Sareen v. Sareen

Citations: 350 S.W.3d 314; 2011 Tex. App. LEXIS 5256; 2011 WL 2712743Docket: 04-10-00753-CV

Court: Court of Appeals of Texas; July 13, 2011; Texas; State Appellate Court

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Rajeev Sareen appealed a final divorce decree, contesting the trial court's decisions on spousal maintenance, child support, and attorney's fees. He argued that the evidence was insufficient to support the awarding of spousal maintenance to Anjana Sareen, the attorney's fees related to child support enforcement, and the monthly child support amount of $2,500. The trial court had found Rajeev liable for waste of the community estate, constructive fraud, and breach of fiduciary duty, leading to the award of spousal maintenance and attorney's fees totaling $80,000, with $40,000 designated for child support enforcement. The appellate court noted the lack of a complete reporter's record, as key testimonies from Rajeev and an accountant were not transcribed, which hindered a full review of the evidence. Despite Anjana's identification of the missing testimony, Rajeev did not address this deficiency in the appeal process. The appellate court ultimately affirmed the trial court's judgment.

Rajeev has not claimed any errors due to inaccuracies in the reporter's record or any loss or destruction of the record, as outlined in TEX.R.APP. P. 34.6(e) and (f). There is a noted conflict in appellate courts regarding the burden of responsibility for the court reporter to transcribe the record. Some cases, such as Rittenhouse v. Sabine Valley Ctr. Found. Inc., state that the court reporter is required to create a full record unless parties agree otherwise, while others, like Nabelek v. Dist. Attorney of Harris County, suggest that the requesting party bears that responsibility.

This conflict arises from differing interpretations of rule 13.1 of the Texas Rules of Appellate Procedure—which mandates the court reporter attend and record proceedings unless excused by agreement—and section 52.046(a) of the Texas Government Code, which stipulates that a reporter shall transcribe testimony only upon request. While some courts have concluded that the statute takes precedence over the rule, it does not need to be resolved in this case as Rajeev has not claimed error regarding the court reporter's failure to record his and the accountant's testimony, nor did he object to this failure.

Prior cases indicate that to preserve a complaint about the reporter's failure to transcribe testimony for appellate review, the party must have objected to it. The appellate court can only review cases based on a record showing that the complaint was raised in the trial court. Consequently, since Rajeev has not preserved any complaint regarding the missing testimony from the court reporter, there is nothing for the court to review. The appellant is responsible for providing an appellate record demonstrating reversible error, and absent a relevant record, the reviewing court must assume that the evidence presented is legally and factually sufficient to support the trial court's order or judgment.

Without a complete reporter's record, reviewing the evidence for sufficiency is impossible. In *Englander Co. v. Kennedy*, the Texas Supreme Court stated that a complete record or an agreed statement of facts is necessary when challenging the sufficiency of evidence supporting a critical finding. Rajeev's complaints relate to alleged insufficiencies of evidence, but the absence of a complete reporter's record leads to a presumption that the evidence was sufficient to support the trial court's findings on spousal support, child support, and attorney's fees, resulting in the overruling of Rajeev's issues. The reporter's record lacks testimony from two witnesses, which the court reporter confirmed was not requested for transcription. This case does not involve the rules for partial reporter's records, as the missing portions were not part of a requested transcription. Consequently, since Rajeev has not preserved any complaint about the missing testimony, the court affirms the trial court's judgment, assuming the untranscribed evidence supports the findings.