Party Could Not Invite Error By Introducing, Then Challenging, New Evidence After Remand

The Court of Civil Appeals would not reverse a circuit court where, after the case was remanded, the appellant wife introduced new evidence, and later complained about the circuit court’s accepting such evidence. This amounted to late argument and “invited error.” Kaufman v. Kaufman, No. 2060245 (Ala. Civ. App. Aug. 24, 2007). The judgment of the circuit court was accordingly affirmed.

The Court of Civil Appeals had earlier remanded this case to the circuit court to fashion a new division of property and alimony award. The original judge then recused himself and the husband disposed of certain assets. The new judge held a hearing. At this proceeding, the wife presented new proof and told the circuit court that its remaining task was to divide what was left of the property after the husband’s disposition. Neither party complained about the circuit court’s accepting new evidence. The circuit entered a judgment and the wife appealed.

The wife urged the Court of Civil Appeals that, by taking new evidence, and weighing that evidence in its judgment, the circuit court had failed to comply with the appellate court’s mandate. The Court of Civil Appeals disagreed. The usual rule, the court allowed, is indeed that,

The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence. . . .

(Emphasis altered.) In this case, however, the circuit court was not in error. This was so for two reasons.

First, the wife did not object to the new evidence in the circuit court. To the contrary, she had “presented the majority of the evidence at the [post-mandate] hearing.” Her complaint was raised “for the first time on appeal,” and she had not shown the appellate tribunal why she should be allowed to breach the usual rule against such late contentions. In cases where a trial court was reversed for taking further evidence after an appellate mandate,

the issue of compliance with the . . . . mandate was either presented to the trial court . . . or the objecting party filed a petition for a writ of mandamus before additional evidence was taken; the issue was not presented for the first time to the appellate court after the objecting party had fully participated, without objection, in a heading resulting in the receipt of additional evidence.

Here, by contrast, the wife objected to the new evidence only on appeal, after the circuit court had rendered a judgment she did not like.

Second, the wife had invited the error of which she complained. The court called “well settled” the rule that reversal cannot be premised on “error into which [the complaining party] has led or lulled the court.” She had, again, “presented much of [the] evidence” whose receipt she challenged. The Court of Civil Appeals concluded: “Given the unique facts and history of this case, we decline to reverse the trial court’s judgment based on the trial court’s having received and considered additional evidence on remand.”

The judgment of the circuit court was affirmed.