Gaps in Divorce Record Force Reversal

The trial court incorporated a “partial agreement” between the parties into its final divorce judgment. The record on appeal contained no written evidence of that agreement, however, and the trial court had not received evidence on any contested issue. The agreement thus was not valid. And, without evidence, the trial court had no discretion to adjudicate other issues. The Court of Civil Appeals reversed the judgment and ordered the trial court to hold an evidentiary hearing. Willis v. Willis, No. 2080876 (Ala. Civ. App. Feb. 26, 2010)

Continue reading

When Oral Testimony Is Considered By Trial Court But Not In Record on Appeal, Evidence Will Be Presumed to Be Sufficient to Support Judgment

In Cockerell v. Cockerell, [Ms. 2070793] (Ala. Civ. App. July 24, 2009), the Court of Civil Appeals affirmed a divorce judgment in part because the husband failed to put a record of the oral testimony in the record.  Because the appellate courts will not presume error, the Court of Civil Appeals found that it was "conclusively presumed that the testimony [was] sufficient to support the error."

Continue reading

Narrative Summary of Undisputed Facts Must Be Before Trial Court When It Rules on Motion For Summary Judgment

An interesting discussion of the requirement that a narrative summary of unsdisputed facts, as required by Ala. R. Civ. P. 56, must be before the trial court when it rules on a summary judgment motion is found in Kelmore, LLC v. Alabama Dynamics, Inc., [Ms. 1050479] (Ala. April 3, 2009).

Continue reading

Failure to Attach Relevant Documents to Mandums Petition Leads to Denial

In Ex parte Allianz Ins. Co. of North America, [Ms. 1070114] (Ala. Dec. 5, 2008), the Court demonstrated the importance of attaching all necessary documents to a petition for writ of mandamus.  The petitioners sought a writ of mandmus to have an order compelling discovery reversed.  However, the petitioners did not attach to th epetition a copy of its response to the motion to compel or a copy of its motion for protective order.  Because the petitioners did not show that they made the arguments to the trial court, and because they failed to present all necessary parts of the record to the Court, the petition was denied.

In absence of evidence in record, trial court’s judgment is presumed to be supported by the evidence

In Prescott v. Prescott, [Ms. 2070638] (Ala. Civ. App. Oct. 10, 2008), the Court of Civil Appeals affirmed the trial court’s judgment on a child custody modification issue.  The mother appeal, but, the record did not contain a transcript, a statement of the evidence under Ala. R. App. P. 10(d), or an agreed statement of the case under Ala. R. App. P. 10(e).  "In the absence of a transcript of the evidence or an authorized substitute therfor, it is conclusively presumed that the trial court’s judgment is supported by the evidence."  Slip Op. pp. 4-5.  Thus, the judgment was presumed to be supported by the evidence and was affirmed.

Document Not in Appellate Record Could Not Underpin Error

The Court of Civil Appeals refused to find that a trial court had erred by supposedly failing to account for a document that was not included in the record on appeal. Beatty v. Beatty, No. 2060993 (Ala. Civ. App. Apr. 11, 2008). The trial court’s judgment, finding that a husband owed past-due alimony, was therefore affirmed.

Continue reading

Crutcher Opinion Reviews Plethora of Procedural Rules

In Crutcher v. Williams, No. 1050893 (Ala. March 14, 2008), the Alabama Supreme Court remanded a case because the judgment from which the appeal was taken was not final. The Court asked the trial court, within fourteen days, either to certify the primary judgment as final under Rule 54(b) or to enter a judgment on the cross-claim in the case. In reaching its decision, the Court reviewed many tenets of procedural law.

Continue reading