Williams v. Harris

• Decision Date: 26 August 2011
• Docket Number: 2100283.
• Citation: 80 So.3d 273
• Parties: Tony C. WILLIAMS v. Dorothy O. HARRIS.
• Court: Alabama Court of Civil Appeals

80 So.3d 273

Tony C. WILLIAMS

v.Dorothy O. HARRIS.

2100283.

Court of Civil Appeals of Alabama.

Aug. 26, 2011.

Fulton S. Hamilton, Huntsville, for appellant.

Tonya N. Woods and Michael L. Forton, Legal Services Alabama, Inc., Huntsville, for appellee.

On Application for Rehearing

THOMAS, Judge.

The opinion of June 17, 2011, is withdrawn, and the following is substituted therefor.

Tony C. Williams appeals from a protection-from-abuse order entered by the Madison Circuit Court, which resulted from a petition filed by Dorothy O. Harris pursuant to the Protection from Abuse Act, Ala.Code 1975, § 30–5–1 et seq. We affirm.

Facts and Procedural History

Williams and Harris are married. On November 9, 2010, Harris filed a petition for protection from abuse in the trial court. In her petition, Harris stated that on November 8, 2010, Williams had pushed her down on concrete, causing her to sustain bruising and scratches on her arms, legs, and buttock. Further, Harris stated in her petition that Williams had yelled at her, had called her crazy, and had pushed her. On the same day that Harris filed her petition, November 9, 2010, the trial court entered an ex parte order enjoining Williams from threatening to commit, or committing, acts of abuse against Harris, R.L., or T.W. (R.L. and T.W. are hereinafter referred to collectively as “the minor children”); ordering Williams to stay away from the marital residence and the minor children's school; prohibiting Williams from transferring, concealing, encumbering, or otherwise disposing of the parties' property; directing Williams to be removed from the marital residence; awarding temporary custody of the minor children to Harris; and setting a hearing on the petition for November 15, 2010.

The parties had been married for years, but during late 2010 the relationship had begun to deteriorate. Harris has lupus and has suffered from serious health issues. Moreover, Williams and Harris had recently had constant arguments, resulting in the police having been called to the marital residence on numerous occasions. Harris had changed the locks on the marital residence twice in order to keep Williams out of the home. Due to the fact that the police had been called regarding Harris's changing of the locks, Williams and Harris had agreed to a special arrangement to share the marital residence. The arrangement allowed Williams use of the downstairs portion of the marital residence, while reserving the upstairs portion for Harris's use. However, the kitchen and laundry area were located downstairs, which required Harris to enter the downstairs level from time to time. On November 8, 2010, the parties had an altercation, which led to the November 9, 2010, petition for protection from abuse.

The trial court held a hearing on the petition on November 15, 2010. Williams and Harris were the only witnesses to testify at the hearing. They both appeared pro se. Harris testified that, immediately preceding the altercation, Williams was downstairs and was about to take the television, belonging to the parties' son, and the DirectTV brand satellite-television box, which was registered in Harris's name. Harris testified that she told Williams that he could not leave the marital residence with the television and DirectTV box, which, she said, caused Williams to begin yelling, screaming, and cursing. According to Harris, during the verbal outburst, Williams grabbed the television and Harris caught its cord. Harris testified that Williams then pulled the television and pushed Harris onto the concrete floor. During the fall, Harris said, she hit her leg on a table and received scratches and bruises from the table and the concrete floor. According to Harris, she had kept hold of the television cord throughout the fall, and she continued to hold it for the next 45 to 50 minutes before returning upstairs.

Williams gave a different account of the November 8, 2010, altercation. Williams testified that he had been sitting on the couch with Harris's brother watching a football game on television when Harris had sent their son downstairs to remove the DirectTV box, which was connected to the television. Williams stated that he sent the son back upstairs without the DirectTV box and that, about 15 minutes later, Harris came downstairs to take the television and DirectTV box. According to Williams, Harris pulled the television off the shelf and Williams grabbed the television in order to keep it from crashing to the floor. Williams testified that Harris then grabbed the television cord and refused to let go of it. According to Williams, Harris held onto the cord, sitting on the floor at Williams's feet for about two hours. According to Williams, Harris finally released the cord after her hand had started to swell from holding onto it so tightly for so long. Williams testified that after Harris released the cord, Williams set up the television with an antenna. For the remainder of the night, Williams testified, Harris continued to visit the downstairs area, flicking the lights on and off, yelling that Williams was trying to steal her stuff, turning on and off the washing machine and dryer, and moving her quilts and possessions into her bedroom. The next day the police removed Williams from the residence based upon the ex parte protection-from-abuse order. Williams has not entered or visited the marital residence since being removed.

The trial court recognized that there were some discrepancies between Harris's original account of the incident during the ex parte hearing on November 9 and the account she gave at the final hearing on November 15. However, upon questioning by the trial court, Harris testified that Williams had pushed her down onto the concrete floor and then pulled her when he grabbed hold of the television cord, which, she said, she was already holding.

After hearing ore tenus evidence, the trial court entered a final protection-from- abuse order, finding that domestic violence had occurred and enjoining Williams from living at or visiting the marital residence.

Issues

Williams raises two issues in his appeal: (1) whether failing to give an oath to the witnesses deemed their testimony inadmissable and (2) whether the trial court had before it sufficient evidence to support its final order.

Standard of Review

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ' Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

First, Williams argues that the testimony from the final hearing is inadmissable because the trial court failed to give an oath to either Williams or Harris. Accordingly, because the testimony is inadmissable, Williams contends, there is no admissible evidence to support the trial court's protection-from-abuse order. Williams rests his entire argument regarding the inadmissability of the testimony on Rule 603, Ala. R. Evid., and this court's recent decision in Alabama Department of Industrial Relations v. Smith, 62 So.3d 1046, 1049 (Ala.Civ.App.2010). However, this argument is misguided and without merit.

Rule 603 provides:

“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so.”

Rule 603 of the Alabama Rules of Evidence is modeled after the same rule of the Federal Rules of Evidence, and it is well established that “cases construing the federal rules are to be considered authority for this state's courts when construing the Alabama rules.” Shoney's, Inc. v. Barnett, 773 So.2d 1015, 1029 (Ala.Civ.App.1999); see Rule 102, Ala. R. Evid., Advisory Committee's Notes (stating that “cases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence”). However, cases interpreting the federal rules are persuasive rather than mandatory authority. Rule 102, Ala. R. Evid., Advisory Committee's Notes.

The plain language of Rule 603 mandates that an oath be administered before a witness is allowed to testify. However, both federal courts and Alabama courts have held that the failure to give such an oath or affirmation is deemed waived if not objected to in the trial court. Merton v. State, 500 So.2d 1301 (Ala.Crim.App.1986); Saxton v. State, 389 So.2d 541, 543 (Ala.Crim.App.1980) (“If a witness is allowed to give evidence before the jury without first being lawfully sworn, it is the duty of the judge, as soon as it is called to his attention, to immediately administer a proper oath to the witness.”); and United States v. Odom, 736 F.2d 104, 115 (4th Cir.1984). More specifically, the Court of Criminal Appeals has held that, “just as a defendant may waive any impediment to a witness's capacity to testify by failing to object, Conner v. State, 52 Ala.App. 82, 87, 289 So.2d 650 (1973), cert. denied, 292 Ala. 716, 289 So.2d 656 (1974), so may he waive the failure to place a witness under oath by the failure to object.” Merton, 500...