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."

In Cockerell, the husband appealed the trial court’s judgment in a divorce case.   No court reporter was present at the trial, although the parties were informed of their right to have a court reporter present.   After rejecting the husband’s argument that the judgment was inconsistent and contradictory, the Court of Civil Appeals addressed the husband’s argument that, based on the evidence, the division of assets was inequitable.

The Court of Civil Appeals noted that the record on appeal did not contain a transcript of the ore tenus proceeding.  Further, the husband did not place in the record a statement of the evidence in accordance with Ala. R. App. P. 10(d).  The Court of Civil Appeals stated the well-settled rule that the court "cannot assume error or presume the existence of facts as to which the record is silent." Slip Op. p. 9.  Because there was no transcript or Rule 10(d) statement of the evidence, the court held that "it must be conclusively presumed that the testimony [was] sufficient to support the judgment." Slip Op. p. 10.  Therefore, the judgment was affirmed without the court having to address the merits.