Roberts v. Roberts

This is a divorce case. The contested trial was conducted ore tenus before the circuit court. As his only issue on appeal, the husband contends that the trial court abused its discretion in dividing the real and personal property of the parties. No court reporter's transcript is contained in the record. Neither is there embodied therein a statement of the evidence or an agreed statement of the case as authorized by A.R.A.P. rules 10 (d) and (e). Therefore, nothing is included in the record furnished to us as to any of the oral evidence which was presented by the witnesses before the trial court. However, the husband's brief contains a purported summary of the testimony, but it cannot be here considered since an appellate court is not authorized to regard or recognize factual matters outside of the record itself. The record cannot be factually enlarged, changed, altered or varied upon appeal by statements appearing in briefs of counsel, but the record on appeal must disclose the facts upon which the alleged error is founded before such an error may be considered. Green v. Standard Fire InsuranceCompany of Alabama, 398 So.2d 671 (Ala. 1981); Daniels v. BonaFada Federated Club 1979-80 Members, 403 So.2d 255 (Ala.Civ.App. 1981). Accordingly, none of the oral evidence which was put forth at the trial is before this court and we have no testimony which we may lawfully review in order to determine the factual questions of whether the trial court was palpably wrong in its division of the property of the parties. Under these circumstances, we are required to conclusively presume that the trial testimony supported the findings and the judgment of the trial court. Blase v. Blase, 419 So.2d 599 (Ala.Civ.App. 1982); James v. Mobile Travelodge, 417 So.2d 205 (Ala.Civ.App. 1982); Floyd v. State Department of IndustrialRelations, 400 So.2d 409 (Ala.Civ.App. 1981). The judgment of the trial court is affirmed. The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10 (e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court. AFFIRMED. All the Judges concur. *Page 646