Alabama Appellate Courts Rely on the Ore Tenus Rule When Evidence is Disputed. Here is What You Need to Know:
Ore Tenus Meaning - Ore Tenus refers to verbal or oral statements and the practice of a presumption of correctness the appeals court gives to the findings of fact reached by a trial court judge in a non-jury cases.
Alabama law says in cases 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. The problem with family law matters it comes down to who is being truthful, who will the judge believe, and sadly, in many counties, gender; although using gender is unconstitutional (See Ex Parte Devine).
In Contested Matters - Many attorneys go to hearing without providing the court case law to back up a stated position. Without case law only opinionated information is provided thus allowing a judge to make open ended decisions based on the ore tenus rule. Obviously, that is not good. It allows a judge to make an unbridled decisions.
ALFRA legal research shows 80% of contested family law cases are reversed on appeal, even when case law is not presented. It appears many (not all) Alabama trial judges totally disregard Alabama laws. In disputed evidence situations, because of the ore tenus rule, the appellate court will assume the trial judge made necessary findings of fact to support the decision. Regardless if that decision is based on law or what is best for the child.
ALFRA recommends: In all contested matters: 1) Completing live (not written) depositions prior to hearing - to protect against untruthful and often disputed court testimony. Depositions can be used as factual evidence in court and on appeal. 2) When possible, always provide written case law in court to back-up Alabama law regarding a particular issue.
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