2031155 | Ala. Civ. App. | Apr 8, 2005
R.C. ("the mother") appeals from a judgment of the Houston Juvenile Court awarding custody of her two children, M.K.C. and K.G.C., to L.C. and K.C. ("the paternal grandparents"). The mother argues that the trial court's limitation of her presentation of evidence denied her due process. We agree and reverse.
The facts are not pertinent to our review of this appeal except insofar as to explain that the parties disputed whether the mother and the paternal grandparents had agreed to the paternal grandparents' caring for the children until the end of the school year when the mother relocated to Florida in February 2004 with J.S., who was her fiancé at the time and who she later married; whether the mother kept in contact with and visited the children during the three-month period during which the children lived with the paternal grandparents before the paternal grandparents filed a dependency petition in late May 2004; whether the paternal grandparents knew how to reach the mother during that three-month period; and whether J.S. used excessive physical punishment on the children, resulting in their being frightened of him.
The trial commenced on August 17, 2004. The record does not clearly indicate at what time the proceedings commenced; however, only a portion of the paternal grandfather's testimony was taken that afternoon. The trial court instructed the parties to return on August 30, 2004, at 10:00 a.m. On August 30, the paternal grandfather resumed testifying. The paternal grandparents called four more witnesses that day. After the paternal grandparents' third witness testified, the trial court recessed the trial for a lunch break; the trial was to resume at 1:30. After the lunch recess, the paternal grandparents called their fourth and final witness and rested. The paternal grandparents' witnesses produced 161 pages of testimony.
After the paternal grandparents rested, the mother proceeded to call the paternal grandmother to testify. The direct examination and the cross-examination of the paternal grandmother comprised 30 pages in the record. Twenty pages into the paternal grandmother's testimony, the trial court announced that it was 2:40 p.m. and that it intended to "close this thing off about 3:15." Counsel for the mother objected *1111 to the trial court's limitation of time after the paternal grandmother left the stand; counsel then called the mother as a witness. Her testimony takes up 50 pages of the record. Once the mother's testimony was completed, counsel indicated that he wished to call J.S. and questioned whether the court would like to hear from the children, including the mother's 12-year-old son from a former marriage. The trial court informed counsel that "I'm out of time" and stated, "No, I have heard enough testimony to make a decision." The testimony of the witnesses presented by the mother makes up only 85 pages of the record.
The mother argues that the trial court's decision to end the trial after she had called only two witnesses denied her due process of law. We must first address whether the mother preserved any claim of error as to the trial court's refusal to hear additional testimony. In a case where a trial court disallows testimony, an offer of proof is typically necessary to preserve the objection to the trial court's ruling. Harbert v.Harbert,
The mother did, however, attach affidavits from her proposed witnesses to a Rule 59, Ala. R. Civ. P., motion for a new trial. Those affidavits indicate the substance of the testimony sought to be elicited from each witness. In general, the affidavit statements by the proposed witnesses contradict the evidence presented by the paternal grandparents concerning J.S.'s relationship with the children; the mother's telephone contact with the paternal grandparents and the children during the three-month period the children lived with the paternal grandparents; and the mother's visitation with the children during that three-month period.
A court considering a custody issue has "wide judicial discretion [because the] proceedings involv[e] the welfare of children." Thorne v. Thorne,
Our supreme court has explained that due process should be observed in custody proceedings, stating:
Danford v. Dupree,"In dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction."
Crews v. Houston County Dep't of Pensions Sec.,"Moreover, procedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence *1112 and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition's claims; and representation by counsel if it is desired."
Rule 403, Ala. R. Evid., clearly states that a trial court may exclude relevant evidence "if its probative value is substantially outweighed . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Although the Alabama Rules of Evidence were not adopted until 1996, trial courts had the same power to exclude evidence on the basis of cumulativeness before the adoption of the Alabama Rules of Evidence. See Rule 403, Advisory Committee's Notes; seealso Stokes v. Bryan,
However, a trial court's discretion to exclude evidence or limit witnesses on the basis that the evidence is cumulative is not boundless. Sweatman v. FDIC,
Sweatman,"[T]he mere fact that the same evidence sought to be elicited from the witness was adduced through other witnesses does not automatically, and of itself, render the trial court's refusal of such evidence harmless error. The trial judge does not have unlimited discretion to refuse admission of cumulative testimony; nor will he be spared reversal on harmless error grounds where he bars the testimony of a witness solely because the fact sought to be proved by the proffered testimony has already been established by the testimony of another witness. The harmless error rule must be tested by the circumstances of each individual case."
This court has also discussed a trial court's discretion to limit the number of witnesses a party may call. In a custody case considering whether the trial court properly limited the father's presentation of witnesses, we explained:
*1113 Case v. Case,"`The trial court may, in its discretion, restrict the number of witnesses to establish a particular fact, at least where the fact is sufficiently established or is not controverted. The discretion must be an actual and judicial discretion, exercised in view of the special character and circumstances of the particular case.'"
The paternal grandparents rely on Case,
In Case, this court affirmed the trial court's use of its discretion in limiting the number of witnesses to testify in a child-custody case. Case,
In Morrison, the trial court had awarded custody of the parties' child to the mother. Morrison,
Although a trial court has discretion to exclude cumulative evidence, we stated clearly in Morrison that not all of the evidence sought to be introduced by the father was cumulative. Therefore, we must question the conclusion reached in Morrison. The conclusion that the failure to admit testimony that contradicts the already presented evidence on material points is harmless error appears untenable in light of a party's due-process right to present evidence and controvert the other party's claims. Because our harmless-error determination inMorrison is not supported by the law as it pertains to a party's rights to due process or the exclusion *1114 of cumulative evidence, we overrule Morrison on that point.
The trial court in the present case conducted a trial over a portion of two days. A vast majority of the time allotted by the trial court for the trial was taken up by the paternal grandparents' attempt to establish the mother's unsuitability for custody. Although, in response to an objection to the limitation of time made by counsel for mother, the trial court stated, "It's . . . on the record I told everybody in plenty of time to call their witnesses," the record reflects that the trial court warned the parties of the arbitrary time limit only 35 minutes before the expiration of that time limit. In addition, the trial court did not equally limit both parties to a certain amount of time for presentation of evidence. The paternal grandparents reaped the benefits of being the petitioners by being allowed to completely present their case by calling every witness they chose to call and establishing every fact they wished to establish. The mother, by virtue of her position as respondent, was severely limited in her ability to present her evidence and her arguments, and she was denied "a reasonable opportunity to controvert the opposition's claims." Crews,
The trial court's decision to limit the mother's presentation of evidence in the present case was not an exercise of "actual and judicial discretion." Case,
REVERSED AND REMANDED.
THOMPSON, PITTMAN, and BRYAN, JJ., concur.
MURDOCK, J., concurs in the result, without writing.