Fact Findings in Bench Trial Obviate Need For Objection or Post-Judgment Motion

A mother argued that there was insufficient evidence to support the trial court’s custody decision. She had not raised this argument in the trial court. Nonetheless, it was preserved for appeal. Because this was a bench trial, in which the trial court made factual determinations on the custody issue, the mother could challenge sufficiency on appeal without having raised it by objection or post-judgment motion below. Adams v. Adams, No. 2070895 (Ala. Civ. App. Apr. 24, 2009); see Tyson v. Tyson, No. 2070557 (Ala. Civ. App. Apr. 24, 2009)

The trial court modified the parties’ divorce agreement to give the father sole physical custody of the parties’ minor children. The mother appealed, arguing that the evidence did not support this change. The father replied that the mother had not preserved this issue for appeal. Pointing to New Properties, L.L.C. v. Stewart, 905 So. 2d 797 (Ala. 2004), the father argued that, because the mother had not challenged the sufficiency of the evidence in a post-judgment motion, she could not press the issue in the appellate court.

The Court of Civil Appeals disagreed. The decision in New Properties held that,

in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.

(Emphasis added.)  This rule did not apply here, the appellate court held, because the trial court had made factual findings on the custody issue. The lower court’s various determinations — that there had been a "material change in circumstances" so that changing custody would do the children a "positive good" that would "more than offset" any "disruptive effect" the change might have — "encompasse[d] matters that require factual determinations rather than legal conclusions." These findings of fact meant the mother did not have to move post-judgment in order to preserve her sufficiency challenge. As New Properties also stated:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion for judgment or a motion for a new trial.

The mother’s sufficiency challenge was thus properly before the Court of Civil Appeals, which went on to address the issue, ultimately affirming the trial court.

(The Court of Civil Appeals applied this same rule in another family-law case in Tyson v. Tyson, No. 2070557 (Ala. Civ. App. Apr. 24, 2009).)