Thomas v. Thomas

495 So. 2d 1135, 1986 Ala. Civ. App. LEXIS 1473

• Court: Court of Civil Appeals of Alabama
• Decided: September 3, 1986
• Docket: Civ. 5356
• Status: Published

Opinion

HOLMES, Judge.

This is an alimony and child support modification case.

The husband petitioned the trial court to reduce the amount of his child support payments. The wife then filed a motion to increase her alimony payments. The trial court held that, pursuant to the original divorce decree, the wife was due an additional $49,000.

The husband, through able counsel, appeals. We affirm.

The husband in effect contends that the trial court’s decision is not supported by the evidence. However, no transcript of the testimony was made in the trial court. Hence, we have no record of the proceedings. Where no record is presented for review, the settled rule is that this court may not reverse. Matter of Coleman, 469 So.2d 638 (Ala.Civ.App.1985). The presumption is that, where the trial court considered oral testimony in reaching its decision, and this testimony is not present in the record, it is conclusively presumed that the testimony is sufficient to support af-firmance. Coleman, 469 So.2d at 639.

The above principle of law is dispositive of all the husband’s contentions because this court cannot in this instance review what occurred below without a transcript of the proceedings. Put another way, as to the husband’s argument that he had no “notice” that certain issues were to be tried, without a transcript, for aught that appears he consented for such issues to be tried. See Rule 15(b), Alabama Rules of Civil Procedure.

In any event, we have no alternative but to affirm.

This case is due to be, and it is, affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.