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NON-JURY TRIAL & ISSUE PRESERVATION - REEVES V. FANCHER

Reeves v. Fancher, [Ms. 2140925, May 20, 2016] __ So. 3d __ (Ala. Civ. App. 2016). This was a non-jury proceeding wherein a divorced spouse challenged the right of the other spouse to relocate with the parties’ minor child to another state given the provisions of the Alabama Parent-Child Relationship Protection Act, §§ 30-3-160 to 30-3-169.10, Ala. Code 1975. After conducting an ore tenus hearing on the parties’ claims, the Dallas Circuit Court entered judgment finding there had been a material change in circumstances and awarded custody to the objecting spouse. This appeal followed.

The first issue was whether the Dallas Circuit Court erred in failing to grant a motion for a “judgment as a matter of law” following the father’s presentation of evidence in his case-in-chief. Ms. *6. The court noted that as the proceedings were conducted without a jury and the trial court received ore tenus evidence, the motion is properly referred to as a motion for a “judgment on partial findings” pursuant to Rule 52(c), Ala. R. Civ. P. In non-jury proceedings, a party need not renew a motion for a judgment on partial findings at the close of the evidence:

In a case tried before a jury, to preserve for appellate review a question of the sufficiency of the evidence, a party must raise that question in a Rule 50(a), Ala. R. Civ. P., motion for a judgment as a matter of law, at the close of all of the evidence. Barnes v. Dale, 530 So. 2d 770, 776-77 (Ala. 1988). This principle does not apply in a non-jury case. Seier v. Peek, 456 So. 2d 1079, 1081 (Ala. 1984).”

Ms. *6, quoting Lawson v. Harris Culinary Entrs., LLC, 83 So. 3d 483, 495,n. 7 (Ala. 2011). A Rule 52(c) motion was formerly treated in a non-jury action as a Rule 41(b), Ala. R. Civ. P. motion for an involuntary dismissal. Ms. *7. Case law addressing involuntary dismissals under former Rule 41(b) remains equally applicable to a judgment on partial findings entered pursuant to Rule 52(c). Ms. *7-8, citing King Power Equip., Inc. v. Robinson, 777 So. 2d 723, 726 (Ala. Civ. App. 2000). The standard of review on such a motion is set forth in Loggins v. Robinson, 738 So. 2d 1268, 1271 (Ala. Civ. App. 1999):

[S]ince the judge is the trier of fact in a non-jury action, he or she may weigh and consider the evidence on a motion for an involuntary dismissal. The normal presumptions of correctness attach to a trial court’s ruling on an involuntary dismissal. The trial court’s ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust.

Ms. *8, quoting King Power Equip., Inc. at 726. Upon consideration of the evidence before the circuit court at the time of the motion for judgment on partial findings, the court concludes there was insufficient evidence of a material change in circumstances to justify a change in custody such that the motion should have been granted. Accordingly, the judgment was reversed and the case remanded.

Related Documents: Reeves v Fancher 5-20-16

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