dissenting and concurring.
I dissent, in part.
My disagreement with my colleagues centers on the June 2, 1997 order titled “Order on Motion to Set Aside Default Judgment and for New Trial.” The majority acknowledges that Judge Lykos had jurisdiction to sign that order, yet the majority has “stayed” the order in part, apparently holding Judge Lykos had no jurisdiction to sign the whole order.
I agree we should grant mandamus relief and order the judgment in the second trial set aside, because relator timely objected to the second assignment. However, as to the June 2, 1997 order, this case is controlled by supreme court precedent in Remington Arms Co. v. Caldwell, 850 S.W.2d 167 (Tex.1993). Under the first assignment, Judge Lykos had authority to “pass on motions for new trial and all other matters growing out of’ the first trial, the exact same authority granted to the visiting judge in Remington Arms. Id. at 170. Therefore, Judge Lykos had the authority to assess sanctions and issue discovery orders and temporary orders, pending retrial in the case. I would hold the June 2, 1997 order is valid, in toto, and not only in part.
The following chronology of events in the 309th District Court is helpful to an understanding of this case:
April 1990: Parties divorced.
Fall 1996: Father filed a motion to modify, seeking a change of conservatorship for both children.1
11/13/96: Dr. Anderson appointed to conduct evaluation of both parents.
1/28/97: Case set for March 24 trial, by order signed by attorneys for both parties.
2/5/97: Order signed assigning Judge Ly-kos to the 309th District Court for the week of March 24.
3/24/97: Father and attorney appear for trial; mother and attorney do not appear; evidence is heard and recorded by court reporter;2 default judgment is granted in favor of father.
4/15/97: Default judgment is signed.3
*1004/21/97, 4/24/97,
and 5/16/97: First, amended, and supplemental motions to set aside default judgment filed by mother.
5/16/97: Hearing on motions to set aside default judgment conducted before Judge Lykos.4 Judge Lykos orally (1) grants motion for new trial; (2) renders temporary orders pending new trial; (3) assesses sanctions; and (4) sets ease for trial on June 24,1997.
6/2/97: Judge Lykos signs the “Order on Motion to Set Aside Default Judgment and for New Trial,” which was “approved as to form” by both attorneys.
No other orders were entered by Judge Ly-kos until the second trial on June 24, 1997.
The following relief was granted in the June 2, 1997 “Order on Motion to Set Aside Default Judgment and for New Trial,” which memorialized the relief granted at the May 16 hearing. The order:
1. granted the motion for new trial and issued temporary orders, “after having considered the pleadings, hearing the testimony and argument of counsel.” The temporary orders:
a. appointed the father temporary managing conservator and the mother temporary possessory conservator;
b. set out the rights and duties of both parents with regard to the two children, including visitation rights .and support duties; and
c. enjoined both parties from making disparaging remarks about the other party to the children;
2. ordered the mother to deliver all interrogatories and production of documents to the husband’s attorney;
3. ordered the mother to pay $400 in attorneys’ fees as sanctions; and
4. set the ease for trial on June 24.5
In Remington Arms, there was a jury trial before a visiting judge, and the jury returned a verdict for the defendant. 850 S.W.2d at 169. The defendant filed a motion for judgment on the verdict, and a hearing was held before the visiting judge. Id. After the hearing, the judge declared a mistrial, struck the defendant’s pleadings, rendered a partial default judgment against the defendant, prohibited the defendant from conducting .further discovery, and ordered that upon retrial the defendant could not introduce certain evidence. Id. The defendant sought mandamus relief, asserting in part that the visiting judges’ order of assignment did not authorize him to act further after he granted the mistrial. Id. at 170. The supreme court disagreed, stating:
The order of assignment states:
This assignment is for the period ... beginning the 10th . day of January, 1990, provided that this assignment shall continue after the specifies [sic] period as may be necessary for the assigned Judge to.complete trial of any case begun during the period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge here and assigned during this period.
The assignment order clearly authorized Judge Martinez to act on posttrial matters “growing out of’ this ease. The sanctions order and the default judgment are certainly matters growing out of the trial of this case and within the scope of Judge Martinez’ assignment.
850 S.W.2d at 170 n. 5 (emphasis added).
As did the visiting judge in Remington Arms, Judge Lykos had jurisdiction to enter sanctions, discovery orders, and temporary orders, which are “matters growing out of the trial of this case and within the scope of [her] assignment.” Whether Judge Lykos abused her discretion when she entered such orders is a different question, as in Remington Arms. Based on the incomplete record *101before us, we cannot determine whether the trial judge clearly abused her discretion.6
Because Judge Lykos acted within the scope of her authority when she orally ruled on May 16, and thereafter signed the written order on June 2, 1997, only orders issued after relator timely objected to Judge Lykos’ second assignment should be stayed as part of the granting of mandamus relief.
. Our record does not contain the motion to modify.
. No statement of facts from the March 24, 1997 trial has been filed in this case.
. Our record does not contain a copy of the default judgment.
. Although the hearing was recorded and included evidence, relator has only provided us with a partial statement of facts covering only Judge Lykos’ oral rendition of her decision at the end of the hearing.
. After the evidentiary trial on June 24, at which both parties appeared with counsel and put on evidence, Judge Lykos again named the father the proper party to be managing conservator. It is this second trial that Judge Lykos did not have authority to preside over because of the timely objection filed by the mother.
. As indicated in footnotes one through four, the record before us is inadequate for such a defer-mination.