Ex parte Harris
Decision Date | 09 November 1984 |
Citation | 461 So.2d 1332 |
Parties | Ex parte: Sharon Elizabeth HARRIS. (Re: Sharon Elizabeth HARRIS v. Henry Thomas HARRIS.) 83-1110. |
Court | Alabama 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.
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:
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.
C. Gamble, McElroy's Alabama Evidence § 425.01(1) (3d ed. 1977).
In this case, however, the trial judge...
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