Offer of Proof Required to Preserve Review of Ruling Sustaining Evidentiary Objection

Hennis v. Hennis, No 2050713, released by the Alabama Court of Civil Appeals on July 20, shows the consequences of failing to make an offer of proof when the trial court sustains an evidentiary objection.

At trial, the husband in a divorce and custody case sought to introduce evidence from his licensed professional counselor.  After the court sustained the wife’s objection to the testimony, the husband’s attorney stated that he "took exception to the ruling."  He did not, however, make an offer of proof explaining the relevancy of the counselor’s testimony.  The Alabama Court of Civil Appeals held that the husband’s objection was not preserved and the trial court’s ruling would not be reviewed on appeal. 

The court noted that as a general rule, in order to preserve review of a trial court’s ruling sustaining an objection, the party offering the evidence must make an offer of proof indicating what the evidence would have shown.  Although no offer of proof need be made  where the question disallowed indicates on its face the expected answer, there was no indication in the record that the trial court was aware of what the testimony would show.  Although the husband explained the relevancy of the testimony in his post-trial motions, the court held that his failure to make an offer of proof of the expected testimony at the time of the trial failed to preserve the issue for appellate review.