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Mathis v. Graves

Court of Appeals of Texas, First District

October 31, 2019

ARNETT MATHIS, Appellant
v.
TORI LASHAWN GRAVES, Appellee

          On Appeal from the 308th District Court Harris County, Texas, Trial Court Case No. 2014-67465

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          Richard Hightower Justice.

         This is 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.

         Background

         Mathis 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.

         On 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.

         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.

         On July 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.

         On June 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.[1] 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 order.[2]

         On July 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.

         Analysis

         Mathis 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.

         We 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 ...


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