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709 So. 2d 1257

Gibert v. Gibert

Court of Civil Appeals of Alabama

Decided January 23, 1998

Court of Civil Appeals of Alabama · decided 1998-01-23

Cited by 9 later decisions — most recently February 2018

9 state decisions

Key passage — most relied on by later courts

“"Without a transcript of the hearing on the wife's motion to modify the divorce judgment, there is no way for this court to determine whether the wife's arguments have probable merit. We cannot put the trial court in error without knowing what issues were litigated and resolved at the hearing and what the factual basis for the court's judgment was. "As the appellant, the wife has the duty of seeing that any error asserted on appeal is affirmatively demonstrated by the record. See Perkins v. Perkins , 465 So.2d 414 (Ala. Civ. App. 1984). If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams , 406 So.2d 988 (Ala. Civ. App. 1981). Evidence presented to the trial court but not preserved in the record on appeal is conclusively presumed to support the trial court's judgment. English v. English , 352 So.2d 454 (Ala. Civ. App. 1977). See generally Greer v. Greer , 624 So.2d 1076 (Ala. Civ. App. 1993). I would affirm the trial court's denial, without a hearing, of the wife's post-judgment motion."”

quoted by 1 later decision, including 241 So. 3d 33 - Robinson v. Arnold

Relies on 406 So. 2d 988 - Liberty Loan Corp. of Gadsden v. Williams · 624 So. 2d 1076 - Greer v. Greer · 352 So. 2d 454 - English v. English

Good law ✅— No negative treatment on recordhow we know

Decided 1998-01-23

View the full empirical analysis of this case →

CRAWLEY, Judge,

¶1dissenting.

¶2I dissent. Without a transcript of the hearing on the wife’s motion to modify the divorce judgment, there is no way for this court to determine whether the wife’s arguments have probable merit. We cannot put the trial court in error without knowing what issues were litigated and resolved at the hearing and what the factual basis for the court’s judgment was.

¶3As the appellant, the wife has the duty of seeing that any error asserted on appeal is affirmatively demonstrated by the record. See Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981). Evidence presented to the trial court but not preserved in the record on appeal is conclusively presumed to support the trial court’s judgment. English v. English, 352 So.2d 454 (Ala.Civ.App.1977). See generally Greer v. Greer, 624 So.2d 1076 (Ala.Civ.App.1993). I would affirm the trial court’s denial, without a hearing, of the wife’s post-judgment motion.

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