in the Interest of D.D.A

• Court: Court of Appeals of Texas
• Decided: June 8, 2006
• Docket: 14-05-00046-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 8, 2006

Affirmed and Memorandum Opinion filed June 8, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00046-CV

IN THE INTEREST OF D.D.A.

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 03FD02658

M E M O R A N D U M   O P I N I O N

Appellant, Lee Arthur Bush, appeals the trial court=s order awarding retroactive child support in a paternity action.  He raises two issues on appeal, asserting that the trial court abused its discretion in awarding retroactive child support and that he should be entitled to abate the appeal to obtain a record from the hearing.  We affirm.

The Texas Attorney General filed a petition to establish appellant=s paternity of the child, D.D.A. and establish child support.  The case was heard by a Title IV-D associate judge.^[1]  On November 15, 2004, the associate judge signed an order finding appellant to be the child=s father and awarding retroactive child support in the amount of $12,425.  Appellant did not appeal this order to the referring district court; accordingly, the order became the order of the referring court after the three-day period in which to appeal had passed.  See Tex. Fam. Code Ann. ' 201.1041(a) (Vernon Supp. 2005).^[2]  Appellant filed a notice of appeal to this court on December 14, 2004. 

We first address the status of the record in this appeal.  Appellant requested that this court abate his appeal so that he could obtain a Arecorder=s record.@  It is undisputed that no official court reporter or court recorder was present at the hearing, but the associate judge tape recorded the hearing.  This court previously denied appellant=s motion to abate the appeal to permit supplementation of the record with the tape recording made by the associate judge.  Appellant now re-urges his request for supplementation of our record.

As an initial matter, we note that appellant did not make a timely or proper request for the record.  The request must be made to the Aofficial@ court reporter or recorder A[a]t or before the time for perfecting the appeal.@  Tex. R. App. P. 34.6(b)(1).  By appellant=s own admission, he did not request the record until February 25, 2005, more than sixty days after his notice of appeal was filed.  Not only was the request over sixty days late, it was not directed to the proper party.  Appellant=s counsel mailed a letter to the 306th District Court requesting that the audio recording made during trial be sent to this court.  After being informed that the tape recording was not a part of the clerk=s record on file with the 306th District Court, appellant then requested the tape recording from counsel for the Attorney General, who also was not in charge of maintaining the recording.  While there is no Aofficial@ court recorder in this case; appellant=s request was not made to the Ade facto@ recorder, the IV-D associate judge, but instead was made to the trial court and counsel for appellee.  It is unclear from our record whether appellant ever requested the tape recording from the IV-D associate judge. 

Secondly, the Texas Supreme Court has adopted rules for making an electronic recording of court proceedings.  See RULES GOVERNING THE PROCEDURE FOR MAKING A RECORD OF COURT PROCEEDINGS BY ELECTRONIC RECORDING, reprinted in TEXAS RULES OF COURT B STATE 439-440 (West 2006).  The rules have specific requirements governing the preparation and filing of the record and the duties of the court recorder designated by the trial court.^[3]  Id.  In addition, the Texas Rules of Appellate Procedure require court recorders to perform specific duties, in addition to those for court reporters, to ensure the proper functioning of the electronic recording system so that a transcribable recording is made.  See Tex. R. App. P. 13.1, 13.2.  The rule incorporates the requirement for a detailed log of proceedings to be filed with the clerk of the court.  Finally, the rule governs storage of the original recording and requires that it be safeguarded so that there is no unauthorized access.  In the absence of an official court recorder and compliance with these rules, this court has no assurance that the tape recording is complete, accurate or capable of being transcribed.

The Supreme Court has authorized courts in Bexar, Brazos, Dallas, Harris, Kleberg, Liberty, and Montgomery Counties, and the 39th District Court in Haskell, Throckmorton, Stonewall and Kent Counties, to make a record in civil proceedings by electronic tape recording.  See RULES GOVERNING THE PROCEDURE FOR MAKING A RECORD OF COURT PROCEEDINGS BY ELECTRONIC RECORDING, reprinted in TEXAS RULES OF COURT B STATE at 441.  Galveston County is not included in the order.  We are not authorized to consider tape recordings in the absence of a supreme court order.  See, e.g., Henning v. Henning, 889 S.W.2d 611, 612 n. 1 (Tex. App.CHouston [14th Dist.] 1994, writ denied) (noting court had no authority to consider tapes from proceeding before master in Fort Bend County, which is not a county included in supreme court order); Ex parte Occhipenti, 796 S.W.2d 805, 807 (Tex. App.CHouston [1st Dist.] 1990, orig. proceeding) (holding tape recordings could not be considered prior to supreme court=s order authorizing their use); but see In the Interest of B.R.G., 48 S.W.3d 812, 816-17 (Tex. App.CEl Paso 2001, no pet.) (approving use of fully audible master=s tape recording where master=s affidavit certified audiotape was prepared and certified according to court=s standards).

Finally, the Family Code does not require the IV-D associate judge to provide a court reporter.  Before the 2003 amendments to the Family Code, a IV-D master was required to Atake testimony and make a record in all Title IV‑D cases.@ Act of April 20, 1995, 74th Leg., ch 20 ' 1, 1995 Tex. Gen. Laws 113, 242.  The legislature deleted this provision in 2003, and the amended statute is silent with respect to a record of proceedings before a IV-D associate judge.  See Act of May 27, 2003, 78th Leg., R.S., ch. 1258, ' 8, 2003 Tex. Gen. Laws 3564, 3565 (eff. Sept.1, 2003) (codified at Tex. Fam. Code Ann. ' 201.104 (Vernon Supp. 2005)).  With some exceptions for referrals of contempt findings not applicable here, the procedures for appeal of IV-D cases to the district court are governed by section 201.015, the statute applicable to appeals from rulings of other family court associate judges.  See Tex. Fam. Code Ann. ' 201.1042(a) (Vernon Supp. 2005).  Section 201.015 specifies that on appeal to the referring court, Athe court may also consider the record from the hearing before the associate judge, including the charge to and verdict returned by a jury, if the record was taken by a court reporter.@  Tex. Fam. Code Ann. ' 201.015(c) (Vernon 2002) (emphasis supplied).  Our review should likewise be limited to records taken by court reporters (or court recorders, if electronic recording is authorized).

For these reasons, we denied appellant=s motion to abate the appeal so that he could supplement our record with a tape recording from the hearing below.  We likewise overrule his second issue on appeal raising the same argument.

In appellant=s first issue, he asserts the IV-D associate judge abused her discretion in granting retroactive child support.  A trial court has broad discretion in awarding child support, including retroactive child support.  Cohen v. Sims, 830 S.W.2d 285, 288 (Tex. App.CHouston [14th Dist.] 1992, writ denied). 

We review the decision of the trial court to award retroactive child support under the abused discretion standard.  See In re Tucker, 96 S.W.3d 662, 668 (Tex. App.CTexarkana 2003, no pet.).  Whether the court properly exercised its discretion depends upon not only whether it acted with reference to guiding rules and principles, In re Hamer, 906 S.W.2d 263, 265 (Tex. App.CAmarillo 1995, no writ), but also whether the decision is supported by the evidence.  Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.CHouston [14th Dist.] 1996, no writ) (holding that while the existence of evidence supporting the trial court=s decision is not an independent ground of attack, it is nonetheless a factor to consider when determining if the trial court abused its discretion).

There is no record of the evidence presented in this case.  We cannot determine whether the trial court abused its discretion in awarding retroactive child support without a record from the hearing.  See In re J.A.G. 18 S.W.3d 772, 774 (Tex. App.CSan Antonio 2000, no pet.).  Thus, appellant has presented nothing for us to review.  See In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.CAmarillo 1999, no pet.).  Based on the record before us, the trial court did not abuse its discretion in awarding retroactive child support.  See In re Guthrie, 45 S.W.3d 719, 727 (Tex. App.CDallas 2001, pet. denied).  Therefore, we overrule appellant=s first issue.

We affirm the judgment of the trial court.

PER CURIAM

Judgment rendered and Memorandum Opinion filed June 8, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

---

^[1]  In 2003, the legislature changed the title of a child support master to associate judge for Title IV‑D cases.  See Act of May 27, 2003, 78th Leg., R.S., ch. 1258, '' 2‑15, 25‑28, 2003 Tex. Gen. Laws 3564, 3564‑68, 3570 (eff. Sept.1, 2003).  

^[2]  The order was also signed by the presiding judge on November 23, 2004.

^[3]  For example, the court recorder is required to maintain and file a log including (1) the number and style of the case before the court; (2) the name of each person speaking; (3) the event being recorded; (4) each exhibit offered, admitted, or excluded; (5) the time of day of each event; and (6) the index number on the recording device showing where each event is recorded.  RULES GOVERNING THE PROCEDURE FOR MAKING A RECORD OF COURT PROCEEDINGS BY ELECTRONIC RECORDING at 439;Tex. R. App. P. 13.2(b).