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Pickett v. Pickett4/20/2001
Andrea Pickett (the "mother") and Anthony M. Pickett (the "father") were divorced in 1993. The mother was awarded custody of the parties' minor child. In October 1999, the father filed a petition to modify the custody order. After receiving ore tenus evidence, the trial court entered a judgment that awarded the father custody of the child, subject to the child's finishing the school year at the school he had attended while residing with the mother. The mother appeals.
There is no transcript of the March 21, 2000, hearing on the father's petition to modify custody. However, the trial court approved a statement of the evidence, pursuant to Rule 10(d), Ala. R. App. P. The mother argues that the statement of evidence is incomplete and that using it as a substitute for a transcript in this case violates her "due process rights guaranteed by the state and federal constitutions." The mother cites no authority to support her argument; thus, she has not complied with Rule 28, Ala. R. App. P. However, out of an abundance of caution, we will consider her request that we remand the case for another trial so that a complete transcript may be developed.
The hearing was taped-recorded, but the recording was inaudible. The mother prepared a proposed statement of the evidence, pursuant to Rule 10(d), Ala. R. App. P. The father objected to the mother's statement of the evidence and filed amendments to that statement. The mother then filed a document entitled a "Final Rule 10(d) Statement of the Evidence," which contained her objections to the father's proposed amendments to her Rule 10(d) statement of the evidence. The trial court issued an approved statement of the evidence that adopted the mother's statement of the evidence as amended by most of the father's objections and amendments. See Rule 10(d), Ala. R. App. P.; Bobo v. Bobo, 585 So. 2d 54 (Ala. Civ. App. 1991).
The mother disagrees with the trial court's approved statement of the evidence. "On review, [this court] will accept the approved statement of the evidence as true." Mobley v. Turner, 346 So. 2d 427, 428 (Ala. 1977). No Alabama caselaw addresses whether a party to an appeal may challenge a trial court's approved statement of the evidence. Alabama's Rule 10(d), Ala. R. App. P., is equivalent to Rule 10(c), Fed. R. App. P. See Mobley v. Turner, 346 So. 2d at 428. There is authority in the federal courts for a challenge of the approved statement of the evidence and for remanding the case for a new trial. See Bergerco, U.S.A. v. Shipping Corp. of India , Ltd., 896 F.2d 1210 (9th Cir. 1990).
The federal courts allow a challenge to a statement of the evidence. Bergerco, 896 F.2d at 1214-15. If a federal court is faced with such a challenge, it determines "whether a resolution of the disputed factual issues is essential to allow ... meaningful appellate review of the [trial] court's decision." Bergerco, 896 F.2d at 1215. The Bergerco court, after discussing other federal cases involving requests for a new trial based on the lack of an original transcript, explained that an appellant seeking a new trial so that a complete record can be developed must: "1) make a specific allegation of error; 2) show that the defect in the record materially affects the ability of the appeals court to review the alleged error; and 3) show that a Rule 10(c) [Fed. R. App. P.] proceeding has failed or would fail to produce an adequate substitute for the evidence." Bergerco, 896 F.2d at 1217. After setting forth these factors, the Bergerco court stated, "We believe these factors would be presented only in rare circumstances." Id.
In this case, the mother's complaint that the statement of the evidence is incomplete and inadequate does not
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