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ORE TENUS RULE & JUDICIAL NOTICE - PETRINA V. PETRINA

Petrina v. Petrina, [Ms. 2140870, July 15, 2016] __ So. 3d __ (Ala. Civ. App. 2016). The Court of Civil Appeals reverses a judgment of divorce and its division of marital assets and debts subject to the terms of prenuptial agreement upon finding the Lee Circuit Court erred in taking judicial notice of facts concerning increased earning opportunities for naturalized American citizens set forth in the publication titled "Madeleine Sumption & Sarah Flamm, Migration Policy Inst., The Economic Value of Citizenship for Immigrants in the United States, (Sept. 2012)." Because the Lee Circuit Court took information from that publication into consideration in deriving the property settlement, when the publication could not properly be considered, the judgment was entered in error.

The opinion recites how Alabama courts construe Rule 201, Ala. R. Evid., concerning the proper taking of judicial notice:

"Rule 201, Ala. R. Evid., allows a court to take judicial notice of certain facts, even ex mero motu. See Rule 201(b) ('A court may take judicial notice whether requested or not.').

"'A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'

"Rule 201(b), Ala. R. Evid. This rule has been explained as follows:

"'Consistent with historic practice, a court is to dispense with the customary methods of proof "only in clear cases." Fed. R. Evid. 201 advisory committee's note. A court is to take judicial notice of adjudicative facts only when those facts are beyond reasonable dispute either because they are generally known within the court's territorial jurisdiction or because they can be accurately and readily determined by consulting sources that are acknowledged to be accurate. This limit upon judicial notice is consistent with historic Alabama law. See, e.g., Peebles v. Miley, 439 So. 2d 137 (Ala. 1983) (court judicially knows that great majority of collections are done on a contingent fee basis); Strother v. Strother, 355 So. 2d 731 (Ala. Civ. App. 1978) (judicial notice of increases in cost of living due to inflation); Mutual Bldg. & Loan Ass'n v. Moore, 232 Ala. 488, 169 So. 1 (1936) (facts found in reliable source).'

"Advisory Committee Notes, Rule 201, Ala. R. Evid. (emphasis added).

"....

"However, Alabama courts have concluded that some matters are outside the general or common knowledge and, therefore, not appropriate for judicial notice. For example, our supreme court has refused to take judicial notice that an arsenal was a 'sole hub' for certain Army activities. See Westwind Techs., Inc. v. Jones, 925 So. 2d 166, 171 (Ala. 2005) ('Although the activities of Redstone Arsenal in Madison County might well form a part of the common knowledge of every person of ordinary understanding and intelligence in Madison County, whether Redstone Arsenal represents the "sole hub of procurement and acquisitions" for the aviation branch of the United States Army would not be a matter susceptible of such common knowledge.'); see also Argo v. Walston, 885 So. 2d 180, 183 (Ala. Civ. App. 2003) (concluding that the trial court erred in determining the appropriate amount of damages when that determination was based in part on the judge's personal knowledge about fishing ponds). Also, in Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 484, 213 So. 2d 211, 217 (1968), our supreme court concluded that the reasonableness of certain bills for medical treatment and medication were matters 'outside the realm of common knowledge.'"

B.H. v. R.E., 988 So. 2d 565, 569-70 (Ala. Civ. App. 2008). See also Independent Life Insurance Co. v. Carroll, 222 Ala. 34, 37, 130 So. 402, 405 (1930) (explaining that courts do not take judicial notice of facts merely because they may be ascertained by reference to dictionaries or other publications or of that cannot be known without, for example, expert testimony).

Id., Ms. *7-9.

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