dissenting.
I am unable to join the majority’s opinion or concur in its judgment. I therefore dissent.
Failure to File Findings and Conclusions
The majority holds Rule 306c, Tex.R. Civ. P., does not apply to a prematurely *306filed reminder of past due findings of fact and conclusions of law. In doing so, the majority relies upon Echols v. Echols, 900 S.W.2d 160 (Tex.App.-Beaumont 1995, writ denied).1 However, the Echols Court failed to consider what was then Rule 58(a) of the Texas Rules of Appellate Procedure. See Tex.R.App. P. 58(a) (repealed). Under Rule 58(a), an appellate court was not required to consider a premature instrument ineffective. See id. This rule continues today in Rule 27.2, Tex.R.App. P., which permits an appellate court to treat any premature action “as if [it] had been taken after the order was signed.” Nor does the majority consider the Supreme Court of Texas’s repeated admonition “ ‘the decisions of the courts of appeals [should] turn on substance rather than procedural technicality.’ ” City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curiam) (quoting Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) (per curiam)).
I would treat the Estate’s premature reminder as though it were timely filed under Rule 27.2, Tex.R.App. P., and, for the courts’ benefit as well as the parties’, I would abate this appeal to afford the trial court an opportunity to file its findings and conclusions.
Child Support
Relying upon Hutchings v. Bates, 406 S.W.2d 419 (Tex.1966), and section 154.006 of the Texas Family Code, the majority holds the child support order is binding on the Estate because it required Gorski to pay child support for a definite period of time and is silent regarding whether Gor-ski and Welch intended child support to continue after his death. I disagree with the majority’s analysis and its conclusion.
In its 1966 opinion in Hutchings, the Texas Supreme Court held “where the contract and judgment provide for periodic support payments to be made until the occurrence of a specified event the obli-gor’s estate is responsible for installments accruing after his death unless it fairly appears from other stipulations or the surrounding circumstances that it was intended for the obligation to terminate upon death.” Hutchings, 406 S.W.2d at 421. In other words, child support continues after the obligor’s death unless “other stipulations or the surrounding circumstances” indicate the parties intended that it terminate. See id.
In 1973, however, the Texas Legislature first enacted what is now section 154.006 of the Texas Family Code. Act of May 15, 1973, 63rd Leg., R.S., ch. 543, § 1, sec. 14.05(d), 1973 Tex. Gen. Laws 1411, 1424. Then and now, this section provides that child support terminates upon the “death of ... a parent ordered to pay child support” “[u]nless otherwise agreed in writing or expressly provided in the order.” Tex. FaM.Code Ann. § 154.006 (Vernon 1996). In my view, this provision legislatively overruled Hutchings in two respects. First, it reversed the Hutchings presumption. Under Hutchings, if the agreement is silent, child support continues unless stipulations and circumstances indicate it does not, while under section 154.006, child support terminates unless the parties indicate it does not. Second, under Hutch-ings, the parties’ intent is subject to proof by evidence extrinsic to the agreement, while under section 154.006, the parties’ intent is to be determined solely by reference to the terms of the parties’ written agreement and the provisions of the order.
Because Gorski and Welch did not agree in writing that child support would continue after Gorski’s death, and this issue is not resolved in the child support order, I would hold Gorski’s child support obligation terminated at his death pursuant to section 154.006 of the Texas Family Code.
*307Social Security Survivor Benefits
The majority opinion “would hold that the Estate was entitled to a credit for the social security death benefits” except the Estate’s attorney waived the complaint during oral argument. I agree the Estate is entitled to a credit and would so hold. But I cannot agree the Estate’s attorney unequivocally waived this complaint during oral argument. The purported waiver is not in writing; it is not recorded on video or audiotape; and it is not otherwise reflected in this court’s file. Nor do I construe the Estate’s attorney’s words at oral argument to unequivocally waive the Estate’s complaint as a matter of fact. And I would not do so as a matter of policy, at least not without an express, unequivocal, and recorded waiver. To do otherwise places too great a burden on appellate advocates and injects too much uncertainty into the appellate process.
Pretermitted Child
The record establishes Gorski “otherwise provided for” Marissa through social security survivor benefits, and it strongly suggests he intentionally omitted her from his will. It is on this last point, however, that I would appreciate having the trial court’s findings of fact and conclusions of law before making a final decision.
Conclusion
For the reasons stated above, I would hold the Estate is not bound by the child support decree and is entitled to a credit for social security survivor benefits. I would not decide whether Marissa is entitled to a share of Gorski’s estate without the trial court’s findings of fact and conclusions of law. I therefore dissent from the majority’s judgment and do not join its opinion.