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Click here for the full text of this decision FACTS:This appeal arises from a suit affecting the parent-child relationship (SAPCR), which was referred by agreed order to an associate judge for a final hearing. In five issues, Appellant Sanford J. Marks complains that the trial court erred by failing to make a record of the proceedings and challenges the sufficiency of the evidence to support certain trial court findings. HOLDINGAffirmed. Marks contends he is entitled to a reversal of the trial court’s judgment because no record was made of the final trial before the associate judge in this case. Marks cites Texas Family Code �105.003(c) for the proposition that the making of a record in this instance was mandatory. Section 105.003(c) of the family code provides that 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.” This provision places an affirmative duty upon the trial court to insure that the court reporter makes a record of proceedings involving parent-child relationships. In Re: Vega, 10 S.W.3d 720 (Tex. App. – Amarillo 1999, no pet.) (citing Stubbs v. Stubbs, 685 S.W.2d 643, 645-46 (Tex. 1985). 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. Ex parte Jones, 700 S.W.2d 15 (Tex. App. – Eastland 1985, no writ). This possibility of waiver “does not deny a party’s right to a record, but merely prevents one from ‘lying behind the log.’ ” Thus, “ [w]hen a party is present before the court, due diligence must be exercised in seeking a record.” Here, Marks was present and represented by counsel at the final hearing before the associate judge on June 28, 2002. Thus, it is possible that Marks expressly waived the making of a record with the court’s valid consent. Marks claims, however, that nothing in the record indicates he did waive the making of a record or that the court consented to such a waiver. The court does not agree. The final order modifying Joiner’s and Marks’ parental relationship with D.J.M. clearly recites that “[t]he record of testimony was waived by the parties with the consent of the Court.” Absent evidence to the contrary, the court views recitations contained in the trial court’s judgment and records as true. Marks contends evidence contrary to the final order’s waiver statement exists. He points out that he objected to the statement in the final order that he had waived the right to a record. A notation by the associate judge indicates that Marks “objected to entry of final order on page 1-Record-ORDER says record waived-Assoc. Judges’ Rec of 6-28-02 does not contain such a finding.” Although Marks did object to the inconsistency between the associate judge’s report and the final order – that is, the associate judge’s report, unlike the final order, did not affirmatively state that the parties waived the making of a record with the court’s consent – this objection is not evidence that Marks objected at the final hearing to the absence of a court reporter. Marks never claimed in the trial court, nor does he claim on appeal, that he actually objected to the absence of a court reporter at the final hearing. The court will not construe Marks’ objection to the waiver recitation contained the final order to mean that Marks actually asserted an objection to the absence of a court reporter at the final hearing. To hold otherwise would promote the very “lying behind the log” denounced by the Jones court. The appellate record reflects that Marks was present and represented by counsel at the final hearing, that Marks entered an agreed order authorizing the associate judge to conduct the final hearing, that the parties waived the making of a record and that the associate judge, while neglecting to include an affirmative statement of waiver in his report, proceeded to conduct the final hearing without a court reporter or other means of recordation. The actions of the associate judge, viewed together with the recitation of waiver in the final order and Marks’ failure to show or even allege that he actually objected to the lack of a court reporter, support the conclusion that Marks waived the making of a record in the final hearing before the associate judge. The court holds that Marks waived the making of a record and is not entitled to complain on appeal of the lack of a record. OPINION:Walker, J.; Day, Livingston and Walker, JJ.

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