Hard to Appeal When There’s Nothing in the Record

All the eloquent arguments in the world in an appeal brief will come to nothing if the record from the trial doesn’t show what happened there. We have a good illustration of this in Cameron v Cameron, Case No¬†2150546 (Ala. Civ. App. November 10, 2016).

The husband and the wife were married only seven years, yet the trial court awarded the wife the husband’s house and ordered the husband to pay the wife significant alimony in gross and periodic alimony. The trial court stated in the record that “As a witness in Court, the Husband was contradictory and evasive and generally not believable. At home he has led his wife and family along as if there would be a reconciliation between them. At Court, and to his friend, he indicates no interest in maintaining the relationship. He has tried to enjoy the benefits his wife can provide at home or in their camper, but he is no longer willing to be bound by any commitment to her.”

One can argue that the property division seems inequitable, but the appeals court really had no way of reviewing it. “[B]ecause the parties failed to introduce evidence of the value of most of the assets, including the marital residence, specifically included in the judgment dividing the marital property or the items of personal property that were awarded to the parties, we are unable to conduct a meaningful review of whether the property division is equitable. Accordingly, we cannot say that the trial court’s judgment dividing the marital property is plainly and palpably wrong.”

The husband also argued that he was unable to pay the alimony the trial court had ordered, but even on appeal he failed to argue that the wife failed to demonstrate a need for alimony. So the appeals court deemed his argument waived. It didn’t help that, according to the appeals court, the husband’s own summary of his expenses provided evidence the husband could indeed afford to make the payments ordered by the trial court.

Finally, the husband argued that the trial judge should have recused himself after saying in chambers to the husband’s attorney, “You might want to speak with your client, and if he still wants a divorce I’m going to hit him hard financially.”

However, the comment doesn’t appear on the record because there was no affidavit about it, and the husband’s attorney made no effort to supplement the record pursuant to Rule 10(f) of the Alabama Rules of Appellate Procedure. “Thus, the husband’s assertions regarding the statement allegedly made by the trial judge cannot be the basis for reversal of the trial court’s denial of the motion to recuse.”