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Wampol v. McElhaney

Alabama Court of Civil Appeals

July 17, 2015

Dana Christine Wampol
v.
Justin Rolfe McElhaney

          Appeal from Montgomery Circuit Court. (DR-12-181.04).

         MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

          OPINION

Page 975

          MOORE, Judge.

         Dana Christine Wampol (" the mother" ) appeals from a judgment entered by the Montgomery Circuit Court on competing postdivorce petitions filed by her and Justin Rolfe McElhaney (" the father" ). We affirm in part and reverse in part.

         Procedural History

         The parties were divorced by a judgment of the trial court in November 2012. The parties were awarded joint legal custody of their minor child, D.M. (" the child" ), the mother was awarded primary physical custody of the child, and the father was ordered to pay monthly child support. On January 2, 2014, the father filed a petition requesting that the mother

Page 976

be required to show cause why she should not be held in contempt of court. On January 24, 2014, the mother filed an answer and a counterpetition, seeking, among other things, sole legal custody of the child and requesting, among other things, that the trial court hold the father in contempt and order him to pay her attorney's fees. On March 5, 2014, the father answered the mother's counterpetition. On March 6, 2014, the father filed an amended petition seeking, among other things, increased visitation or, alternatively, joint physical custody of the child. On April 2, 2014, the mother filed an answer to the amended petition. On June 19, 2014, the mother filed an amendment to her counterpetition, requesting a modification of child support. After a trial, the trial court entered a judgment on October 8, 2014, which, among other things, modified the father's visitation with the child and reduced the father's child-support obligation. On October 30, 2014, the mother filed a postjudgment motion. On December 9, 2014, the trial court entered a judgment amending its previous judgment with regard to child support and clarifying the father's visitation schedule. On January 16, 2015, the mother filed her notice of appeal.

         Discussion

         On appeal, the mother first argues that the trial court erred in excluding the testimony of Jennifer McElhaney, the father's current wife, based on the husband-wife privilege. See Rule 504, Ala. R. Evid.

" '" ' The standard applicable to a review of a trial court's rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence.'" Mock v. Allen, 783 So.2d 828, 835 (Ala. 2000) (quoting Wal--Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala. 1998))....
" '" 'The second principle " is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties." '" Mock, 783 So.2d at 835 (quoting Wal--Mart Stores, 726 So.2d at 655, quoting in turn Atkins v. Lee, 603 So.2d 937, 941 (Ala. 1992)). See also Ala. R. App. P. 45. " The burden of establishing that an erroneous ruling was prejudicial is on the appellant." Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala. 1991).'
" Middleton v. Lightfoot,885 So.2d 111, 113-14 (Ala. 2003). The Alabama Rules of Evidence provide that a judgment cannot be reversed because evidence was improperly excluded unless 'the substance of the evidence was made known to the court by offer or was apparent from the context within ...

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