We expect judges to know and follow the law. Great mischief usually results when they do not. Most lawyers and judges will concede that the actual wording of a law should always control over habit, convenience or "this is the way we have always done it." Unfortunately for many family law litigants, most (but not all), family courts in the Houston area have not been following the letter of the law on what un-elected associate judges are allowed to do, and really big problems may well surface. The family bar is also part of the problem. We also had not closely read the law on what associate judges can and cannot do. We participated in final trials with associate judges and we did not insist that the final orders be signed by the elected judges. The First Court of Appeals in two recent cases did actually read the law and now we all should realize we have been doing things improperly. The First Court of Appeals' rulings, while upsetting and perhaps surprising to many, seem to accurately implement what the law says, even if it may really screw up some lives and families. Judges and the family bar, and perhaps the legislature next year, will have to work together to deal with the disturbing development.
Imagine this scenario: A woman thinks she was divorced three years ago after a "final" trial was presided over by an associate judge. The woman has since remarried, had two children, bought a house with her new husband and added $150,000 to her 401(k) plan. Imagine that lady's horror when she is told that her divorce was not actually granted and her divorce decree is not even a valid order because the associate judge lacked the legal authority to render and sign a final divorce decree. The poor woman is still married to her previous husband, her two new children are presumed to be his because she is still married to him and her new house and the increase in her retirement plan are community property subject to division because an associate judge cannot render and sign final orders.
This and other similar horrible scenarios may well be reality because of two recent cases from the Houston First Court of Appeals which are throwing into question the finality of perhaps hundreds of final orders signed by associate judges without legal authority.
An alternative scenario would be for the elected judge to simply now sign the "final" order and handwrite "rendition and this order is effective as of the date of the associate judge's ruling." If this tactic works, then there is no real problem for most litigants and life goes on with all of us being a little wiser and perhaps more careful. The problem is that it is far from clear that the problem can be fixed so easily. All of the appellate lawyers I have talked to do not think a judge has the power to render a retroactive decision and that the act of rendition involves a ruling made in the present.
Harris County and its larger suburban counties have elected judges with family law jurisdiction and also have associate judges who are hired by the elected judges. The associate judges have limited powers and can only act as authorized by the Texas Family Code. The majority of family judges in this area have been allowing their associate judges to conduct final trials and sign orders that are not also signed by the elected judges. Almost all of those orders are not valid orders according to the holdings in
Gerke v. Kantara, No. 01-14-00082-CV (Tex. App. -Houston [1st Dist.] 4/19/15 and
Clark v. Clark, No. 01-15-00615-CV (Tex. App. - Houston [1st Dist.] 6/28/16).
Click here to download the
Gerke opinion.
Click here to download the
Clark opinion. A third decision from the First Court of Appeals recently relied on the holdings in
Gerke and
Clark.
In re A.T.N.J., No. 01-15-00844-CV (Tex. App. - Houston [1st Dist.] 8/18/16).
Sec. 201.007 of the Texas Family Code sets forth the powers of an associate judge:
Sec. 201.007. POWERS OF ASSOCIATE JUDGE. (a) Except as limited by an order of referral, an associate judge may:
(1) conduct a hearing;
(2) hear evidence;
(3) compel production of relevant evidence;
(4) rule on the admissibility of evidence;
....
(10) recommend an order to be rendered in a case;
....
(14) without prejudice to the right of appeal under Section 201.015, render and sign:
(A) a final order agreed to in writing as to both form and substance by all parties;
(B) a final default order;
(C) a temporary order; or
(D) a final order in a case in which a party files an unrevoked waiver made in accordance with Rule 119, Texas Rules of Civil Procedure, that waives notice to the party of the final hearing or waives the party's appearance at the final hearing;
....
(16) sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015.
In the
Gerke case, Associate Judge Robert Newey presided by agreement over a final trial in a modification case. After a seven-day trial extended over several months, Judge Newey signed a "final" order of modification. The parties had waived a de novo hearing to the referring court on the record at least twice. The wife filed an appeal to the court of appeals of the modification order and the appellate court held that it lacked jurisdiction because the order was not a final order. The court held:
The powers of an associate judge are enumerated in the Family Code and they include the power to "recommend an order to be rendered in a case." Tex. Fam. Code Ann. § 201.007(a)(10) (emphasis added). Thus, an associate judge has the authority to "recommend" to the referring court that an order executed by the associate judge be "rendered" by the referring court and become a pronouncement, or final order, of that court. The associate judge's proposed order may be adopted, modified, or rejected or sent back to the associate judge by the referring court. Id. § 201.014(a). Such a proposed order becomes final and appealable from the date it is signed by the judge of the referring court, and not before. See id. § 201.016(b). This is specifically required when, as here, the parties have waived a de novo hearing before the referring court. Id. § 201.013(b) (stating that when parties waive de novo hearing before referring court, "the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment.") (emphasis added). There is no evidence in this record that the referring judge signed the proposed order of the associate judge.
....
... section 201.007(a)(16) of the Family Code... authorizes an associate judge to "sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015." Tex. Fam. Code Ann. § 201.007(a)(16). The "appeal" referred to in section 201.015 refers not to an appeal of this Court but to the right to a de novo hearing before the referring court of matters heard by the associate judge. Id. § 201.015. The order itself contains no such waiver of appeal.
....
However, "
[a]ssociate judges do not have the power to render final judgment outside the context of certain limited exceptions listed in section 201.007 of the Family Code."
Graham v. Graham, 414 S.W.3d 800, 801 (Tex. App. - Houston [1st Dist.] 2013, no pet.). Within those limited exceptions, an associate judge does have the power to issue an order that then "constitutes an order of the referring court." Tex. Fam. Code Ann. § 201.007(c). Those exceptions include (1) a final order agreed to in writing, (2) a final default order, (3) a temporary order, or (4) a final order in a case where a party files a waiver of notice or appearance. Id. § 201.007(a)(14). None of these circumstances apply to this case.
....
Here, the associate judge's modification order, which was signed after a trial on the merits and expressly indicates it is approved as to form only, is not an agreed or default judgment or one of the other limited exceptions listed in the Family Code which empower an associate judge to render a final order without the signature of the judge of the referring court. See id. § 201.007(a)(14).
Therefore, the associate judge's modification order "becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment." Id. § 201.013(b). Because there is no evidence in the record that the referring court signed the October 28th order, no final order has been rendered in this modification suit. See id. § 109.002(b) ("An appeal may be taken by any party to a suit from a final order rendered under this title."). Accordingly, we do not have jurisdiction over Mary's appeal.
The
Gerke decision has upset most family court judges, but it is simply applying the very plain words of the Family Code and should not be such a shock (although its results may well shock a lot of people who think their divorce, custody or adoption cases are over when they are not).
Many associate judges have, by agreement of the parties and their attorneys, heard final trials and signed the "final" orders which were not then signed by the elected judge. Gerke means that NONE of those orders are valid, final orders or even renditions. The inability to even render a ruling means that the divorce or change of child custody or increase in child support or adoption has not even been granted.
It appears that the
Gerke case will have to be retried completely because Judge Newey is no longer in office (and may not have been eligible to serve as an associate judge when he heard the case) and the suit has been transferred to a different court because the amicus attorney, Doug York, is married to the elected judge of the court that originally had jurisdiction of the case. So, those parents face a complete and expensive re-trial of their custody case.
The
Clark case involved a modification suit in Brazoria County that went to a "final" trial before Associate Judge Bradshaw, who ruled in favor of the mother. Judge Bradshaw signed the "final" order and the father filed a motion for new trial. Bradshaw then issued an "Associate Judge's Report" in the form of a letter to the parties that said a judgment nunc pro tunc should be granted because of a clerical error (the geographic restriction on the child's residence was omitted from the order) and recommended denying the motion for new trial. No new judgment was submitted and no action was taken on the father's motion for new trial. The father filed for a writ of mandamus to the court of appeals, which was denied because the court of appeals lacks jurisdiction over an associate judge.
In re Clark, No. 01-15-00458-CV (Tex. App.- Houston [1st dist.] 6/23/15)(orig. proc.). The father then wrote Judge Hufstetler and asked him to take action on the case in light of the rejected mandamus and nothing happened. The father then filed a notice of appeal challenging Bradshaw's original order and filed a petition for writ of mandamus because of Judge Hufstetler's failure to take any action on his associate judge's recommended order.
The
Clark decision follows
Gerke and dismisses the father's attempted appeal because the associate judge's order was not signed by the elected, referring court. However, the mandamus was conditionally granted. Here is what the court of appeals wrote (with case citations omitted):
As we explained in
Gerke, "
[a]ssociate judges do not have the power to render final judgment outside the context of certain limited exceptions listed in section 201.007 of the Family Code." None of the exceptions identified by subsection [201.007] (a)(14) are applicable here.
Although an associate judge's power to render judgment is limited, associate judges may, nevertheless, "recommend" to the referring court that an order executed by the associate judge be "rendered" by the referring court and become a pronouncement, or final order, of that court. The associate judge's proposed order may be adopted, modified, or rejected or sent back to the associate judge by the referring court. § 201.014(a)
Such a proposed order becomes final and appealable from the date it is signed by the judge of the referring court. See id. § 201.016(b) This is specifically required when, as here, the parties have waived a de novo hearing before the referring court. Id. § 201.013(b)(stating that when parties waive de novo hearing before referring court, "the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court's signing the proposed order or judgment") (emphasis added).
C. Analysis
Based on this statutory scheme, Judge Hufstetler has a non-ministerial duty to take some action on Associate Judge Bradshaw's order.
So, these two cases make clear that the "final" orders signed only by associate judges after trials that were not defaults or based on signed waivers are not final orders if the orders were not also signed by the elected, referring judge . Since the associate judge cannot even render in such situations, I do not think the parties can now say they were divorced back then but just need an order signed now. Unless the referring judge signed the order, there was no rendition, and thus no divorce or adoption or ruling on the change of custody or child support. All of the appellate attorneys I have talked to do not think that a judge can render retroactively and can only render a judgment now in the present.
Enforcement of these orders signed just by the associate judge could also be a problem because of Section 201.013(a), which states:
Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver.
Some interpret this section to mean that the AJ ruling is in effect and enforceable only if a request for de novo hearing is made. Surely, the AJ's ruling is in effect and enforceable if there is no de novo sought between the time of the ruling and the time an order is entered (and then signed by the presiding judge). I think Sec. 201.013(a) means the AJ's signed order is enforceable even if the elected judge did not sign it, but other board certified lawyers I have talked to disagree.
Orders in child support cases signed by IV-D masters (who are also associate judges) should not be affected by the
Gerke and
Clark decisions (except in contempt cases), because the Family Code gives IV-D masters the power to render and sign final orders. Tex. Fam. Code Sec. 201.1041(a).
Some elected judges and their nervous associate judges are blaming the
Gerke and
Clark opinions on appellate judges who do not know family law. A few think there is an agenda by some to eliminate associate judges. I think the First Court of Appeals simply followed what the law clearly says. This explains why a few courts always have had any order of the associate judge signed by the elected judge - those judges knew and followed the law.
Cool photo of a swimming tiger (not related to this story but totally awesome).
However, there is a conservative, typically Texan political philosophy that the justices who wrote
Gerke and
Clark subscribe to. The Texas Constitution was written after the end of Reconstruction to disperse political power among many elected officials. After living under the "tyranny" of unelected Yankees and their "lackeys," Texas decided that almost all of its officeholders would be elected, from the County Surveyor to the Justices of the Supreme Court. Many in Republican circles strongly feel that unelected associate judges have been over-stepping their authority and violating the spirit of the Texas Constitution. This philosophy actually makes some sense even if it ignores the reality of how the over-crowded family law courts in big counties must operate to survive.
I am not particularly blaming the judges who have not followed the proper procedure because us lawyers also allowed it to happen routinely without complaint. Most attorneys, including me, had never read the statute on associate judges closely enough to realize that almost all of us were doing it wrong.
It is not easy at all to determine how widespread a problem this is. I have already found in my firm's files a three year old divorce decree signed only by the associate judge after a trial (me and the other board certified lawyer did not know to insist the presiding judge sign the decree, so I am clearly not blaming just the judges). Categories of cases that could be effected include:
- "Final" orders in divorce, modification, SAPCR and paternity cases decided by the associate judges (not those involving a waiver of citation and appearance, default or an agreed order approved as to substance and signed by all parties)
- Agreed orders of any sort not signed by all parties. We often settle cases and then for various reasons do not get the parties' signatures. Sec. 201.007(14)(A) says the AJ can sign and render, "(A) a final order agreed to in writing as to both form and substance by all parties." If one party did not sign the agreed order for some reason, the AJ could not render and sign the "final" order.
- Adoptions heard by the AJ since those do not involve a waiver and they are not agreed since testimony must still be presented. Who wants to go tell a family that their adoption order from years ago was not a valid order?
- Name changes heard by the AJ.
Most agreed divorces heard by the associate judges will not be affected by this controversy because such cases involve waiver of citation and appearance and the orders are signed by both parties.
So, going forward this problem is easy to fix: ALWAYS have the elected judge sign any order of the associate judge. Next year, the legislature can clarify the statute and perhaps provide retroactive relief for the many citizens who would otherwise suffer because their "final" orders were not signed by the right judge.
In the meantime, lawyers should review their old, closed cases for situations where the associate judge heard the final trial and then check to see if the elected judge also signed the order. If the presiding judge did not sign the order, we need to contact our former clients and tell them that their cases are not over. The lawyer and law firm are still on the case because our contracts say we will represent the client until the case is over. If the case is not over, then we are still on the hook to serve that client.
Lawyers who determine that a former or new client is effected by an associate judge's order that is not final first must explain to the client how most judges and almost all lawyers allowed this to happen in spite of the clear wording of the Family Code. Next, the attorney must determine if there is a reason to re-litigate or whether (as will usually be the case), the best route is to inform the other side and reach a reasonable agreement on how to really finalize the case.
Some parties are going to try to take advantage of this situation by arguing that their case is really not over and they should relitigate property division or custody or child support. In some cases, that may be the fair thing to do or it may be the only possibility. However, if a party is simply trying to inflict emotional harm on or squeeze more money from a spouse who certainly is not to blame for this mess, the judge can simply refuse to assist and say he or she will award 100% of the assets added since the "divorce" that was not final to the spouse who earned them and state clearly on the record why this is fair. Lawyers should be very cautious about advising clients who seek to take unfair advantage of this situation, especially if the lawyer giving the advise was counsel when the order that is not "final" was entered, since the lawyer probably bears some of the blame for the problem along with the judges.
So, consider this analysis of what lawyers could and/or should do if they find an old case where only the associate judge signed the "final" order (this does not apply to defaults or cases with waivers):
1. The "final" order that is not final after all was in a divorce case. As explained above, the parties are not divorced because the associate judge cannot even render a ruling. This means that the parties have probably continued to accumulate community property and a spouse who has remarried has not legally done so. Things get real complicated if the wife has had children with another man since she thought she was divorced.
A. If not much time has passed since the associate judge tried to divorce the couple and if very little or no new property has been accumulated and if neither spouse has "remarried" and the wife has not had a child with another man, file a motion to enter judgment.
B. If substantial property has been acquired by the spouse you do not represent (and not by your client), consider filing a motion to set aside associate judge's ruling and ask to resume discovery and request another trial setting. Your argument would be that the parties are still married and there is now more community property to value and divide. Be cautious because the judge, whose mistake may have caused this situation, may not like the thought of a party benefiting from a judicial error like this.
C. If your client is the spouse who has accumulated substantial assets since the trial with the associate judge, try to get by with a motion to enter judgment on the associate judge's ruling and hope that your opposing counsel has not read this article.
D. If your client has already remarried since the associate judge signed the divorce decree that is not a final order or even a rendition, you will need to very gently break the news to your client that he or she is still married to the man or woman she tried to divorce and cannot now be legally married to the new person. If that new relationship is strong, then they will simply have to deal with the crazy turn of events, finalize the divorce the right way and get remarried. If the new relationship has turned out to suck already, this development may be a ticket out of that relationship without a divorce. You should probably research and explain the concept of a "putative spouse" to your client in that situation however.
E. If the wife, who is not really divorced, has had a child (or children) with another man since the associate judge signed the divorce decree, then the guy she thought she had divorced is presumed to be the father of that child because it was born during their marriage. Tex. Fam. Code Sec. 160.204. The real father of the child can file an acknowledgment of paternity and the man who is still the spouse can file a denial of paternity to overcome that presumption. Sec. 160.204(b). Many judges will require the pleadings to be amended and the biological father to be made a party to the divorce case that is not yet really over.
2. In cases other than divorce, if your client or the person consulting you "won" the final hearing before the associate judge and likes the outcome: file a motion to enter judgment.
3. In cases other than divorce, if your client or the person consulting with you "lost" the final hearing before the associate judge and does not like the outcome: consider if it is wise to file a motion for new trial and argue that too much time has passed or new facts have developed which prevent the judge now from entering a judgment based on facts as they existed way back when.
4. If neither party really likes the ruling of the associate judge or circumstances have changed and they are not following the ruling any way: try to reach an agreement and then file a joint motion to enter an greed order based on the new agreement.
5. If both parties accept the ruling of the associate judge and simply want an order entered: file a joint motion to enter judgment.
6. If the case that is not really over involved a ruling on child support, each side should try and determine if the obligor's income would result in a different amount based on current income. If a change in child support would be warranted, one party might file a motion to set aside the associate judge's ruling and argue that child support must be based on current income and it would be wasteful to require these people to file a modification action instead of just litigating that issue now before the new "final" order is entered.
7. If a modification suit has been filed to change the "final" order of the associate judge and:
A. The modification suit is still pending: file a motion to dismiss and argue that the court cannot modify an order that was not final and was never rendered or entered.
B. The modification suit has already been disposed of with a new order. I would assume that the modification is void if the prior order was not final, but I could find no authority on that point. I think you could file a motion to set aside modification order as void and interlocutory because in theory the prior case is still pending.
We will need to check with our district clerks to see how they re-open cases that their system say are closed in these situations.
I predict that there will not be an avalanche of motions and litigation involving cases that are not really final because most people will never know this has happened to them or will not know until years in the future. Many litigants may decide to just leave things alone, but that is not a wise choice in the case of a divorce or adoption that is not really a "final" order.
Lawyers may be tempted to not inform their former (current?) clients about this mess because it makes the attorneys look bad as well as the judges. However, this is a mistake almost everyone has made and we each have the duty to tell our clients about such an important development, even if it is bad news for the client.
I would very much appreciate the thoughts and opinions of other lawyers and judges about this issue and I will publish most of what I receive if it is worthwhile, even if it disagrees with the opinions set forth in this article. Please e-mail me at greg@enoslaw.com.
Click here to download the
Gerke opinion.
Click here to download the
Clark opinion.
