A retiree who was disabled and clearly suffered from dementia was denied an alimony modification because he did not show what his income at the time of the original order was, so therefore he did not give any evidence that it changed as a result of his condition, the Court of Appeals ruled in Barnes v. Barnes (Va. Ct. App. 10/128/14).
The man's lawyer had introduced evidence that his current monthly income was $3,444, and asked the trial court to take judicial notice of an earlier court finding -- recited in the appeals court opinion in Barnes v. Barnes, 16 Va.App. 98, 428 S.E.2d 294 (1993) -- that his monthly income had been $7,700 when the alimony was set. However, in the view of the Fairfax Circuit Court and the Court of Appeals, he could have, but did not, move for that Court of Appeals opinion to be admitted into evidence in the trial court. Instead, he asked the trial court to take judicial notice of an adjudicated fact from what was "another case", even though it was essentially in the same case between the same parties. The Court rules that:
"While courts generally have discretion to take judicial notice, a trial court has no discretion to take judicial notice of an adjudicated fact from another case unless that case is offered into evidence."
This is troubling, especially because, when offering such an opinion into evidence, even if marked as an exhibit, many lawyers would have, until now, consdiered that to be a request to take judicial notice, and would have seen little or no distinction between offering it as an exhibit and asking the court to take judicial notice of it.
Also, it is not clear that this would be considered "another case". A fact found in an earlier round of litigation between the parties is often considered "the law of the case" and immune to later questioning.