28 July 09 - Houston County Judge S. Edward Jackson, the Ore Tenus Rule does NOT Apply to Questions of Law!
The appeal courts have limited power when reviewing judgments of a trial court after a trial court hears evidence ore tenus. Ore tenus is a rule used in Alabama that basically grants a trial court judge UNLIMITED power when there is disputed verbal evidence.
The good news: where there is a question presented on appeal whether the trial court correctly applied the law, the ore tenus rule has NO value. The appellate courts review questions of law de novo, which means on the basis of law, even in an ore tenus cases.
In Holt v Whitehurst, No. 2080131 (Ala. Civ. App. July 17, 2009) the Civil Court of Appeals said trial court Judge S. Edward Jackson of Houston County made a mistake when entering a judgment for the father when the mother attempted to change principal residence of the minor son BECAUSE the trial court did not give the mother a chance to call her witnesses. According to Rule* 52 (c) the trial court could not have entered judgment against the mother until she was fully heard. Under the Relocation Protection Act, the burden of proof is on the mother, as the relocating parent.
*Alabama courts have Rules in place to circumvent outdated Alabama laws. Now, they need to create a rule to FINE judges that make mistakes!