Michael Johnston Baker v. Sara Nicole Curphy ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00528-CV
____________________
MICHAEL JOHNSTON BAKER, Appellant
V.
SARA NICOLE CURPHY, Appellee
_______________________________________________________________________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 14-04-03890-CV
________________________________________________________ _____________
MEMORANDUM OPINION
In an appeal from a final judgement for divorce and for custody and support
of the parties’ children, Michael Johnston Baker contends that he is entitled to a
new trial—either because the trial court failed to make a record of a portion of the
proceedings or because a record was made but has been lost or destroyed. We
conclude Baker’s issues lack merit, and we affirm the trial court’s judgment.
In suits affecting the parent-child relationship, a “record shall be made as in
civil cases generally unless waived by the parties with the consent of the court.”
1
Tex. Fam. Code Ann. § 105.003(c) (West 2014). “A party, however, may waive
the making of a record by express written agreement or by failing to object to the
lack of a record during the hearing.” In re D.J.M., 114 S.W.3d 637, 639 (Tex.
App.—Fort Worth 2003, pet. denied). Baker argues that In Re D.J.M. is
distinguishable because the judgment in that case recited that the record of
testimony was waived by the parties. See id. Whereas, the judgment in this case
states, “[t]he record of testimony was duly reported by the court reporter for the
[410th] Judicial District Court of Montgomery County, Texas.”
The reporter’s record includes three hearings: (1) an April 17, 2014 hearing
on a motion for a protective order and temporary custody and support orders; (2) a
July 31, 2014 hearing on an application for a modified protective order; and (3) the
final divorce hearing held on March 25, 2015. The exhibits admitted at each
hearing have been included in the reporter’s record. Baker complains that the
March 25, 2015 divorce hearing is incomplete. The reporter’s record of the divorce
hearing begins with the notation “(DISCUSSION OFF THE RECORD)”. The
court reporter then began recording the proceedings, after which the trial court
swore in the witnesses, and Curphy’s counsel recited into the record the trial
court’s findings on the property division, custody, and support. Baker’s counsel
sought and obtained clarification on several points. Curphy and Baker each
2
testified with regard to whether the property division was just and right and
whether the custody and support orders were in the best interests of the children.
At one point in the hearing, the trial court referred to the petitioner’s exhibit list,
asked Baker’s counsel if he had seen all of the exhibits, and stated:
And these were all considered by the Court and they were
admitted as exhibits for the Court’s consideration, along with, off the
record, we had a good hour, two hours of discussion with counsel and
proffers of proof.
And based upon all of this evidence and the proffers of counsel
is the underlying basis and, of course, my knowledge of the history of
the case and prior orders and findings by the Court, including the
protective order, was the basis of my rulings and decisions. Okay?
The record before us demonstrates that Baker did not object to the Court’s
failure to make a record of the proffers of proof, nor did Baker attempt to make a
bill of exception to create a record showing the objections that he lodged to the
exhibits during the proceedings that were not reported. See Gray v. Gray, 971
S.W.2d 212, 218 (Tex. App.—Beaumont 1998, no pet.). Further, Baker has not
shown that any oral testimony was not recorded. See Stubbs v. Stubbs, 685 S.W.2d
643, 645 (Tex. 1985) (explaining that making a record “means that all oral
testimony must be recorded”). Baker did not bring to the trial court’s attention that
he objected to the manner in which the final hearing was handled at the time of the
hearing, when the trial court may have addressed his concerns. We conclude that
3
Baker did not preserve this issue for appellate review. See Tex. R. App. P. 33.1;
see also Sareen v. Sareen, 350 S.W.3d 314, 316 (Tex. App.—San Antonio 2011,
no pet.) (holding that the complaining party must object to the court reporter’s
failure to record testimony). We overrule issue one.
In issue two, Baker contends that if a record was made but was not
produced, he is entitled to a new trial because the record was lost or destroyed
through no fault of his own. See generally Tex. R. App. P. 34.6(f). Rule 34.6(f) is
inapplicable where the hearing was never recorded in the first place. Nabelek v.
Dist. Attorney for Harris Cty., 290 S.W.3d 222, 230 n.9 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). We overrule issue two and affirm the trial court’s
judgment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on September 15, 2016
Opinion Delivered September 22, 2016
Before Kreger, Horton, and Johnson, JJ.
4