Ore Tenus Applies in Alabama – Until it Doesn’t

The Alabama Court of Civil Appeals is always careful to cite the Ore Tenus rule when it sustains the interpretation of facts from the trial court below. When it disagrees with that interpretation, however, it conveniently ignores the principle. We have another illustration of this behavior in C.E. v. C.C.H., Case No. 2040599 (Ala. Civ. App. August 12, 2005).

The case concerns a child born to unmarried parents. She lived with her mother until she was three or four, when she went to live with her father. The father received court-ordered custody a couple of years later. When the child was 12 or so, the mother petitioned for custody.

The Dale County Juvenile Court conducted a trial, received testimony from the parties and from the child in camera (a private conversation between the child and the judge), and issued a judgment that the mother had met the McLendon standard for changing custody. The juvenile court awarded custody to the mother, and the father appealed.

The Appeals Court’s opinion doesn’t describe the specific findings of the juvenile court. However, had those findings been deficient, the Appeals Court presumably would have said so. Instead, the Appeals Court simply substitutes its opinion for that of the trial court and declares that the mother failed to meet her McLendon burden.

The juvenile court’s conclusion that the mother met the standard imposed by Ex parte McLendon is erroneous. The mother’s evidence demonstrated that she may well have improved her circumstances. However, improvement in the mother’s circumstances is not sufficient to meet the requirements of Ex parte McLendon. Lord v. Lord, 891 So. 2d 898, 903 (Ala. Civ. App. 2004); and Andrews v. Andrews, 495 So. 2d 688, 690 (Ala. Civ. App. 1986). The father has the presumption in his favor that custody should not be disturbed unless the inherently disruptive effect of changing custody would be offset by a material promotion of the child’s welfare by such a change in custody.

The evidence, even if it does indicate that the child is in need of mental-health counseling because of newly arisen mental-health issues, does not support a change of custody to the mother. The child has been provided a stable home by the father. The father testified that counseling would be available through the military in Missouri and that he would seek counseling to address the child’s mental health. The mother, although she indicated that she was concerned about the content of the letters, did not testify about seeking counseling for the child. Her testimony indicated that she wanted the child to be happy and that she could now provide a stable home for the child because she had improved her circumstances. None of the evidence presented established that placing the child in the mother’s custody would materially promote the child’s best interests. The child’s somewhat equivocal testimony concerning her desire to live with her mother was also insufficient to overcome the presumption in favor of the father. See Glover v. Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992) (holding that where the child simply expresses a preference for one parent in a modification proceeding requiring the application of Ex parte McLendon, such a preference, without more, is insufficient to justify a change in custody). Accordingly, we must reverse the judgment of the juvenile court and remand the cause for the entry of a judgment consistent with this opinion.

As every Alabama law student knows, a judgment based on ore tenus evidence is presumed correct and not to be disturbed on appeal “unless a consideration of the evidence and all reasonable inferences therefrom reveals that the judgment is plainly and palpably erroneus or manifestly unjust.” Arzonico v. Wells, 589 So. 2d 152, 153 (Ala. 1991).

This child may be better off with her father than with her mother. I don’t know the child, so I can’t say. The problem is that the Appeals Court doesn’t know either. That’s why the Ore Tenus rule exists. Ignoring it undermines the effectiveness of Alabama courts.


  1. Paul M. says:

    I read this case. If mother didn’t satisfy the McLendon requirements, she can’t prevail, right? Whether she met her burden is a legal issue which is not entitled to an ore tenus presumption in favor of the trial court on appeal.

  2. Anonymous says:

    The opinion is a plurality, therefore, not the opinion of the entire court. Three judges concurred only in the result.
    The ore tenus rule accords to factual findings a presumption of correctness. Issues of law are reviewed de novo.
    I read the case as saying that the mother, despite improvement, did not adduce sufficient evidence to show that the disruptibve effects of a change in custody would be offset by a material promotion of the child’s welfare. The reversal was on a legal basis.
    The summarized testimony does not indicate that the mother made this showing.
    I think you are wrong.

  3. lois says:


  4. Lee Borden says:

    Here’s the bigamy statute. You can decide for yourself.

    § 13A-13-1. Bigamy.
    (a) A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse. A person who contracts a marriage outside this state, which would be bigamous if contracted in this state, commits bigamy by cohabiting in the state with the other party to such a marriage.
    (b) A person does not commit an offense under this section if:
    (1) He reasonably believes that his previous marriage is void or was dissolved by death, divorce or annulment; or
    (2) He and the prior spouse have been living apart for five consecutive years next prior to the subsequent marriage, during which time the prior spouse was not known by him to be alive.
    (3) The burden of injecting the issues under this subsection is on the defendant, but this does not shift the burden of proof.
    (c) Bigamy is a Class C felony.

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