A Ringing Endorsement of Ore Tenus

Too often, the Alabama Court of Civil Appeals has seemed to have a schizophrenic relationship with the Ore Tenus rule, citing it with approval in some cases and shoving it aside in others, often without clear justification for the different treatment. Here, at least, is one case where the court cites it and endorses it.

The Ore Tenus rule accepts the reality that we trust trial court judges. It says that when a trial court judge, the finder of fact, listens in a court hearing and has the opportunity to judge for himself or herself the demeanor and credibility of the various witnesses, that judge’s findings of fact and specifically the judge’s determination of child custody are presumed to be correct and not to be changed by an appellate court unless it is an abuse of discretion or “the evidence so fails to support the determination that it is plainly and palpably wrong.”

As I have lamented here in the past, trial courts never really know when the appellate court is going to accept the trial court’s findings of fact and when it will reject them; the appeals court has certainly violated its own standard from time to time, discarding findings of fact that didn’t seem to involve abuse of discretion and didn’t seem to be plainly and palpably wrong. So it’s always heartening to see an opinion like this one where the appeals court repeatedly and approvingly cites the trial court’s findings of fact and simply accepts them.

The case is Adams v. Adams, Case No. 2070895 (Ala. Civ. App. April 24, 2009). As so many cases like this do, this one makes you stop and say a prayer for the two little boys who have to grow up with these two for parents. Dad is accused of kicking and shoving Mom and kicking one of the children to get him to make room for Dad on the bed. Mom is accused of hitting Dad and the children and of picking verbal fights with nearly everyone, roundly cursing anyone who crosses her in front of her children and their friends. One of the more colorful encounters occurred when Mom allegedly jumped over chairs in a bar and attacked another woman over a pack of cigarettes.

The trial court, engaging in an exercise for which the rest of us should be eternally grateful, sorted all this out and awarded Dad custody of the boys. In doing so, the trial court stated its findings:

The Court heard numerous witnesses and observed their demeanor and also received documentary evidence. The Court finds that the [mother’s] testimony was not credible. The Court further finds that domestic violence was committed by both parties during the marriage. Thus, any presumptions against either party created by the domestic violence statutes (§[§] 30-3-130 through -136, Ala. Code 1975) cancel each other out so that no presumption either against the [mother] or against the [father] is in place or if in place offset each other.

The Court finds that there has been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody will more than offset any disruptive effect caused by the change in custody. The Court thus finds that the [father] has met his burden of proof under the McLendon standard. Adams at 13 (footnote omitted).

The appeals court cited the Ore Tenus rule and described it in this way:

On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So. 2d 433, 434 (Ala. Civ. App. 1993) (citing Benton v. Benton, [520 So. 2d 534 (Ala. Civ. App. 1988)]). As the Alabama Supreme Court highlighted in [Ex parte] Patronas, [693 So. 2d 473 (Ala. 1997)], ‘”[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.”‘ Patronas, 693 So. 2d at 474 (quoting Ex parte Bryowsky, 676 So. 2d 1322, 1326 (Ala. 1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So. 2d at 475. Cheek v. Dyess, 1 So. 3d 1025, 1029 (Ala. Civ. App. 2007). Adams at 17-18.

Noting that much of the testimony of the parties was is dispute and that the trial court had pointed out that Mom’s testimony was not credible, the appeals court noted that the trial court’s ability to assess the demeanor and credibility of witnesses is particularly important in child custody cases, citing Ex parte Fann, 810 So. 2d 631 (Ala. 2001). “After reviewing the evidence in the record on appeal, we are unable to say that the mother has demonstrated that the trial court’s custody-modification judgment was so unsupported by the evidence as to be plainly and palpably wrong. We conclude that the evidence in the record supports the trial court’s finding that the father met his burden of proof under Ex parte McLendon, supra. Accordingly, we affirm as to the custody issue.” Adams at 20-21.

On a separate issue, the appeals court also affirmed the trial court’s handling of the depreciation Dad deducted from his income for purposes of child support. Alabama Rule of Judicial Administration 32 states that “ordinary and necessary business expenses” does not include the accelerated component of depreciation sometimes allowed by the Internal Revenue Service. However, in this case, said the appeals court, Dad had deducted only his straight-line depreciation, which is entirely appropriate.

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