
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
    )    No. 08-03-00503-CV
IN THE INTEREST OF E.C.M., A CHILD.      )
)Appeal from
)
)     383rd District Court
)
) of El Paso County, Texas
)
)          (TC# 85-2096)

O P I N I O N

            This is an appeal from the trial court’s confirmation that Ernest Dominguez owes Adalina
S. McClure


 $63,469.80 in unpaid child support for E.C.M.  Finding no error, we affirm.
FACTUAL SUMMARY
            E.C.M. was born on September 6, 1981.  Dominguez and McClure were divorced on June
28, 1985, and Dominguez was ordered to pay $180 per month in child support.  On May 20, 2003,
the Attorney General filed a motion to confirm child support arrearages and sought recovery in the
amount of $62,700.30.  After a hearing by the Title IV-D master, judgment was rendered against
Dominguez for $63,469.80.  Dominguez was ordered to pay $1,200 per month to liquidate the
arrearage.  On October 3, 2003, Dominguez filed a motion for new trial, which was overruled by
operation of law.  A notice of appeal was filed on December 3, 2003.
TEXAS CIVIL PRACTICE & REMEDIES CODE 
AND CHILD SUPPORT JUDGMENTS

            In Point of Error One, Dominguez argues that Texas Civil Practice & Remedies Code
Sections 31.006 and 34.001 are applicable to child support judgments.  Specifically, he contends that
any child support remaining unpaid for more than ten years cannot be enforced against him.
            “A dormant judgment may be revived by scire facias or by an action of debt brought not later
than the second anniversary of the date that the judgment becomes dormant.”  Tex.Civ.Prac.&Rem.
Code Ann. § 31.006 (Vernon 1997).  If a writ of execution is not issued within ten years of 
judgment, the judgment is dormant and execution may not be issued unless the judgment is revived. 
Tex.Civ.Prac.&Rem.Code Ann. § 34.001(a).  However, the Texas Family Code provides that a
court retains jurisdiction to confirm the total amount of child support arrearage and to render
judgment for past-due support until the date all current child support, medical support, and child
support arrearages, including interest and any applicable fees and costs, have been paid.
Tex.Fam.Code Ann. § 157.005(b)(Vernon 2002).


  An order or writ for income withholding may
also be issued until all current support, arrearages, interest, and any applicable fees and costs,
including court-ordered attorney’s fees and court costs, have been paid.  Tex.Fam.Code Ann.
§ 158.102. 
            Dominguez relies upon Huff v. Huff, 648 S.W.2d 286 (Tex. 1983) to support the proposition
that child support judgments fall within the purview of the Texas Civil Practice and Remedies Code. 
We disagree inasmuch as Huff has been superseded by statutory amendments.  See In the Interest of
S.C.S., 48 S.W.3d 831, 835 (Tex.App.--Houston [14th Dist.] 2001, pet. denied)(reliance on Huff is
inappropriate in light of the subsequent statutory changes); In the Interest of Kuykendall, 957 S.W.2d
907, 910 (Tex.App.--Texarkana 1997, no pet.)(since Huff, a number of changes have been made in
the statutory underpinning of an obligee’s right to recover unpaid child support).  For example, a
series of amendments removed the ten-year limitation for enforcement of unpaid and owing child
support, and the Legislature removed “and owing” from the statute.  S.C.S., 48 S.W.3d at 835, citing
Kuykendall, 957 S.W.2d at 910.  Under the rule in effect at the time Huff was decided, support
payments which had been delinquent for more than ten years were no longer considered “owing.” 
Id., citing Kuykendall, 957 S.W.2d at 910.  These changes were interpreted to reflect legislative
intent to permit courts to render confirming judgments for all unpaid child support, not just those
payments accruing within the last ten years.  Id. at 835-36, citing Kuykendall, 957 S.W.2d at 910.
The general ten-year dormancy provision of the Texas Civil Practice & Remedies Code only comes
into play once the child support arrearages are confirmed.  Id. at 836, citing Kuykendall, 957 S.W.2d
at 910.  The dormancy period begins to run upon the signing of the judgment confirming the
arrearages and not from the due date of individual payments.  Id., citing Kuykendall, 957 S.W.2d at
910.  
            While Dominguez is correct in his contention that Texas Civil Practice and Remedies Code
Sections 31.006 and 34.001 are applicable to child support judgments, the ten-year dormancy
provision does not begin to run until the arrearages are confirmed.  See S.C.S., 48 S.W.3d at 836. 
Point of Error One is overruled.
CREDIT FOR PAYMENTS MADE
            In Point of Error Two, Dominguez complains that the trial court erred in failing to credit
direct payments he made to McClure until 1996.  He argues that the trial court refused to credit the
direct payments because the divorce decree ordered him to make payments through the registry of
the court.  This case proceeds without benefit of a reporter’s record.  In the absence of the record,
we cannot determine whether Dominguez requested a credit nor can we ascertain the amount of
direct payments actually made to McClure.  Point of Error Two is overruled.
LOST OR DESTROYED REPORTER’S RECORD
            In Point of Error Three, Dominguez seeks remand because the reporter’s record is
unavailable.  See Tex.R.App.P. 34.6(f).  He complains that the audio tape recording from the hearing
was provided to court reporter, Kathleen Supnet, for transcription but she has submitted an affidavit
attesting that the recording was inaudible and a transcript could not be produced.  McClure responds
that Dominguez (1) has not shown the tape recording is inaudible since Supnet was not the official
court reporter and her affidavit was outside the appellate record; (2) did not timely request the
reporter’s record; and (3) has not shown the impossibility of an agreed record.
An appellant is entitled to a new trial under the following circumstances:
 
(1) if the appellant has timely requested a reporter’s record;
 
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the
court reporter’s notes and records has been lost or destroyed or--if the proceedings
were electronically recorded--a significant portion of the recording has been lost or
destroyed or is inaudible;
 
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or
destroyed exhibit, is necessary to the appeal’s resolution; and 
 
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be
replaced by agreement of the parties, or the lost or destroyed exhibit cannot be
replaced either by agreement of the parties or with a copy determined by the trial
court to accurately duplicate with reasonable certainty the original exhibit.

Tex.R.App.P. 34.6(f).  While we certainly agree that the reporter’s record is necessary to this appeal
in light of our disposition of Point of Error Two, Dominguez has failed to fully comply with the
procedural rules.  He has not demonstrated that the record cannot be replaced by agreement of the
parties or by seeking the trial court’s determination of the accuracy of a duplicate exhibit detailing
the direct payments made, assuming such an exhibit exists.  See Tex.R.App.P. 34.6(f)(4).  We
overrule Point of Error Three and affirm the judgment of the trial court.


August 16, 2005                                                          
                                                                                    ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.
