S.A.M. v. M.H.W.
261 So. 3d 356
Ala. Civ. App.2017Background
- Unmarried parents: mother S.A.M., father M.H.W.; child born Dec. 2, 2012. Father filed to establish paternity and for custody in Oct. 2015.
- Mother worked seasonally for U.S. Forest Service in Washington (May–Oct 2015); left child with maternal grandmother in Alabama during that season; planned to relocate with child if rehired and sought to hire a live‑in nanny funded partly by child support.
- Mother previously took a four‑month road/camping trip with the child after losing employment; father visited briefly on that trip and camped with child two nights.
- Father is a pharmacist residing and employed in Steamboat Springs, Colorado; testified to stable hours, income, and residence; has hospital day‑care access but some hours limitations.
- At trial the juvenile court awarded physical custody to the father, citing greater stability of father’s residence/employment; mother moved for reconsideration and appealed after deemed denial of her postjudgment motion.
- On appeal mother argued, inter alia, the judge relied on extrajudicial facts (about marijuana use in Washington/among outdoor workers), violated evidentiary rules by injecting personal observations, and errors regarding custody analysis and retroactive support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court failed to apply Devine custody factors | Mother: juvenile court didn't properly apply Devine progeny factors in custody decision | Father: court applied stability factors correctly favoring him | Pretermitted — appellate court reversed on other ground and remanded; other arguments not reached |
| Whether judge impermissibly considered extrajudicial facts / violated Rules 605 & 201 | Mother: judge relied on personal observations about marijuana use in Washington and among forestry/outdoor people, effectively testifying and taking judicial notice of facts outside record | Father: judge used remarks to assess mother's credibility, not as adjudicative facts | Court held judge improperly interjected extrajudicial facts and violated Rules 605 & 201; error was not harmless; reversed and remanded for new trial before different judge |
| Whether court could take judicial notice of prevalence/legal status of marijuana in Washington | Mother: such facts are not proper judicially noticed adjudicative facts here | Father: suggested court could rely on general knowledge or media about marijuana legality/use | Court: Alabama courts cannot take judicial notice of sister‑state law or unverified news; the generalized assertions did not meet Rule 201 standards |
| Whether court erred in failing to award retroactive child support / include CS‑42 form in record | Mother: trial court erred on retroactive support and omitted CS‑42 from record | Father: (not reached in opinion summary) | Not decided on merits; appellate court pretermitted these issues after reversing on extrajudicial‑facts ground |
Key Cases Cited
- Ex parte Devine, 398 So.2d 686 (Ala. 1981) (sets factors relevant to child‑custody determinations)
- Ex parte Adams, 211 So.3d 780 (Ala. 2016) (comments on improper judicial remarks in family cases)
- United States v. Paiva, 892 F.2d 148 (1st Cir. 1989) (discusses limits on judge acting as witness and commenting on evidence)
- United States v. Lewis, 833 F.2d 1380 (9th Cir. 1987) (judge may not rely on personal experience to take judicial notice of facts)
- Vaughn v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132 (Tenn. 1991) (prohibits judge using personal observations as evidence; mandates reversal when such observations influence decision)
- Quercia v. United States, 289 U.S. 466 (U.S. 1933) (recognizes judge's power to comment and summarize but limits use of personal observations as evidence)