Ex parte Harris

Decision Date09 November 1984
Citation461 So.2d 1332
PartiesEx parte: Sharon Elizabeth HARRIS. (Re: Sharon Elizabeth HARRIS v. Henry Thomas HARRIS.) 83-1110.
CourtAlabama Supreme Court

Bert P. Noojin and Donald C. Partridge of Noojin & McNair, Mobile, for petitioner.

Al Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for respondent.

FAULKNER, Justice.

This appeal arises from the trial court's denial of the petitioner's request to call her fifteen-year-old son as a witness in the parties' divorce action. After the judge refused to allow the son to testify, the wife made an offer of proof as to the son's expected testimony.

The Court of Civil Appeals, in affirming, found that the trial court's refusal to allow the child to testify was not reversible error because "the son's testimony would be, in view of all circumstances of this matter, merely cumulative." Harris v. Harris, 461 So.2d 1330 (Ala.Civ.App.1984).

We granted certiorari to resolve the issue of whether it was reversible error to prohibit the parties' fifteen-year-old son from testifying in the divorce case when the trial court's decision was based solely upon a blanket prohibition against allowing children to testify against their parents.

Initially, we agree with the Court of Civil Appeals' statement of the law that "a trial court may not prohibit a witness from testifying in a divorce case solely because the proposed witness is a child of the parties even though calling children to testify against one of their parents in a divorce case is distasteful and should be discouraged." Harris v. Harris, supra.

The general rule is that "a party is entitled to have received in evidence and considered by the court, before findings of fact are made, all competent, material, and relevant evidence which tends to prove or disprove any material issue raised by the pleading." Bole v. Bole, 76 Cal.App.2d 344, 172 P.2d 936 (1946).

In Kreutzer v. Kreutzer, 226 Or. 158, 359 P.2d 536 (1961), the Oregon Supreme Court stated:

"Consequently, the right of the defendant to call the children to the stand and to elicit testimony from them material to the issues was precisely the same as it would have been in the case of any other competent witness. This is, of course, a fundamental right. In divorce cases, it seems to be uniformly held that the court has no authority to exclude the testimony of children of the parties of tender years if they are otherwise competent witnesses."

Id., 359 P.2d at 537 (citations omitted). Many other jurisdictions that have considered this issue have followed this general principle. See e.g. Annot. 2 A.L.R.2d 1029-1032 (1948); Crownover v. Crownover, 33 Ill.App.3d 327, 337 N.E.2d 56 (1975); Louks v. Louks, 345 Ill.App. 185, 102 N.E.2d 364 (1951); Chavigny v. Hava, 125 La. 710, 51 So. 696 (1910); Powell v. Powell, 198 Miss. 301, 22 So.2d 160 (1945); Ames v. Ames, 231 Mich. 347, 204 N.W. 117 (1925); Morrone v. Morrone, 44 N.J.Super. 305, 130 A.2d 396 (1957); Schafer v. Schafer, 243 Or. 242, 412 P.2d 793 (1966); Nichols and Fleischman, 67 Or.App. 256, 677 P.2d 731 (1984); Callicott v. Callicott, 364 S.W.2d 455 (Tex.Civ.App.1963); Helper v. Helper, 195 Va. 611, 79 S.E.2d 652 (1954).

In Alabama, there is no statutory prohibition against children testifying in a divorce case so long as they are otherwise competent to testify. Testimony of competent children in a divorce action must be admitted, if relevant, otherwise admissible, and not merely cumulative. In this case, so far as it appears, the fifteen-year-old son would have been able to understand the nature of the oath and would likewise have been competent to testify. Ala.Code 1975, § 12-21-165.

The husband argues, as the Court of Civil Appeals held, that in this instance the exclusion of the son as a witness was not reversible error because his testimony would have been merely cumulative. This determination was based upon the offer of proof propounded by the wife's attorney at the conclusion of all of the evidence.

"The primary reason for the offer of proof is that it better enables the trial judge to consider further the claim for admissibility of such evidence. The secondary reason is that the offer of the proposed answer places the same in the official record for the benefit of the appellate court called upon to decide whether there has been error committed in the ruling."

C. Gamble, McElroy's Alabama Evidence § 425.01(1) (3d ed. 1977).

In this case, however, the trial judge...

To continue reading

Request your trial
12 cases
  • Jethrow v. Jethrow, 89-CA-0935
    • United States
    • Mississippi Supreme Court
    • November 28, 1990
    ... ... G___, 301 S.W.2d 865, 869 (Mo.App.1957); Hepler v. Hepler, 195 Va. 611, 619, 79 S.E.2d 652, 657 (1954); Harris v. Harris, 461 So.2d 1332, 1334 (Ala.1984); Schafer v. Schafer, 243 Or. 242, 243, 412 P.2d 793, 794 (1966); Kreutzer v. Kreutzer, 226 Or. 158, ... ...
  • Wallace v. Wallace
    • United States
    • Alabama Court of Civil Appeals
    • September 24, 2021
    ... ... On the same date the mother filed her objection to the children's relocation, the trial court entered an ex parte order prohibiting the children from leaving the State of Alabama. The father filed a motion seeking approval of the children's relocation pending a ... There is no plan B."THE COURT: All right. You want to invite everybody back in ... "In Ex parte Harris, 461 So. 2d 1332 (Ala. 1984), our supreme court explained that a trial court could not decline to hear the testimony of a child in a divorce case ... ...
  • Hughes v. Hughes
    • United States
    • Wisconsin Court of Appeals
    • November 12, 1998
    ... ... See, e.g., Harris ... ...
  • Reeves v. Fancher
    • United States
    • Alabama Court of Civil Appeals
    • May 20, 2016
    ... ... matter of law" or to dismiss the action, arguing that the evidence presented by the father did not meet the evidentiary burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), necessary to warrant a modification of the October 6, 2014, judgment that had awarded the mother primary physical ... R. Civ. P.; Lawson v. Harris Culinary Enters., LLC, 83 So.3d 483, 495 n. 7 (Ala.2011).2 See also City of Prattville v. Post, 831 So.2d 622, 627 (Ala.Civ.App.2002) ( "A motion for ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT