The parties in this case were divorced by the Circuit Court of Jefferson County on October 4, 1988. Thе final judgment of divorce divided the personal property of the parties, reserved the issue of periodic alimony, awarded a fee to the wife’s attorney, and ordered that the marital residence be sold and that the net proceeds be divided equally between the parties. The wife filed a posttrial motion, which was denied, and then perfected a timely appeal to this court. Her principal contention on appeal is that the trial court’s division of property was inequitable and, therefore, an abuse of discretion.
The principle that property division is discretionary with the trial court is well established. Montgomery v. Montgomery,
Unfortunately, the testimony in this case is not before us. No court reporter was present at the trial; consequently, there is no transcript. Even so, the wife could have prepared a statement of the evidence or proceedings in accordance with the procedure outlined in Rule 10(d), Alabama Rules of Appellate Procedure, but she did not do so. The rеcord on appeal contains only the clerk’s record.
The wife contends thаt, even though there is no transcript or Rule 10(d) statement, the clerk’s record contains sufficient evidence to support our reversal of the trial court. She bases this contention on a pleading she filed entitled “Counter Complaint,” which was never answered by the husband. The wife argues that unan
Nevertheless, the wife argues on appeal that the trial court’s decree, which is based, at least in part, on еvidence presented ore tenus, is plainly and palpably wrong; therefore, appellate reversal on such ground must be based on the conclusion that the evidence virtually compels a result inconsistent with the trial court’s decision. Adams v. Adams,
“Undеr ARAP it is not necessary to submit the entire transcript; however, there is a minimum below which an appellant who bases his argument on the weight and sufficiency of the evidence may not fаll and still present a reviewable issue. The complete absence of any transсript or 10(d) statement of oral testimony falls below such a minimum.”
In view of the foregoing, we cannot say that the trial court’s division of property in this case is inequitable so as to cоnstitute a palpable abuse of discretion. The judgment of the trial court is due to be аffirmed.
Appellant’s request for attorney’s fees on appeal is denied.
Appеllee’s request for sanctions pursuant to Rule 38, A.R.A.P., is also denied.
AFFIRMED.
(not sitting):
This case having already bеen decided by a majority of the court, due to my personal friendship with both parties in this matter, I choose not to sit.
