Improper to Rely on Study Not Part of Evidence…

In this divorce appeal, the trial court modified the parenting time schedule to give the defendant parenting time every other weekend including Sunday overnight, and Monday and Wednesday after school until 7:15 p.m.  The defendant claimed that the trial court erred in relying on a study about the advisability of children waking up in their own beds at the end of the ruling.  At the end of the court’s ruling, the trial court stated:  “I’m also a big believer in the study that kids should wake up in their own bed and that’s why I ruled the way I did on the parenting time.”  However, there was no study introduced as evidence at the hearing, and no witnesses testified regarding the findings of any study.    The Court of Appeals held that  the trial court erred.  A court must make its decision on testimony given in open court, not on extrajudicial information.   Although the plaintiff argued that the trial court made this statement only after making its findings and that the judge’s comments did not indicate that he actually relied on the study, the comments do not bear this out.  The trial court’s comments that it “ruled the way it did” because of its belief in the study indicates that the error was not harmless and that the error did affect the outcome.  By referencing and then relying on a study not introduced into evidnce or part of the record, the trial court committed clear legal error.

You can read the entire opinion here.