Opinion
No. 05-04-00884-CV
Opinion issued September 28, 2004.
Original Proceeding from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-50464-03.
Writ of Mandamus Denied.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Relator Diana McMorris contends that the visiting trial judge abused his discretion in denying her objection pursuant to TEX.GOV'T. CODE ANN. § 74.053(b) (Vernon Supp. 2004). We deny relator's petition for writ of mandamus.
McMorris and Peter Cimino had two children during their marriage. Judge John McCraw presided over McMorris and Cimino's divorce in 2003 as an assigned former judge. Judge McCraw signed a divorce decree on February 2, 2004, which included rulings on Cimino's visitation with the parties' minor children. While the divorce decree was on appeal to this Court, McMorris filed a motion to modify Cimino's visitation rights which was assigned to the 416th District Court of Collin County. On February 19, 2004, former Judge Parker, acting as an assigned judge to that court, granted McMorris an ex parte temporary order on her motion to modify which prohibited Cimino from visiting the children until further order of the court. The temporary order set a hearing on the motion to modify for March 12, 2004.
This Court dismissed McMorris's appeal of the divorce decree for failure to prosecute prior to the filing of this original proceeding.
Meanwhile, in January 2004 Judge Ovard, regional administrative judge, assigned Judge McCraw to sit as auxiliary court judge for Collin County for a period of five days beginning March 8, 2004 and continuing until he finished all business in the cases heard. The parties agree that the sitting judge of the 416th District Court referred the March 12, 2004 hearing on McMorris's motion to modify to Judge McCraw although there is nothing in the record showing when or how it was referred or when McMorris received notice of it. On the morning of and before the March 12, 2004 hearing, McMorris filed an objection to Judge McCraw hearing the case. After a hearing, Judge McCraw denied McMorris's objection. In this original proceeding, McMorris contends that Judge McCraw abused his discretion in denying her objection to him because the objection was filed before his first hearing on the motion to modify. Cimino contends that McMorris waived her right to object because she did not object within the time requirements of TEX. GOV'T. CODE ANN. § 74.053 (b) (Vernon Supp. 2004) and that she did not show good cause for filing her objection on the date of the hearing.
The copy of the order in the appendix is not signed by Judge Ovard. However, the parties do not challenge the assignment on that basis.
The argument at the hearing on the objection centered on whether the objection was timely because it was not filed before the assigned judge's first hearing in the divorce proceeding and that the court believed that the modification proceeding was a continuation of that proceeding. The order entered by the court denying the objection did not state a reason for the denial.
Neither party asserts the objection was waived because it was not made before Judge McCraw heard the divorce so we do not address the issue of whether the motion to modify is a continuation of the divorce proceeding.
In a civil case if a party timely files an objection to an assigned former judge, any action taken by the former judge after the objection is made is void and the objecting party is entitled to relief by mandamus. Tex. Gov't Code Ann. § 74.053(b) (Vernon Supp. 2004); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996) (orig. proceeding). An objection "must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause." Tex. Gov't Code Ann. § 74.053(c) (Vernon Supp. 2004). The record shows that the objection was filed the date of, not before the date of the first hearing or trial. Additionally, the record in this original proceeding does not contain any evidence of when McMorris or her attorney received actual notice of the assignment of Judge McCraw; nor does it contain a written request by McMorris and a ruling by the presiding judge finding good cause to extend the time to file the objection. As a result, we conclude that McMorris has not shown that the assigned trial judge clearly abused his discretion in denying her objection. Accordingly, we DENY the petition for writ of mandamus.