Larry Brent Lee and Dana Lee v. William Cutler, Sr. and Irene Cutler ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-136-CV





LARRY BRENT LEE AND DANA LEE,

APPELLANTS

vs.





IRENE C. CUTLER AND WILLIAM CUTLER, SR.,

APPELLEES

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. 87-0761, HONORABLE RAYMOND MORMINO, JUDGE PRESIDING

This dispute centers on the effect of an order by a retired judge in a custody battle between the parents and maternal grandparents of two children. The parents appeal an order granting the grandparents unsupervised visitation, asserting, among other things, that the judge who entered the order was disqualified by their timely objection to his assignment to the case. We set aside the order of unsupervised visitation and remand this cause for further proceedings.

BACKGROUND

The question in this case is whether the parents' objection to the assignment of the retired judge was timely and turns on the characterization of a visitation order as "final" or "temporary."

In 1987, appellees filed a "suit affecting the parent child relationship" (SAPCR), seeking managing conservatorship of two of their grandchildren. See Tex. Fam. Code Ann. § 11.03(b) (Supp. 1991) (providing for SAPCR by grandparents). Appellants, the children's parents, opposed these efforts. The case was set before a retired judge who was sitting by assignment.

Pursuant to an agreement between the parties, the judge signed an order on October 1, 1989, granting the grandparents semimonthly, supervised visitation with the children. See Tex. Fam. Code Ann. § 14.03(e) (Supp. 1991) (providing for grandparent access to grandchildren). The order further states:

It is agreed and ordered that this visitation schedule shall continue for a period of 90 days. It is agreed and ordered that at the end of 90 days the parties will informally review the agreed order to determine permanent terms and conditions for possession of and access to the children.

* * * *

It is agreed and ordered that subsequent to the review meeting[,] grandparental access will be continued. If no agreement is reached at that meeting, then the Court will determine the final terms of possession of and access to the children.

(Emphasis omitted.)

Approximately 90 days after the settlement, the parties met to review the visitation schedule. They could not, however, agree on permanent terms. On November 16, 1989, the grandparents filed a motion asking the court to set "final and permanent terms of [their] possession of and access to the children."

The November motion was set to be heard by the retired judge. Before the hearing, the parents for the first time objected to the judge's assignment to the case. Another judge overruled the parents' objection. On January 1, 1990, the retired judge rendered an order on the November motion granting the grandparents unsupervised visitation with the children.

The parents appeal the January 1990 order by eleven points of error. The grandparents have not filed a reply brief. We will address only the parents' contention that their objection disqualified the retired judge and, therefore, the January 1990 order is void.

DISCUSSION AND HOLDING

The presiding judge of each of Texas' nine administrative judicial regions may assign judges to hold court when necessary to dispose of accumulated business in the region. Tex. Gov't Code Ann. § 74.052 (1988). If a party to a civil case timely objects to an assignment, the judge shall not hear the case. Id. § 74.053(b) (Supp. 1991). An objection is timely if it is filed before the first hearing over which the judge is to preside. Id. § 74.053(c). (Supp. 1991). A timely objection disqualifies the judge as a matter of law, and any judgment or order which a disqualified judge enters is void. Lewis v. Leftwich, 775 S.W.2d 848, 851 (Tex. App. 1989, no writ); Curtis v. State, 762 S.W.2d 958, 960 (Tex. App. 1988, no writ).

In this case, the parents' objection to the assignment of the retired judge was timely if the October order was a "final order" which terminated the original SAPCR proceeding. If so, the November motion commenced a new proceeding, and the parents' objection to the assignment of the retired judge, coming before the first hearing in the new proceeding, was timely. The grandparents contended in the trial court that the language in the October order regarding visitation prevented it from being final. We disagree. A judgment is final if it disposes of all parties and issues before the court. Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex. 1987). On the other hand, a judgment is interlocutory if it expressly reserves issues for future determination. See Ault v. Mulanax, 724 S.W.2d 824, 831 (Tex. App. 1986, no writ) (order expressly reserved issues of child support, visitation, property division and divorce); Kelley v. Kelley, 583 S.W.2d 671, 673 (Tex. Civ. App. 1979, writ ref'd n.r.e.) (order expressly reserved issue of permanent managing conservatorship); Campbell v. Campbell, 550 S.W.2d 164, 166 (Tex. Civ. App. 1977, no writ) (order expressly reserved issue of child support). However, an order which disposes of all issues and parties, but which contemplates future action, is nonetheless final. See Gani v. Gani, 495 S.W.2d 576, 578 (Tex. 1973).

Gani is very similar to this case. The order in Gani stated:

In the event the Petitioner and Respondent are unable to agree upon the hours and dates of visitation during Easter, Christmas, and Thanksgiving, as set out above, the court will order the exact hour and dates of visitation.

* * *

In the event the court receives said report detrimental to the best interests of [the child], the court will schedule a hearing to give the matter of Petitioner's visitation with [the child] further consideration.

Concluding that the order was interlocutory, the court of appeals dismissed an appeal of the order for lack of jurisdiction. Gani v. Gani, 488 S.W.2d 901 (Tex. Civ. App. 1972). The supreme court reversed on the ground that the judgment was final. Gani, 495 S.W.2d at 578. In this regard, the supreme court noted that the judgment did not purport to reserve determination of any aspect of the case then before the court, but merely "contemplated possible further action of the court upon a showing of conditions different from those existing at the time of the judgment." Id.

Similarly, the agreed order in this case, although it "contemplates possible further action," disposes of all of the issues and parties in the case. The agreed order expressly states that "grandparental access will be continued" after the review meeting. Thus, only the terms of access were subject to future consideration. Moreover, the order is conditional only because it contemplates further action if the parties cannot reach an agreement. Accordingly, we hold that the October order is a final judgment. See Beaupre v. Beaupre, 700 S.W.2d 353, 355 (Tex. App. 1985, writ dism'd) (court of appeals accepted jurisdiction in custody case where final order provided for reevaluation of visitation schedule).

Because the October order was final, it terminated the original SAPCR proceeding, and the grandparents' November motion began a new proceeding. See Tex. Fam. Code Ann. § 11.03(e) (1986) (providing for future action in SAPCR). Therefore, the parents' objection to the assignment of the retired judge to hear the November motion was timely, and disqualified the judge as a matter of law. Consequently, the judge's January 1990 order is void.

We sustain the parents' points of error one through four, and set aside the January 1990 order as void. Because we resolve this appeal on these grounds, it is unnecessary for us to consider the parents' remaining points of error. See Tex. R. App. P. Ann. 90(a) (Pamph. 1990). We remand this cause for further proceedings on the grandparents' November 16, 1989 motion.

Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Order Set Aside and Cause Remanded

Filed: June 26, 1991

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