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RAIFORD L. QUEEN v. GLORIA MIDDLETON QUEEN

AUGUST 02, 1989

RAIFORD L. QUEEN
v.
GLORIA MIDDLETON QUEEN



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Raiford L. Queen appeals a final judgment of divorce entered in the Chancery Court of Adams County, Mississippi, on June 26, 1987. Raiford complains not that his former wife, Gloria Middleton Queen, was granted a divorce on grounds of habitual cruel and inhuman treatment, but that he was ordered to pay her alimony - to be specific, $4,000.00 in lump sum alimony, payable in installments. The grounds for Raiford's appeal are procedural: that Gloria's complaint made no timely demand for alimony.

 Gloria's original complaint did not claim alimony. The case went to trial in that posture. After the final judgment of divorce was entered, Raiford moved to alter or amend the judgment to delete "any and all awards of alimony." Gloria then moved for leave to amend her complaint to include a request for alimony. Rule 15 (b), Miss. R. Civ. P. On September 9, 1987, the Chancery Court granted Gloria's motion and allowed her to amend "to include a request for alimony as included in the final decree of divorce." The Court denied Raiford's motion to alter or amend judgment.

 This appeal has followed.

 II.

 A.

 At the outset we note that Gloria, as Appellee, was four months tardy in filing her brief. When she did file it, the Court, upon Raiford's motion, ordered it stricken. Reversal is not required, however, if we may say with confidence there was no error below. See Dethlefs v. Beau Maison Development Corp., 458 So. 2d 714, 717 (Miss. 1984); State v. Maples, 402 So. 2d 350, 353 (Miss. 1981); Burt v. Duckworth, 206 So. 2d 850, 853 (Miss. 1968); Ford v. City of Pascagoula, 228 Miss. 265, 270-71, 87 So. 2d 558,

 589-60 (1956). This policy is but a function of the (quite rebuttable) presumption of correctness we accord orders and judgments of our trial courts. Edlin v. State, 533 So. 2d 403, 410 (Miss. 1988); Clark v. State, 503 So. 2d 277, 280 (Miss. 1987); Blackwell v. Sessums, 284 So. 2d 38, 39 (Miss. 1973); Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973); Walker v. Jones County Community Hospital, 253 So. 2d 385 (Miss. 1971).

 In route to affirmance in Ford, we said

 We have concluded . . . on the basis of the appellant's assignment of errors and its brief in support thereof, together with a careful examination of the record in the case, that the filing of a brief by the appellee is unnecessary to the proper disposition of this appeal.

 228 Miss. at 270, 87 So. 2d at 559. The appropriateness of these words will become apparent.

 B.

 There is a second preliminary point. Where one such as Raiford seeks on appeal to complain that his adversary proved and obtained relief on a point not pleaded, he must show that he timely objected at trial. See Rule 103 (a)(1), Miss. R. Ev.; Peterson v. State, 518 So. 2d 632, 635 (Miss. 1987); Jones v. Welford, 215 So. 2d 240, 242 (Miss. 1968); Liles v. May, 105 Miss. 807, 817, 63 So. 217, 218 (1913). Raiford cannot show anything of the sort for he has failed of a more basic duty. He has failed to present us with a transcript of the trial. Upon giving his notice of appeal, Raiford received written notice from the court reporter that a transcript of the trial would cost him $164.00. On September 29, 1987, Raiford filed his "Designation of the Record" and expressly directed that there be "no transcription of the evidence in the case. . . as this is an Appeal strictly on the pleadings."

 It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record showing that an error of reversible proportions has been committed and that the point has been procedurally preserved. Moawad v. State, 531 So. 2d 632, 635 (Miss. 1988); Williams v. State, 522 So. 2d 201, 209 (Miss. 1988); Williams v. State, 522 So. 2d 201, 209 (Miss. 1988); Winters v. State, 473 So. 2d 452, 457 (Miss. 1985); Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973). While we overlook procedural niceties at times where fundamental rights are at stake, see Brooks v. State, 209 Miss. 150, 155, 46 So. 2d 94, 97 (1950), we know of no authority for pretermitting

 the requirement of a record reflecting the error.

 Raiford's failure to provide a transcript has a further effect of importance. Established law of appeal and error requires that we presume Gloria's evidence legally adequate that she may be awarded the alimony decreed. Wade v. Wade, 419 So. 2d 584, 585 (Miss. 1982); Fontaine v. Pickle, 254 So. 2d 769, 770 (Miss. 1971); Harvey v. Dunaway Bros., 232 Miss. 89, ...


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