdiction over the parties or subject matter, jurisdiction
to enter a judgment, or capacity to act.
agree with Mathis to the extent he argues that Associate
Judge Sydow lacked authority to render a final judgment in
this case. "[T]he powers vested in an associate judge
are prescribed by statute." In re A.G.D.M., 533
S.W.3d 546, 547 (Tex. App.-Amarillo 2017, no pet.);
see Tex. Fam. Code § 201.007; Gerke v.
Kantara, 492 S.W.3d 791, 792-94 (Tex. App.-Houston [1st
Dist.] 2016, no pet.) (discussing powers of associate judge
as enumerated in Family Code and distinguishing between
authority to sign orders and authority to "render"
final order or judgment). Family Code section 201.007 permits
an associate judge to render a final order only in certain
limited instances, none of which are supported by this
record. See Tex. Fam. Code § 201.007(a)(14),
(16) (listing circumstances in which associate judge may
render final order, including when order is "agreed to
in writing as to both form and substance by all parties"
or when parties waive their right to de novo hearing before
referring court in writing before start of hearing before
associate judge); see also Graham v. Graham, 414
S.W.3d 800, 801 (Tex. App.-Houston [1st Dist.] 2013, no pet.)
("Associate judges do not have the power to render final
judgment outside the context of certain ...