Jenkins v. Jenkins

• Decision Date: 16 November 1977
• Parties: Henrietta JENKINS v. Tom JENKINS. Civ. 1225.
• Court: Alabama Court of Civil Appeals

Page 1

352 So.2d 1

Henrietta JENKINS v. Tom JENKINS.

Civ. 1225.

Court of Civil Appeals of Alabama.

Nov. 16, 1977.

George E. Trawick, Ariton, for appellant.

Charles L. Woods of Woods & Corbitt, Ozark, for appellee.

HOLMES, Judge.

This is a divorce case.

The dispositive issue on appeal is whether the trial court erred in denying the wife's motion for a continuance. The basis of the continuance motion was that no court reporter was present to transcribe the testimony. We find the trial court did not err and affirm.

The controlling statute, as conceded by all parties, is Act No. 25, Acts of Alabama, Second Special Session 1971, and in pertinent part is as follows:

"The judge shall secure the services of a competent reporter to attend the sessions of the court and report all equity cases tried when request in writing therefor is made by any party to a suit. . . . "

The following are facts, as revealed by the record, which we deem appropriate for an understanding of the instant appeal.

The husband, in July of 1976, filed for divorce. The wife filed appropriate responsive pleadings. The matter was set for hearing in September of 1976. In October, the wife's first attorney withdrew from the case. At this juncture, no request in writing had been made for a court reporter to be present. In October, another attorney was retained to represent the wife. Again, motions were filed on behalf of the wife by this attorney and a hearing was set for November, 1976. This hearing was apparently continued and the matter was reset for December, 1976, at which time a hearing was held and testimony heard by the trial court. No request in writing for a court reporter was made by either party. In fact, the only reference to a court reporter is found in the final decree. In the final decree of the trial court, we find the following: "A request was made for a continuance for lack of a reporter and said request was denied."

Again, we note that we have perused the entire record and nowhere do we find a written request for a court reporter. The trial court further in its decree made disposition of the parties' assets and ordered attorneys' fees be paid by the respective parties.

Able counsel ¹ for the wife contends that the pertinent statute requires that a court reporter be physically present and then a request in writing can be made. He goes further and argues that since none was present, such a request in this instance would have been a useless act.

We do not agree with able counsel's interpretation of the statute in question.

We interpret that statute to mean that if a request is made in writing for the services of a court reporter, then such court reporter shall be made available as prescribed by the statute. We believe that the statute in question is clear and that when language of a statute is plain it should be considered to mean exactly what it says. Ala. Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970); 18 Ala.Digest Statutes k188.

As noted above, clearly in this instance, no request in writing was made by any of the wife's attorneys. Since there is no transcription of what transpired below, we can only assume, as indicated in brief, that on the day of the hearing the wife made an oral request for a reporter, followed by a motion for a continuance since no such reporter...