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holding that, when the appellant had been represented at trial by counsel of his choice, ineffective assistance of counsel was not a valid ground for reversing a judgment because the guarantee of effective assistance of counsel provided by the Sixth Amendment of the United States Constitution applies only to criminal actions
Summary of this case from Rel v. RelOpinion
Civ. 717.
April 7, 1976.
Appeal from the Circuit Court, Jefferson County, George Lewis Bailes, J.
McCollough, McCollough Landrum, Birmingham, for appellant.
Does a person have a right to be represented in a divorce case by a competent attorney wherein real and personal property as well as personal rights are involved. Under the totality of circumstances considering all of the evidentiary matters, was this trial conducted in such a manner as was reflected by the decree of divorce which should fairly reflect the evidence brought forth as reflected by the transcript. Did the lower court abuse its discretion in awarding alimony to the appellee below based upon the evidence presented at the hearing. Was the award as reflected by the decree of alimony and child support and disposition of personal as well as real property by the lower court an abuse of discretion based upon the evidence taken at the hearing.
Richard L. Taylor and Van Gamble, Birmingham, for appellee.
Unless a trial is conducted in such way as to constitute a farce, or a mockery of justice, or if the representation is only perfunctory, in bad faith or a sham, a reviewing court will not review on appeal the conduct of trial counsel. Taylor v. State, 291 Ala. 756, 287 So.2d 901; Williams v. Beto, 354 F.2d 698 (5 Cir. 1965). Ignorance, blunders, negligence or misapprehension by counsel, not attributable to the adverse party, are not grounds for a new trial. Culp v. Culp, 216 S.W.2d 551 (Mo.App.) 27A C.J.S. Divorce § 158, p. 596. A master's findings, unless clearly erroneous, are to be accepted as fact by the Court in a non-jury case. Rule 53(e)(2) ARCP.
This appeal arises from a decree divorcing the parties and granting alimony, child support and certain property to the wife. Affirmed.
Wife sued for divorce, alleging adultery. She sought alimony and child support pendente lite. A reference was ordered by the court. The master reported husband's income to be approximately $1,100.00 per month and recommended an allowance of $400.00 per month support and maintenance pendente lite. No exceptions or objections being filed thereto, the report was confirmed by the court.
Considerable evidence was introduced concerning husband's adulterous relationship with a young woman who was 19 at time of trial. This evidence included photographs and letters found in husband's traveling bag and wife's testimony of telephone conversations between husband and the young woman in her presence. Husband explained that he allowed his wife to find the photographs and letters and overhear the conversations to insure that she gave him a divorce. It appears that the desired result was achieved.
The decree awarded the home and newest car of the parties to the wife. She must continue to make payments on these properties. Alimony and child support totaling $400.00 per month were awarded to wife.
Husband's primary argument on appeal is that the case should be reversed because he was not represented by competent counsel at trial. He cites no cases in support of this position and admits that this is a case of first impression. Apparently, husband relies on the many cases concerning adequacy of representation for the criminal defendant. See Taylor v. State, 291 Ala. 756, 287 So.2d 901. Even were we to find that husband was not adequately represented below (to the contrary, it appears that his attorney endeavored to make the best of a nearly impossible situation), we would not be willing to grant the relief sought by husband. Cases such as Taylor deal with the rights of criminal defendants to effective representation. This right to effective assistance of counsel is based on the Sixth Amendment's guaranty of assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. The Sixth Amendment applies only to criminal prosecutions. While an individual should certainly be entitled to effective legal representation in civil suits, to allow a party to obtain a reversal as suggested by husband could create an unmanageable situation. Here the husband was represented by counsel of his choice. There was no allegation of any fraud or collusion by counsel. Nor was it asserted that the opposing party had anything whatsoever to do with what husband calls his inadequate representation.
Under these circumstances courts of other states have held that a losing party is not entitled to a new trial. Culp v. Culp, Mo. App., 216 S.W.2d 551; Marks v. Marks, 163 Kan. 454, 182 P.2d 885. This position is correct and should prevail in Alabama.
Husband's third and fourth issues presented for review concern the award of alimony and child support. He concedes that there was ample testimony of need by the wife and child to support the award. However, husband says there was no testimony showing his ability to pay and that, because this factor must be considered by the trial judge in making its award, the case is due to be reversed.
This position is not supported by the record. Before trial a reference was held on the matter of alimony and child support pendente lite. The report of the special master found husband's income to be $1,100.00 per month, net. No objection to the report was filed and it was accepted by the court. Husband introduced no evidence to show that his income had increased or decreased since the report was filed. Therefore, the court was entitled to rely on the evidence of a monthly income of $1,100.00 in fixing alimony and support.
Appellee having moved for an allowance for attorney's fee on appeal, it is considered that she have and recover of defendant the sum of $350.00 as a reasonable attorney's fee for services of her attorney on appeal.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.