Appellate Law

Deferential Ore Tenus Standard Does Not Apply to Questions of Law

"[A]ppellate courts have limited power in reviewing a judgment of a trial court after the trial court hears evidence ore tenus. 'However, where the question presented on appeal is whether the trial court correctly applied the law, the ore tenus rule has no application.'"  Appellate courts review questions of law de novo, even in an ore tenus case.  Holt v. Whitehurst, No. 2080131 (Ala. Civ. App. July 17, 2009).

In Holt, the trial court erred in entering a judgment for the father on the mother's attempt to change the principal residence of the parties' minor son because the trial court did not give the mother an opportunity to call witnesses at the ore tenus hearing.  "Pursuant to the plain language of Rule 52 (c), the trial court could not have entered judgment against the mother until she was fully heard on the issue in question. Under the Act, the burden of proof is on the mother, as the relocating parent."

Full post as published by Alabama Appellate Watch on July 27, 2009 (boomark / email).