White v. White

124 So. 3d 734, 2013 WL 1490607, 2013 Ala. Civ. App. LEXIS 84
CourtCourt of Civil Appeals of Alabama
DecidedApril 12, 2013
Docket2111060
StatusPublished

This text of 124 So. 3d 734 (White v. White) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. White, 124 So. 3d 734, 2013 WL 1490607, 2013 Ala. Civ. App. LEXIS 84 (Ala. Ct. App. 2013).

Opinion

THOMAS, Judge.

Donald White (“the husband”) and Phyllis White (“the wife”) were married on August 4, 2007. On December 5, 2011, the wife filed a complaint in the Jefferson Circuit Court seeking a divorce, a division of the marital assets and debts, and an award of attorney fees. There are no children of the marriage.

On December 12, 2011, the wife filed a petition in the circuit court seeking a protection-from-abuse (“PFA”) order pursuant to Ala.Code 1975, § 30-5-1 et seq., alleging that the husband had restrained her, had injured her, and had made her afraid that he would injure her again. She requested an order requiring the husband to move out of the marital residence and to stay away from the marital residence, prohibiting the husband from disposing of her personal property, and awarding attorney fees.

On December 15, 2011, the circuit court issued an ex parte PFA order forbidding the husband from having any contact with the wife and from disposing of the wife’s personal property. It ordered the husband to move out of the marital residence and to stay away from the marital residence and the wife’s place of employment. In an amended order, the circuit court required the husband to surrender his firearm to the police. A hearing on the wife’s PFA petition was scheduled for January 3, 2012, after which the circuit court entered a temporary order on January 6, 2012, extending the PFA order pending the entry of further orders of the circuit court.

Apparently, another hearing on the PFA petition was held on January 25, 2012, because, on February 7, 2012, the circuit court entered a second temporary order, in which it ordered that the PFA order remained in effect pending the entry of further orders of the circuit court. The February 7, 2012, PFA order included the circuit court’s finding that “[the husband] became disruptive in the Courtroom, and acted in a threatening manner toward [the wife] and the Court’s bailiff.”

After one continuance, the trial in this matter began on May 30, 2012; however, the circuit court’s order, entered that same day, reveals that the husband had informed the court that he became ill after the trial began and that an ambulance was called to transport the husband to a hospital. The circuit court’s order required that if the husband was released from the hospital that same day, he was to immediately return to the circuit court and, if not, that the trial would resume on June 6, 2012.

The trial resumed on June 6, 2012, at which time the husband appeared pro se. There is no transcript of the trial; however, on June 15, 2012, the circuit court entered a judgment divorcing the parties, ordering that the PFA order remain in effect, and dividing the marital assets and debts.1 That same day, the circuit court [736]*736entered a contempt judgment against the husband, which provides, in pertinent part:

“1. That the [husband] is held in direct contempt of Court for his behavior during two trial settings. Testimony in Open Court was that the [husband] had every intention of coming into Court to defame this Judge, demand the Court’s recusal, and delay these proceedings for as long as possible.
“2. The [husband] refused to sit down in Open Court, and refused to participate in the trial of this matter.
“3. During the previous trial setting on January 25, 2012, the [husband] left the witness stand and stomped out of the Court, refusing to answer questions.
“4. The [husband] was disrespectful, belligerent, and defiant in Open Court on both occasions.
“5. The [husband] is sentenced to imprisonment in the Jefferson County Jail for 10 days which represents five days for the two occasions in which he exhibited a total lack of respect for this Court and the proceedings.
“6. The Sheriff of Jefferson County is directed to serve a copy of this Order upon the [husband,] and take him into custody forthwith.
“7 The Sheriff of Jefferson County is directed to release the [husband] when he has served his ten-day sentence.
“8. The Sheriff of Jefferson County is further ordered to submit a cost bill to the Clerk of this Court for the [husband]’s incarceration, and [husband] shall be responsible for payment of all such costs.”

(Emphasis added.)

The husband did not file a postjudgment motion. He timely appealed to this court on July 26, 2012, seeking this court’s review of three issues: whether the circuit court erred by failing to grant his request for a continuance at the start of the trial on June 6, 2012, whether the circuit court erred by resuming the June 6, 2012 trial, in the husband’s absence after the circuit court held him in direct contempt and placed him in the bailiffs custody, and whether the circuit court erred by holding the husband in direct contempt for his behavior in court on January 25, 2012.

The majority of the argument and recitation of the “facts” in the husband’s brief to this court is founded upon assertions included in his affidavit, which is appended to his brief; however, we are precluded from considering the husband’s affidavit that is not part of the record. See Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (explaining that a record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief). Furthermore, as the wife points out, the record does not contain a transcript of the ore tenus evidence presented at the June 6, 2012, trial or a statement of the evidence presented at trial, pursuant to Rule 10(d), Ala. R.App. P.2

[737]*737“ ‘An appellate court is confined in its review to the appellate record, that record cannot be “changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not “assume error or presume the existence of facts as to which the record is silent.” Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006). Accordingly, when, as in this case, “oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.” Rudolph v. Rudolph, 586 So.2d 929, 980 (Ala.Civ.App.1991).’
“Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009).”

McMichael v. McMichael, 71 So.3d 678, 688 (Ala.Civ.App.2011). Thus, there is no evidence in the record indicating that the husband requested a continuance at the beginning of the June 6, 2012, trial or, if he did, the reason for such a request. Furthermore, there is no evidence in the record indicating that the circuit court placed the husband in the custody of a bailiff and completed the June 6, 2012, trial in the husband’s absence.

“‘“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record.

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Related

Liberty Loan Corp. of Gadsden v. Williams
406 So. 2d 988 (Court of Civil Appeals of Alabama, 1981)
Greer v. Greer
624 So. 2d 1076 (Court of Civil Appeals of Alabama, 1993)
Goree v. Shirley
765 So. 2d 661 (Court of Civil Appeals of Alabama, 2000)
Beverly v. Beverly
28 So. 3d 1 (Court of Civil Appeals of Alabama, 2009)
Perkins v. Perkins
465 So. 2d 414 (Court of Civil Appeals of Alabama, 1984)
Quick v. Burton
960 So. 2d 678 (Court of Civil Appeals of Alabama, 2006)
Bechtel v. Crown Cent. Petroleum Corp.
451 So. 2d 793 (Supreme Court of Alabama, 1984)
Rudolph v. Rudolph
586 So. 2d 929 (Court of Civil Appeals of Alabama, 1991)
McMichael v. McMichael
71 So. 3d 678 (Court of Civil Appeals of Alabama, 2011)
McCaw v. Shoemaker
101 So. 3d 787 (Court of Civil Appeals of Alabama, 2012)
Chrysanthenia H. Dudley v. Sheldon Dudley.
85 So. 3d 1043 (Court of Civil Appeals of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
124 So. 3d 734, 2013 WL 1490607, 2013 Ala. Civ. App. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-white-alacivapp-2013.