Appellate Law

Failure To Inclue Transcript Or 10(d) Statement Means Trial Court's Findings Conclusively Presumed To Support Judgment

In Beverly v. Beverly, [Ms. 2071085] (Ala. Civ. App. April 3, 2009), the Court of Civil Appeals found that a judgment was supported by the evidence because no transcript or statement of proceedings was in the record.

After receiving ore tenus evidence, the trial court made certain factual findings in its order requiring post-minority child support.  The father appealed; however, no trabscript of the hearing was in the record, and the appellant did not include a statement of the proceedings as allowed by Ala. R. App. P. 10(d).  The Court of Civil Appeals noted the well settled rule that "[a]n appellate court is confined in its review to the appellate record, that record cannot be 'changed, alterered, or varied on appeal by statments in briefs or counsel,' and the court may not 'assume error or presume the existence of facts as to which the record is silent.'"  Slip Op. at p.7 (internal citations omitted).  The court concluded that without the transcript or Rule 10(d) statement, "it must be conclusively presumed that the testimony [was] sufficient to support the judgment."  Slip Op. at 7 (internal citations omitted).

The court ultimately concluded that the findings of the trial court supported its ruling, and affirmed the ruling.  The case was remanded for the limited purpose of calculating a proper attorney's fee. 

Full post as published by Alabama Appellate Watch on April 10, 2009 (boomark / email).