Harris v. Harris
| Decision Date | 23 May 1984 |
| Citation | 461 So.2d 1330 |
| Parties | Sharon Elizabeth HARRIS v. Henry Thomas HARRIS. Civ. 4153. |
| Court | Alabama Court of Civil Appeals |
Bert P. Noojin and Donald C. Partridge of Noojin & McNair, Mobile, for appellant.
Al Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellee.
This is a divorce case.
The husband contended through his pleadings and evidence that an equitable mortgage or indebtedness exists as to the homeplace of the parties which resulted from a loan made several years earlier by the husband's father in order to enable the parties to initially purchase that property. On the date of the ore tenus trial, the wife filed a motion for a summary judgment upon that indebtedness issue. It was taken under advisement by the trial court but was overruled at the conclusion of the trial. In the final divorce judgment, the husband was ordered to pay all joint debts and bills of the parties which were incurred during their marriage, expressly including the debt, "if any," to the husband's father.
The wife argues through able counsel that the trial court erred in overruling her motion for a summary judgment. If error was so committed, it was not prejudicial to the wife since the husband was ordered by the final judgment to pay the debt, if any, to his father. Any error in overruling the wife's motion was corrected by the final judgment. Accordingly, the error complained of did not injuriously affect any substantial right of the wife. Rule 45, A.R.A.P.; rule 61, Alabama Rules of Civil Procedure.
However, the wife further contends that the trial court indirectly imposed a part of that debt upon her when she was awarded forty-seven percent and the husband fifty-three percent of the net sale proceeds from the land when it sold. The judgment states no reason for that unequal decision. From a study of all of the evidence, it appears that the cause of the disparity could have been an attempt by the court to balance the equities in dividing the property by granting to the husband six percent more of the sale proceeds because of his contribution to the marriage of property which he owned at the time of the marriage.
In any event, a division of property in a divorce case is not required to be equal but must be equitable. That is a matter which falls within the judicial discretion of the trial court whose property awards will not be reversed upon an appeal except for a palpable abuse of discretion. The ore tenus rule applies also. Kaiser v. Kaiser, 434 So.2d 264 (Ala.Civ.App.1983); Spradlin v. Spradlin, 426 So.2d 462 (Ala.Civ.App.1983). The evidence in this cause does not disclose that the trial court was clearly wrong. The property division was equitable and was supported by the evidence.
After the conclusion of the evidence in chief of both parties, the trial court denied to the wife the right to use their fifteen year old son as a witness, whereupon the mother made a showing that the son would testify that on several separate occasions he had observed the husband beating and abusing the wife, that the son purchased one of the horses in question with his own money, and that the son had had no relationship with his father for the last several years.
The wife correctly states that a trial court may not prohibit a witness from...
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Stewart v. Superior Court In and For County of Maricopa
...following cases demonstrate, the weight of authority is against recognition of a parent-child testimonial privilege. Harris v. Harris, 461 So.2d 1330, 1332 (Ala.1984); In re Terry W., 59 Cal.App.3d 745, 749, 130 Cal.Rptr. 913, 915 (1976); Hope v. State, 449 So.2d 1319, 1320 (Fla.Dist.Ct.App......
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Wallace v. Wallace
...children to testify against one of their parents in a divorce case is distasteful and should be discouraged.’ Harris v. Harris, [461 So. 2d 1330 (Ala. Civ. App. 1984) ]."The general rule is that ‘a party is entitled to have received in evidence and considered by the court, before findings o......
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Ex parte Harris
...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......
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Blume v. Durrett
...can be no blanket exclusion of a child's testimony because of the child's age. Ex parte Harris, 461 So.2d 1332 (Ala.1984), rev'g Harris v. Harris, 461 So.2d 1330, on remand, 461 So.2d 1335 (Ala.Civ.App.1984). Indeed, Ex parte Harris dictates the general law on this issue: "a trial court may......