                                     NO. 07-05-0223-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL E

                                   APRIL 5, 2007
                          ______________________________

             IN THE INTEREST OF N.W.S., M.K.S. AND W.R.S., CHILDREN
                       _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 90-531,435; HONORABLE DAVID GLEASON, JUDGE1
                        _______________________________


Before QUINN, C.J., and CAMPBELL, J., and BOYD, S.J.2


                                   MEMORANDUM OPINION


      Chester Wayne Sullivan appeals an order holding him in contempt for failure to pay

child support and denial of his motion seeking credit for excess payments. We affirm.


      The marriage of Chester and Nancy Sullivan was terminated by a 1993 divorce

decree. That decree required Chester to pay $500 per month as support for the three

children of the marriage. A May 1998 modification order increased Chester’s monthly




      1
          Sitting by assignment.
      2
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
support obligation to $565 and directed Nancy to obtain medical insurance coverage for

each child. It also provided:


       As additional support, the Court ORDERS [Chester] to pay one-half of the
       medical insurance premiums paid by [Nancy] on behalf of the children. The
       Court finds that at the time of this hearing one-half of the medical insurance
       premium for the children is $126.13 per month. Said monthly payments shall
       be made at the same time and in the same manner as the regular child
       support payments and shall begin on January 1, 1998, and shall continue for
       as long as any child receives medical insurance coverage through [Nancy].


The order directed Nancy to inform Chester “of any changes in the children’s medical

insurance premium within ten days of the change” and provided that Chester “shall begin

paying the modified amount of medical insurance premium reimbursement on the first day

of the month following receipt of notification of the change.”


       At the time of the 1998 order Nancy worked for Mitchell County. It is undisputed she

left that job in November or December 1998 and the children’s medical insurance through

that employer ended. Nancy worked for four other employers through the final hearing in

this action. At that hearing she asserted she provided medical insurance for the children

through each employer but she did not notify Chester of any changes in the medical

insurance premiums. Chester continued to pay the same amount for medical insurance

through June 2002. That month he reduced his support payments to the base amount due

for the one child remaining under 18. Two income tax refunds with a total value of $4,824

were garnished and applied to Chester’s child support obligations.


       In May 2004 Chester filed a motion seeking a determination that he was entitled to

credit for overpayment of support and a declaration he was not obligated to reimburse

                                             2
Nancy for medical insurance. The motion alleged Nancy had not paid any medical

insurance premiums for the children since January 1999. Chester sought credit against

his current support obligations for medical insurance support payments he made since

January 1999 and the garnished income tax refunds. In November 2004 Nancy moved for

enforcement of the 1998 support order. She requested the past due support be reduced

to judgment, that Chester be held in contempt, fined and incarcerated until he complied

with the support order, and requested an increase in his support obligation.


       Both motions were heard at an April 2005 hearing where the parties and their

attorneys were the only witnesses. Chester presented Nancy’s deposition testimony that,

with the exception of her last employer, she had obtained medical insurance for the

children after leaving Mitchell County but she did not recall the amounts of the medical

insurance premiums. Nancy admitted she could not remember the medical insurance

premiums paid through other employers but her recollection was that the amount increased

every year and she decided to pay the increases rather than seek additional

reimbursement from Chester.


       The trial court signed an order holding Chester in contempt, increasing his support

obligation, and shifting to him the burden to obtain medical insurance for the youngest

child, and denied the relief requested in his motion. Chester now challenges the trial

court’s rejection of his position that he was not obligated to make medical insurance

payments after December 1998 and he was entitled to credit for the payments made.

Chester’s first twelve issues each rest on the trial court’s determination he had a continuing

obligation to reimburse Nancy for one half the cost of medical insurance for the children,

                                              3
in the amount set out in the May 1998 order. His final issue asserts entitlement to a new

trial because of an incomplete record on appeal. We initially address this issue.


       Chester argues he is entitled to a new trial because exhibits introduced at the

hearing were not included in the reporter’s record and cannot be located. Citing Rogers

v. Rogers, 561 S.W.2d 172 (Tex. 1978), Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697

(1936), and CarStar Collision v. Mercury Finance 23 S.W.3d 368 (Tex.App.–Houston [1st

Dist.] 1999, pet. denied), he contends this defect prevents him from challenging the

sufficiency of the evidence on appeal and constitutes reversible error.


       Rule of Appellate Procedure 34.6(f) provides an appellant is entitled to a new trial

if four conditions are met: (1) the appellant must timely request a reporter’s record, (2) a

“significant exhibit or a significant portion of the court reporter’s notes and records have

been lost or destroyed,” (3) the lost or destroyed portion of the record is necessary to

resolution of the appeal, and (4) it cannot be replaced by agreement of the parties or, in

the case of an exhibit, with a copy determined by the trial court to accurately duplicate the

original. Appellant’s brief does not address any of these requirements for entitlement to

a new trial.


       The clerk’s record contains appellant’s request for preparation of the reporter’s

record. The reporter’s record supports the description of the missing exhibits in appellee’s

brief. The first two were notices from the IRS that appellant’s tax refunds had been




                                             4
garnished. The fact and amounts of the garnishments were shown in the testimony.3 Four

additional tax documents were introduced. Two were K-1 statements for trusts of which

appellant was a beneficiary and two were appellant’s tax returns. The documents were

introduced to show appellant’s resources and are not relevant to appellee’s payment of

medical insurance premiums. The final exhibit was a COBRA medical insurance coverage

statement. The amount of that bill also was revealed in the testimony. Nothing in the

record supports a conclusion the documents are necessary to the appeal or appellant was

unable to obtain replacement copies or obtain an agreement to substitute copies for the

lost documents. The appellants in Rogers, Victory and CarStar were deprived of any

reporter’s record on appeal. Appellant has not met the requirements of Rule 34.6(f) and

we overrule his thirteenth issue.


       All of appellant’s remaining issues arise from the trial court’s rejection of his view

that he was not obligated to pay half the cost of medical insurance for the children after

December 1998. He does not contend, as alleged in his original motion, that Nancy did

not pay for any medical insurance coverage for the children after December 1998. He now

argues her failure to notify him of changes in the children’s medical insurance premiums

as required by the 1998 order terminated his medical insurance obligation under that order.

The trial court properly rejected appellant’s reading of the 1998 order.




       3
       Those amounts were reflected also in the financial activity reports from the Child
Support Division of the Attorney General’s Office, copies of which were appended to
Nancy’s pleadings. The same information is appended to appellant’s brief on appeal.

                                             5
       Under appellant’s reading of the order, Nancy’s obligation to notify him of changes

in the medical insurance premium was a condition precedent to his liability for half the cost

of medical insurance. That view is contrary to the plain language of the 1998 order.

Appellant’s liability under that order was conditioned only on Nancy obtaining medical

insurance for the children and payment of premiums. The event terminating appellant’s

liability for half the cost of medical insurance was set out with equal clarity; the obligation

“shall continue for as long as any child receives medical insurance coverage through

[Nancy.]”4


           Appellee’s failure to notify appellant of changes in medical insurance premiums did

not prevent him from establishing he had paid more than half the amount appellee paid for

the children’s medical insurance. As the movant on that issue he bore the burden to

establish that fact. See London v. London, 192 S.W.3d 6, 15 (Tex.App.–Houston [14th

Dist.] 2005, pet. denied) (motion to modify), In re T.J.L., 97 S.W.3d 257, 268 (Tex.App.–

Houston [14th Dist.] 2002, no pet.) (motion to enforce support order). He presented no

evidence establishing he had paid more than one half the medical insurance premiums

paid by appellee. To the degree of a conflict between appellee’s testimony the premiums

had increased, and evidence she had paid $55.83 each two weeks for some unspecified

period, it was within the province of the trial court to resolve that conflict. Harco Energy,

Inc. v. Re-Entry People, Inc., 23 S.W.3d 389, 395 (Tex.App.–Amarillo 2000, no pet.).




       4
        This phrase must also be read in conjunction with the provision ordering appellee
to maintain medical insurance “so long as child support is payable for that child.”

                                                6
       The evidence is legally and factually sufficient to support the trial court’s

determination appellant was obligated to pay $126.13 per month as additional child support

from January 1, 1998 through April 1, 2002 and that he failed to do so. We overrule

appellant’s issues 1, 2, 3, 4, 5, 7, 8, 9, and 10.


       The evidence is legally and factually sufficient to support the trial court’s finding of

an arrearage of $2,476.42 and grant of a judgment in that amount. The account activity

report from the Attorney General’s Office on which the trial court relied affirmatively showed

he was given credit for the tax refunds obtained through garnishment. We overrule

appellant’s issues 6, 11, and 12.


       Finding no merit in any of appellant’s issues, we affirm the order of the trial court.




                                                     James T. Campbell
                                                         Justice




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