author: MURDOCK, Judge.

text:
    Anna K. KAISER v. Kenneth J. KAISER, Jr. Kenneth J. Kaiser, Jr. v. Anna K. Kaiser.
    2010287.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      Mark D. Ryan, Bay Minette, for appellant/cross-appellee Anna K. Kaiser.
    W. Donald Bolton, Jr., Foley; and Oliver J. Latour, Jr., Foley, for appellee/cross-appellant Kenneth J. Kaiser, Jr.
   MURDOCK, Judge.

Anna K. Kaiser, the wife, appeals from a judgment of the Baldwin Circuit Court divorcing her from Kenneth J. Kaiser, Jr., the husband. The wife argues that the trial court erred by awarding primary physical custody of the parties’ three children to the husband and by refusing to require the husband to produce for her review a file prepared by the husband’s private investigator. The husband cross-appeals, arguing that the trial court erred by granting the wife a portion of his retirement accounts as part of its property division and by holding him in contempt of court and sanctioning him for spoliation of evidence.

The parties were married in November 1990, and they subsequently had three children, two boys and one girl. In September 2000, the wife filed a complaint for divorce in the Baldwin Circuit Court, requesting, in pertinent part, primary physical custody of the parties’ children. The wife also filed a motion for temporary custody of the parties’ children, which the trial court granted pending a final hearing on her complaint for divorce.

A few weeks after the wife filed her complaint, the wife’s employer, a law firm where the wife worked as a secretary, filed a motion alleging that the husband, who worked for Gulf Telephone Company, had improperly accessed its telephone lines and had made audiotapes of potentially privileged or confidential communications relating to the firm’s clients. The wife’s employer requested, in pertinent part, that the trial court order the husband to produce the audiotapes to the firm or to the court so that it could be established that no privileged or confidential information had been recorded. The husband denied the allegations of the wife’s employer.

The trial court held a hearing on the employer’s motion at which the father apparently testified that he had made audiotapes of telephone conversations in which his wife had participated from their home; he denied improperly accessing the law firm’s telephone lines. The trial court ordered the husband to produce all of the audiotapes in his possession for review. Thereafter, the husband produced four audiotapes and, at his wife’s suggestion he says, burned several additional tapes. In November 2000, the wife filed a motion alleging that the husband had destroyed audiotapes in violation of the trial court’s order and requesting that the trial court hold the husband in contempt of court for, among other things, spoliation of evidence, and that it require him to pay $500 for the wife’s attorney fees.

In December 2000, the wife served written interrogatories on the husband. Interrogatory number 32 read as follows:

“32. Have you conducted any surveillance of your spouse within the past five (5) years, or has any person or persons conducted such surveillance on your behalf? If so:
“A. State what surveillance you have conducted, including the date, time and place of such surveillance and what you observed.
“B. If some other person or persons conducted such surveillance on your behalf, state the name and address of such person or persons, the date, time and place of such surveillance and state what was related to you as to what was observed?”

Although the record does not contain the husband’s original answer to interrogatory number 32, the husband denied in his deposition that he had employed an investigator to conduct surveillance on the wife. A few days before trial, however, the husband’s counsel filed an amended answer to interrogatory number 32, stating, in pertinent part:

“The [husband’s] father, early in these proceedings, contacted Baldwin Legal Investigations and they conducted certain investigations. This was paid for by the [husband’s] father and no such report or photographs were ever received. The [husband] does not intend to use Baldwin Legal Investigative Services in any way. Counsel for the [husband] made known in the deposition that no investigative services were being used.”

The court held a trial on the merits in June 2001. At trial, the husband admitted that he had actually requested that Baldwin Legal Investigations conduct surveillance on the wife in the spring of 2001 but that he had received funds to pay for the investigation from his father. He also stated that he had lied during his deposition about the surveillance investigation because he did not want the wife’s counsel to find out about the investigation. The husband’s legal counsel denied that he had any knowledge of the investigation.

A few days after trial, the husband again amended his answer to interrogatory number 32. In his second amended answer, the husband retracted his first amended answer and stated that his counsel had filed the first amended answer without consulting him, that his counsel had provided him with the name of an investigator at Baldwin Legal Investigations in the spring of 2001, that the husband had contacted the investigator, and that his counsel had forgotten about their conversation until the husband had reminded him of it. The husband also asserted that the results of the investigation were work product obtained in preparation for his defense and that the investigator’s file would be discoverable only if the husband intended to use the information in the court proceedings.

Subsequently, in July 2001, the wife filed a second motion for contempt and for sanctions. The wife alleged that fraud had been perpetrated on the trial court regarding the surveillance investigation. She requested that the court grant sanctions and award costs based upon the deceit as to the investigation and based upon the earlier destruction of audiotapes.

On July 31, 2001, the trial court entered a judgment in which it divorced the parties, awarded alimony to the wife, divided the marital assets of the parties, and decided the parties’ custody and visitation rights relating to their three children. As to the latter issue, the trial court awarded the husband primary physical custody of the children and awarded the wife the right to visitation with the children in accordance with the trial court’s standard visitation schedule and at such other times as the parties might agree.

On August 20, 2001, the trial court held a hearing on the wife’s November 2000 motion to hold the husband in contempt for his destruction of the audiotapes and on her July 2001 motion for sanctions for the deceit regarding the surveillance of the wife. Because the investigator was not present at the hearing, the trial court continued the hearing as to the wife’s motion relating to the deceit regarding the surveillance of the wife, but it proceeded to hear testimony regarding the destruction of the audiotapes. Thereafter, the trial court entered an order holding the husband in criminal contempt for spoliation of evidence and reserving “the issue of sanctions.”

On August 30, 2001, the wife filed a timely motion pursuant to Rule 59, Ala. R. Civ. P., requesting that the trial court alter its divorce judgment to award her primary physical custody of the children, that it grant her a new trial because of the husband’s destruction of the audiotapes, and that it grant her such other relief to which she might be entitled. The trial court subsequently held a hearing on all outstanding motions and, on November 7, 2001, entered an order stating, in part:

“This case has been one of the most difficult, if not the most difficult, for this Court in over four years of hearing domestic relations cases. The parties have shown complete distrust and hatred of each other.
“The Court’s findings in the original decree were arrived at only after painstaking analysis. It was not easy for this Court to decide custody of these children. After all, the children were the only ones that had not caused the total breakdown of this marriage. Both sides were clearly at fault. (If not legally, certainly in the irretrievable breakdown and incompatibility that had been caused in their unwillingness to try to make a marriage work.)”

Although the trial court found that the husband had lied regarding his hiring of Baldwin Legal Investigations, it concluded that the information gathered in that investigation was protected work product:

“[T]hat information would be privileged and [the wife] would not be entitled to the information gathered by the investigator in anticipation of litigation. Further, the investigator left his file with the Court for an in camera inspection and the Court finds that there is nothing in the investigation records to indicate that had the information been known to the Court prior to the trial or during the trial that this Court’s findings would have been any different. Therefore, the Court as sanctions for [the] contemptuous actions of the [husband] does assess $2,000.00 ... for reimbursement of the [wife’s] attorney’s fees for having to bring this contempt action. A copy of the investigator’s report and file is made a Court’s exhibit if this matter is appealed and is held under seal to be available to the appellate court for review.”

The trial court also determined that the husband had destroyed audiotapes in violation of its order that he produce the audiotapes for review. The trial court concluded:

“However, nothing has been presented to this Court to indicate that there was any information on those tapes that would have altered the findings by this Court. In fact, the [husband] admitted that the tapes did not include any information that was detrimental to the [wife]. Nevertheless, the [husband] should be sanctioned for his deliberate and intentional violation of this Court’s order in destroying the tapes. Therefore, it is ordered that he pay $2,500.00 to the [wife] for the expenses incurred for having to bring this action as well as prior court hearings relating to the spoliation of the exhibits. Further, the [husband] is ORDERED into the custody of the Baldwin County Sheriff for a period of two (2) days.”

Further, the trial court stated that it was amending its judgment “relating to visitation ... so that the children shall spend [with the wife] every Tuesday and Thursday of each week for the time they are released from school and/or daycare until school the next morning.”

On December 5, 2001, the husband filed a postjudgment motion in which he requested that the trial court vacate its order holding him in contempt for destroying the audiotapes and for his deceit regarding the hiring of Baldwin Legal Investigations. The trial court denied the husband’s post-judgment motion stating, in pertinent part:

“[The husband] gave intentionally] false testimony in his deposition, answers to interrogatories and at trial. Further, he destroyed tapes after the Court and his lawyer instructed [him] to turn over the tapes. [The husband] is not found in contempt for possible violation of any wiretapping] laws but is in contempt for his direct and intentional violation of the Court’s order to turn over those tapes as well as his intentionally] false and misleading testimony. This caused delay and expense to both the Court and to [the] opposing party.”

The wife appeals; the husband cross-appeals.

The Wife’s Appeal

The wife argues on appeal that the trial court erred by granting the husband primary physical custody of the children because, she says, it was in the children’s best interests for her to have primary physical custody. Specifically, the wife argues that the trial court erred because she had been the primary caregiver of the children and, according to the wife, the husband would require assistance from family members if he had custody of the children.

The trial court did not make specific findings of fact regarding the basis for its custody determination. As we have held, “[w]hen a trial court does not make specific findings of fact concerning an issue, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” McGough v. McGough, 710 So.2d 452, 453 (Ala.Civ.App.1997). Also, where, as in this case, a trial court’s custody determination is based upon ore tenus evidence, that determination is presumed to be correct and will not be reversed on appeal unless “ ‘the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown.’ ” Bryant v. Bryant, 739 So.2d 53, 55 (Ala.Civ.App.1999) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and witnesses ?nd to hear the evidence. See Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).

This is an action between two fit parents seeking an initial award of custody. “The paramount consideration for a court in a child custody case is the best interests and welfare of the child[ren].” Price v. Price, 440 So.2d 1110, 1110 (Ala.Civ.App.1983).

In considering the best interests and welfare of a child, the court must consider the individual facts of each case:

“The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).

Consistent with the description of relevant factors listed in Ex parte Devine, the wife emphasizes that who the children’s “primary caregiver” has been is an important factor for the trial court to consider in making a custody decision. We agree that who the primary caregiver of a child has been is an important factor. Indeed, it may even be dispositive in an appropriate case. See Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987) (awarding custody to a parent based largely on the parent’s role as the primary caregiver); West v. West, 469 So.2d 610 (Ala.Civ.App.1984) (to like effect). However, in keeping with the holding in Ex parte Devine, this is not the only factor that the trial court was required to consider in making its custody determination.

There is evidence in the present case that would support a finding by the trial court that the wife tired of farm life and gave priority to her social life over her family. It would also support findings that the wife’s relationship with a particular male “friend” substantially contributed to the parties’ divorce and that, as between the wife and the husband, the husband had acted more responsibly towards the children and given greater priority to the interests of the family. The evidence would support a finding that the father participated substantially in the care of the children throughout the parties’ marriage, and numerous witnesses testified that he had a close relationship with the children. Further, the evidence would support findings that the husband would directly exercise his responsibility for the children’s care if the trial court awarded him custody; that he would continue to raise them in the family home, which was located near the father’s parents’ farm; and that he would continue their education at the church school that the children had been attending. Further, the father has family to assist him with the children’s care, when necessary, and the wife has none.

We have carefully reviewed the record, and, given the sensitive nature of some of the evidence, we do not believe that a more detailed discussion of the facts supporting the trial court’s custody award is warranted. We understand the trial court’s lament that this was a difficult ease. We are also mindful that, although the trial court awarded primary physical custody to the husband, it awarded the wife visitation two nights out of every week, in addition to visitation under its standard visitation schedule. Under the totality of the evidence presented, and given the nature and extent of the visitation arrangement ultimately ordered by the court, we cannot conclude that the trial court’s judgment awarding the husband primary physical custody of the parties’ children was an abuse of discretion.

The wife next argues that the husband’s deceit regarding his hiring of Baldwin Legal Investigations (for which he was held in contempt) constituted a waiver of the work-product privilege. The wife contends that the trial court’s refusal to allow the wife to review the investigator’s file constituted reversible error and grounds for a new trial. At the hearings regarding the husband’s false testimony, the trial court stated that it had effectively addressed the husband’s deceit by finding him in contempt; the husband has not cross-appealed from that contempt determination. The court also concluded that the husband had not waived the work-product privilege because the husband had no obligation to assert the privilege until someone was actually attempting to require disclosure of the alleged work product. According to the trial court, the husband properly asserted the work-product privilege when the court ordered that the investigator’s file be produced for review. In addition, after the trial court reviewed the investigator’s file in camera, it stated that the file contained nothing that would have changed its judgment.

We need not address the merits of the wife’s argument regarding whether the husband waived any work-product privilege. We cannot reverse a trial court’s judgment or grant a new trial unless it “appear[s] that the error complained of has probably injuriously affected substantial rights of the parties.” Rule 45, Ala. R.App. P.; see also Rule 61, Ala. R. Civ. P. The husband offered no evidence from the investigator’s file, and there was substantial evidence regarding the wife’s relationship with her “friend” that originated from other sources and that predated the investigation. Therefore, even if we agreed with the wife’s argument regarding waiver of the work-product privilege, we would not, in this case, reverse the trial court’s judgment or conclude that a new trial should have been granted on that basis.

Based on the foregoing, the judgment of the trial court is due to be affirmed as to the issues raised by the wife.

The Husband’s Cross-Appeal

Turning now to the husband’s cross-appeal, we first address the husband’s argument that the trial court erred by awarding the wife a portion of his 401k and ESOP retirement accounts because the parties had not been married for 10 years when the wife filed her complaint for divorce. It was undisputed that the wife’s complaint for divorce was filed before the parties had been married for a period of 10 years. As this court held in Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002), the appropriate date for measuring whether the parties have been married for 10 years for purposes of the division of retirement benefits under Ala.Code 1975, § 30-2-51 (b), is the date of the filing of the complaint for divorce. Smith, 836 So.2d at 900. Accordingly, the trial court erred by awarding the wife a portion of the husband’s 401k and ESOP retirement benefits.

The husband next argues that the trial court erred by holding him in contempt of court for destroying the audiotapes that the trial court had ordered him to produce because, he says, the tapes were inadmissible as evidence under 18 U.S.C. §§ 2511 and 2515. He also argues that the wife did not properly initiate her contempt action for spoliation of evidence under Rule 70A(c)(l), Ala. R. Civ. P., and that the trial court exceeded its authority under Ala. Code 1975, § 12-11-30(5), by imposing a fine exceeding $100 for criminal contempt.

At the August 20, 2001, hearing regarding the wife’s motion to hold the husband in contempt for destruction of the audiotapes, the trial court stated, in pertinent part, “[t]he issue before this Court is whether [the husband] violated an order of this Court by burning the tapes after he was instructed by his lawyer that he was to turn them all over.” At the conclusion of the hearing, the trial court stated, in pertinent part:

“As to the contempt as to the spoliation of evidence of the burning of the tapes, ... I find that you [the husband] are in contempt of this Court for your willful disobedience of the Court’s orders. I am going to set the sanctions down on that for ... the day in which I hear [the wife’s motion for] contempt on the interference with visitation.”

As noted above, in its postjudgment order, the trial court ordered the husband to “pay $2,500.00 to the [wife] for the expenses incurred for having to bring this action as well as prior court hearings relating to the spoliation of the exhibits. Further, the [husband] is ORDERED into the custody of the Baldwin County Sheriff for a period of two (2) days.”

One of the federal statutes cited by the husband provides criminal penalties for illegal wiretapping. See 18 U.S.C. § 2511(1). The other federal statute cited by the husband states that the results of an illegal wiretap generally may not be used as evidence at “any trial.” See 18 U.S.C. § 2515. However, the husband has offered no authority that those statutes prevent the disclosure of the contents of an illegal wiretap to the person who was the object of the wiretap. More importantly, even if the destroyed evidence had been inadmissible, the husband had an obligation to comply with the trial court’s order by, at a minimum, not destroying the audiotapes and by presenting them to the trial court for an in camera review. See generally, 18 U.S.C. § 2520(d)(1) (“good faith reliance on ... a court ... order ... is a complete defense against any civil or criminal action brought under this chapter”).

With respect to the husband’s argument that the wife’s contempt proceeding had not been properly initiated under Rule 70A(c)(l), we note that the wife filed a motion requesting that the trial court hold the husband in contempt for spoliation of evidence in November 2000, shortly after the husband destroyed the audiotapes, and that she “renewed” that motion in July 2001 in conjunction with her request that the trial court sanction the husband for his deceit regarding the hiring of Baldwin Legal Investigations. The husband did not argue before the trial court that the contempt proceeding had not been properly initiated; instead, he argued that federal law prohibited the disclosure of the destroyed tapes. We therefore will not hold the trial court in error in this regard. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).

The husband also argues that the trial court exceeded its authority under Ala.Code 1975, § 12-11-30(5), by imposing a fine exceeding $100 for criminal contempt. The trial court’s order to pay $2,500 for the wife’s attorney fees incurred in connection with the criminal-contempt proceedings and related proceedings regarding spoliation of evidence, however, is not per se a fine. See State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538 (Ala.1977). Nonetheless, it is true that our Supreme Court held in Ex parte Collins, 860 So.2d 1259 (Ala.2003), and in State ex rel. Payne v. Empire Life Insurance Co., that a trial court generally does not have the discretion to award attorney fees in a criminal-contempt action. The husband, however, has not cited those cases, nor made the argument on appeal that the trial court erred by ordering him to reimburse the wife for her legal expenses. Therefore, this court will not hold the trial court in error for doing so. See Chambers v. Advanced Processing Sys., 853 So.2d 984 (Ala.Civ.App.2002); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988); Rule 28(a)(10), Ala. R.App. P.

Conclusion

The trial court’s judgment as it relates to the division of the parties’ marital assets is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion. Otherwise, the trial court’s judgment is affirmed.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . In December 2000, the husband filed a motion with the trial court alleging, in pertinent part, that he had filed a complaint for divorce in the trial court on September 6, 2000, and that the wife's complaint for divorce had not been filed until September 22, 2000. The husband requested that the cases be "consolidated.” Subsequently, the trial court issued an order consolidating the cases.

      . In Ex parte McLendon, 455 So.2d 863 (Ala.1984), our Supreme Court articulated a presumption that is applicable when there has been a prior judicial decree awarding physical custody to one parent (or a nonparent), or a voluntary relinquishment or forfeiture of the physical custody of a child, and the same has been acted upon to the manifest interest and welfare of the child. 455 So.2d at 865-66. The "McLendon presumption” is not applicable in the present case.

      . The wife did not argue at trial, and has not attempted to argue on appeal, that the trial court erred in concluding that the investigator's report constituted work product under the facts of this case; our decision should not be construed as either approving or disapproving of the trial court’s conclusion.

      4. As previously noted, the trial court also found the husband in contempt for his deceit regarding surveillance of the wife and required him to pay the wife $2,000 for her legal expenses regarding that issue. The husband has not appealed from that aspect of the trial court's judgment.

      . Rule 70A(a)(2), Ala. R. Civ. P., defines "criminal" and "civil” contempt, respectively, as follows:
      "(C) 'Criminal contempt' means either:
      "(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court's presence or so near thereto as to interrupt, disturb, or hinder its proceedings; or
      "(ii) Willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.
      "(D) 'Civil contempt' means willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.”
      The court's finding of contempt in the present case falls within the definition of criminal contempt. See State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538 (Ala.1977).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    FAIRFIELD BOARD OF EDUCATION v. Roosevelt ACOFF, Jr.
    2020309.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      Donald B. Sweeney, Jr., and Hope T. Stewart of Bradley Arant Rose & White, LLP, Birmingham, for appellant.
    John D. Saxon and Symantha Christeen Thomas of John D. Saxon, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

The Fairfield Board of Education (“the Board”) appeals from a judgment of the Jefferson Circuit Court issuing a writ of mandamus reversing an order of the Alabama State Tenure Commission and requiring the Board to hold a hearing on whether to terminate the employment contract of Roosevelt Acoff, Jr., a teacher employed in the Fairfield school system on continuing-service status (i.e., a tenured teacher). We reverse and remand.

The record reveals that in October 2001 the superintendent of the Fairfield school system sent Acoff a letter, by hand delivery and by mail addressed to Acoff at 813 Country View Court in Birmingham, informing him that his classroom management had deteriorated to the point that it appeared “out of control” and indicating the superintendent’s intent to place him on paid administrative leave. Acoff claimed that he did not receive the copy of the letter mailed to the Birmingham address; however, Acoff did retain counsel to represent his interests. In November 2001, counsel for the Board sent a letter to Acoff s counsel indicating that Acoff would need to choose between electing to go on personal leave or proceeding through the process of termination of his employment. There is no indication in the record that Acoff or his counsel responded to that letter; however, counsel for Acoff did send a letter to counsel for the Board on December 17, 2001, requesting that Acoff be sent his wages that had accrued during the administrative leave.

On December 19, 2001, the superintendent issued a letter (“the notice letter”) to Acoff notifying him, pursuant to § 16-24-8, Ala.Code 1975, that the Board would consider the termination of his employment contract on January 17, 2002. The grounds alleged in the notice letter that purportedly warranted the termination of Acoff s employment included (1) the failure to perform his duties in a satisfactory manner, (2) incompetence, (3) neglect of duty, and (4) “other good and just cause.” The notice letter was supplemented with 2 “appendices”; one appendix alleged 18 specific deficiencies in Acoff s performance and the other appendix identified 8 potential witnesses who might be called to testify before the Board to describe facts in support of the proposed termination of Acoff s employment contract. The notice letter informed Acoff that he had the right to appear before the Board personally and through counsel and to call and cross-examine witnesses; however, the notice letter also stated that if Acoff wished to proceed with a hearing before the Board, he was to notify the superintendent by filing a written notice of his intention to contest the matter at least five days before January 17, 2002.

The notice letter was sent by certified mail to an alternate address for Acoff on file with the Board — 1924 17th Street North, Bessemer, Alabama, which is the address of Acoffs father’s home; the notice letter, along with certain other items enclosed in the same envelope, was delivered to that address on December 28, 2001. However, neither Acoff nor his counsel filed a written notice with the Board within five days of January 17, 2002, evidencing Acoffs intent to contest the proposed termination of his employment contract, as required by Ala.Code 1975, § 16-24-9. Acoffs counsel contacted the Board’s counsel by telephone on January 15, 2002, requesting a continuance of the hearing. Acoffs counsel also sent a written notice on the date of the hearing indicating his belief that the superintendent’s notice letter did not comply with § 16-24-9 because it was mailed to Bessemer and did not detail the expected testimony of the proposed witnesses; however, no written notice of Acoffs intent to contest the proposed termination of his employment was received by the Board before the fifth day preceding the scheduled hearing. The Board, therefore, proceeded to terminate Acoffs employment contract by a majority vote, pursuant to the procedure specified in § 16-24-9 when a notice of intent to contest a proposed termination is not timely received.

Acoff, through counsel, then sought review of the Board’s decision before the Tenure Commission by filing a “notice of direct appeal” or, in the alternative, a petition for relief from the Board’s action, contending that the Board improperly denied him a hearing with respect to the proposed termination of his employment contract; that filing was accompanied by Acoffs affidavit and an affidavit of his counsel. Although review of school-board termination decisions is typically initiated pursuant to § 16-24-10(a), Ala.Code 1975, which provides for an appeal on the record made before the school board, Ala.Code 1975, § 16-24-37, provides for an alternate remedy by direct appeal to the Tenure Commission if a tenured teacher “has been denied a hearing before the local board of education as required by ... [§] 16-24-9.” The Board responded to Acoffs filing by submitting several affidavits of Board employees tending to show that Acoff had received notice of the proposed termination hearing. The Tenure Commission, at its March 13, 2002, meeting, sustained the Board’s termination of Acoffs employment, expressly finding that Acoff had failed to properly request a hearing before the Board.

Acoff then filed a petition for a writ of mandamus in the Jefferson Circuit Court, seeking review of the Tenure Commission’s decision and requesting that the Board be directed to afford him a hearing. After receiving documentary submissions from the parties, the circuit court entered a judgment concluding that the Tenure Commission’s decision was “against the preponderance of the evidence and the overwhelming weight of the evidence”; that court directed the Board to issue a new notice to Acoff of the proposed termination and to afford him a hearing “in accordance with the governing statutes.”

The Board appeals from the circuit court’s judgment granting Acoff mandamus relief, contending that the circuit court erred in failing to uphold the decision of the Tenure Commission. As a plurality of this court recently noted, a decision of the Tenure Commission sustaining the termination of a tenured teacher’s employment “is ‘final and conclusive’ unless it is ‘unjust’ or is not in compliance with laws governing teacher tenure.” State Tenure Comm’n v. Jackson, [Ms. 2010872, Jan. 31, 2003] - So.2d -, -(Ala.Civ.App.2003) (plurality opinion) (quoting Ala.Code 1975, § 16-24-38). Review of such decisions via petitions for the writ of mandamus is “ ‘limited to two determinations, first, whether the Tenure Commission’s action was made in compliance with the provisions of [§ 16-24-1 et seq., Ala.Code 1975], and second, whether th[at] action was unjust.’ Ex parte Alabama State Tenure Comm’n, 555 So.2d 1071, 1072 (Ala.1989) (quoting Sumter County Bd. of Educ. v. Alabama State Tenure Comm’n, 352 So.2d 1137, 1138 (Ala.1977)). “[T]he decision of the [Tenure] Commission should not be reversed unless the overwhelming weight of the evidence dictates otherwise.” Ex parte Alabama State Tenure Comm’n, 555 So.2d at 1073.

In defense of the circuit court’s judgment, Acoff contends that he was not required to give notice of his intent to contest the Board’s proposed termination of his employment contract because, he says, the notice letter failed to satisfy the requirements of Ala.Code 1975, § 16-24-9, in certain respects. Aeoffs first argument is that the notice letter was not sent to his “last known address,” which he contends was 813 Country View Court in Birmingham, not 1924 17th Street North in Bessemer. According to Acoff, the Bessemer address is that of his father’s residence, and, he claims, he does not live there. However, the Board adduced evidence before the Tenure Commission tending to show that, although the Board knew of the Birmingham address at the time it sent the notice letter, the Board had deemed the Bessemer address to be Aeoffs proper address for receipt of mail because Acoff had previously denied having received the letter that had been sent in October 2001 via certified mail to the Birmingham address. From that evidence, the Tenure Commission could properly have concluded that, from the standpoint of what the Board knew, sending the notice letter to the Bessemer address was reasonably calculated to afford actual notice to Acoff because the Board could not be certain that Acoff would receive materials mailed to the Birmingham address.

We further note that the return receipt that was affixed to the envelope containing the notice letter bears a receipt date of December 28, 2001, exactly 20 days before the date specified for the Board’s consideration of the proposed termination of Aeoffs employment contract. That receipt bears the signature of Aeoffs niece, Candace Acoff. In addition, there was evidence before the Tenure Commission indicating that a paycheck was mailed in the same envelope as the notice letter, along with a memorandum to Acoff stating that the paycheck represented two months’ salary and that certain deductions had not been made from that check. There was also evidence indicating that between January 4 and January 8, 2002, Aeoffs sister Cassandra Acoff had telephoned two different Board employees, had informed the employees that Acoff had received the paycheck but instead wanted two replacement paychecks to be issued and the omitted deductions imposed, and had exchanged the mailed paycheck for two replacement paychecks at the Board’s office.

The foregoing evidence supports the proposition that regardless of whether Aeoffs address, as “last known” by the Board, was in Birmingham or in Bessemer, Acoff had actual notice of the proposed termination in sufficient time to timely notify the Board if he had wanted to contest the proposed action of the Board. Brown v. Brown, 374 So.2d 332, 334 (Ala.Civ.App.1979) (evidence of a defendant’s actual receipt of a motion for relief from a divorce judgment supported the conclusion that service of the motion by certified mail had been effective despite testimony that papers were mailed to the address of a relative). Regardless of whether Acoff considered the Birmingham address to be his legal domicile, the record reveals that Acoff actually received and acted upon certain items enclosed in the envelope mailed to his father’s home in Bessemer, and the Tenure Commission could properly have inferred that Acoff s preference for receiving mail in Birmingham was immaterial to the efficacy of the notice. Cf. Governing Bd. of the Palos Verdes Peninsula Unified Sch. Dist. v. Felt, 55 Cal.App.3d 156, 164, 127 Cal.Rptr. 381, 385 (1976) (where a statute requires that notice of a dismissal hearing be sent to all parties within 10 days of the hearing, “there is compliance with the statute when the notice is deposited in the mail and reaches the teacher as effectively and speedily as one correctly addressed with adequate postage”).

Acoff also contends that the notice letter was insufficient because, he says, the notice letter failed to advise him of “ ‘the nature of the testimony of witnesses against him,’ ” quoting James v. Board of School Commissioners of Mobile County, 484 F.Supp. 705, 715 (S.D.Ala.1979). Acoff contends that James, a federal district court opinion that relied heavily upon Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970) (which Acoff also cites), mandated that the Board provide him with a statement of the matters to which the witnesses fisted in the appendix to the notice letter would testify; he further argues that the notice letter and its appendices did not fulfill that mandate.

As an initial matter, we note that the holding in Ferguson was based primarily upon its analogy of the standards of due process required under the United States Constitution with respect to student discipline to those applicable to termination of tenured teachers. 430 F.2d at 856 (citing Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir.1961)). More recent authority indicates that, when students or tenured teachers are given notice of a proposed disciplinary action that simply states the charges against them, and are also offered an opportunity to request a hearing to contest the charges against them and to attend that hearing, they are not constitutionally entitled to advance notice of witness statements. Nash v. Auburn Univ., 812 F.2d 655, 662-63 (11th Cir.1987) (distinguishing Dixon on that ground). Specifically, the Fifth Circuit has held that due process does not require that a tenured teacher receive both advance notice of witness names and their testimony and a right to a hearing to confront the witnesses against the teacher. “Any charged person is constitutionally entitled once to be told what he is charged with and on what evidence; none is entitled to be told so twice. To so require would be to impose on state administrative proceedings a higher standard than the Constitution requires for criminal trials.” Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 683 (5th Cir.1986); accord, Johanson v. Board of Educ. of Lincoln County, 256 Neb. 239, 250-52, 589 N.W.2d 815, 822-24 (1999) (a teacher was not denied due process by school district’s failure to provide him with an advance summary of the nature of the testimony against him).

We are not primarily concerned here with federal due process concerns, however; the pertinent question is whether the Tenure Commission properly determined that the notice letter complied with the requirements of § 16-24-9, AIa.Code 1975. Under § 16-24-37, AIa.Code 1975, the “direct appeal” statute invoked by Acoff to secure review by the Tenure Commission, the Tenure Commission’s function was to review the contentions made and the evidence submitted by Acoff and the Board and to determine “whether or not the [Board] has complied with the provisions of Section 16-24-6 or 16-24-9, whichever is involved.” Section 16-24-9 subjects a notice of proposed termination of a tenured teacher’s employment contract sent by an employing board of education to only four requirements as to form. Such a notice must (1) be in writing, (2) state “in detail” the reasons for the proposed cancellation, (3) disclose the place and time at which the teacher may appear to “answer” the notice (which time must be between 20 and 30 days after service of the notice by certified mail), and (4) state that, in order to contest the proposed termination, the teacher, no fewer than 5 days before the time at which the termination will be considered, must file a notice of his or her intention to contest the termination. There is no requirement in § 16-24-9 that a summary of each witness’s testimony be provided in a notice of a proposed termination; indeed, the notice requirements that the statute does specify are designed to inform a tenured teacher of the right to timely contest a proposed termination of that teacher’s employment, if desired, and to appear at a hearing at which he or she will have the right to attend and exercise rights of confrontation.

We conclude that the Tenure Commission’s affirmance of the termination of Acoff s employment on the basis that Acoff failed to properly request a hearing before the Board is necessarily based upon its implicit determination that the notice letter sent by the Board complied with § 16-24-9, and that the Tenure Commission’s decision was not against the overwhelming weight of the evidence so as to warrant reversal. Ex parte Alabama State Tenure Comm’n, 555 So.2d at 1073. Accordingly, we conclude that the circuit court erred in reaching a contrary conclusion and in requiring the Board to send a new notice of and to hold a hearing on the proposed termination of Acoffs employment. The judgment of the circuit court is therefore reversed, and the cause is remanded for the entry of a judgment denying the writ of mandamus. State Tenure Comm’n v. Jackson, — So.2d at-.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.

MURDOCK, J., concurs in the result.

      . The Tenure Commission was not a party in the circuit court.

      . In setting forth the evidence before the Tenure Commission tending to show Acoff’s actual notice of the proposed termination, it should not be inferred that proof of actual receipt of the notice required under § 16-24-9 to be sent by certified mail is necessary for a school board to terminate a tenured teacher’s employment contract. As we concluded in
        Williams v. State Dep’t of Revenue, 578 So.2d 1345 (Ala.Civ.App.1991), in construing an analogous statute requiring notice of assessment of a tax on controlled substances, "the language of the statute requires only that the notice be mailed to the last known address and requires no proof of actual receipt of the notice.” 578 So.2d at 1345.

      3. AIa.Code 1975, § 16-24-6, pertains to transfers of tenured teachers.


author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    S.H. v. STATE of Alabama.
    2020400.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      Neil Taylor, Jr., Russellville, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Judge.

S.H., a student at Phil Campbell High School in Franklin County, appeals from an order of the juvenile court adjudicating her as a child in need of supervision (“CHINS”) and placing her on probation. We affirm.

On December 6, 2002, Gary Williams, the truant officer of Franklin County, signed a verified complaint charging that

“[S.H.] has been tardy from Phil Campbell School, Franklin County on 10 different occasions, in violation of the Alabama School Compulsory Attendance Law (§ 16-28-3) of the Code of Alabama, against the peace and dignity of the State of Alabama.
“In the foregoing said child is in need of supervision, treatment, rehabilitation, care or the protection of the State.
“Charge: CHINS/Truancy 012-015-001(4).”

S.H. answered the complaint and entered a plea of “not guilty.” Following a bench trial, the court entered an order that states:

“The allegations in the petition ... are true beyond a reasonable doubt.
“Said child is hereby adjudged to be CHINS.
“Said child is placed on probation beginning 1/23/03. If the juvenile complies with the conditions set forth in this order, she will be considered for release at the end of the school year.
“[Listing 16 conditions of probation].”

I.

Initially, we must address Presiding Judge Yates’s dissent, which states that, because the juvenile court treated this truancy/CHINS proceeding “as a criminal matter,” the appeal should be transferred to the Court of Criminal Appeals. To the extent that the juvenile court did treat the proceeding as a criminal matter, that treatment was authorized- — in fact, mandated — by our statutes relating to the procedure for CHINS petitions in juvenile courts.

Section 12-15-1(4), Ala.Code 1975, defines a “child in need of supervision” as one who:

“a. Being subject to compulsory school attendance, is habitually truant from school.
“b. Disobeys the reasonable and lawful demands of the child’s parents, guardian, or other custodian and is beyond their control.
“e. Has committed an offense established by law but not classified as criminal or one applicable only to children.
“d. In any of the foregoing, is in need of care or rehabilitation.”

(Emphasis added.) Subsections (a) and (c) of § 12-15-1(4) contemplate the kind of proceeding that occurred in this case — one initiated by a complaint charging an “offense,” such as truancy, that is not classified as criminal or that is applicable only to children. The juvenile court applied a “beyond-a-reasonable-doubt” evidentiary standard for establishing the predicate “offense” because that standard is mandated by § 12-15-65(e), Ala.Code 1975. At a hearing on a CHINS petition, the State must first establish, by “proof beyond a reasonable doubt, based upon competent, material, and relevant evidence, that a child committed the acts by reason of which the child is alleged to be ... in need of supervision.” § 12-15-65(e) (emphasis added). If the juvenile court determines that the child committed the acts alleged, the juvenile court “may proceed immediately to hear evidence as to whether the child is in need of care or rehabilitation.” Id.

Once the predicate act or “offense” has been established by proof beyond a reasonable doubt, however, a “civil” evidentia-ry standard is applicable. The State must establish, by “clear and convincing evidence, competent, material, and relevant in nature, that the child is ... in need of care or rehabilitation as a ... child in need of supervision.” § 12 — 15—65(f), Ala.Code 1975 (emphasis added).

If the juvenile court finds that the State has established the first part of its case by proof beyond a reasonable doubt, and the second part of its case by clear and convincing evidence, then it may “proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case.” Id. Disposition of a CHINS proceeding is governed by § 12-15-71(c), Ala. Code 1975. That section provides, in pertinent part:

“(c) If a child is found to be ... in need of supervision, the court may make any of the following orders or dispositions for the child’s supervision, care, and rehabilitation:
“(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to the conditions and limitations the court may prescribe;
“(2) Place the child on -probation under conditions and limitations the court may prescribe;
“(3) Transfer legal custody to any of the following:
“(4) Make any other order as the court in its discretion shall deem to be for the welfare and best interests of the child....
“(5) Direct the parent or custodian of the child to perform such reasonable acts as are deemed necessary to promote the best interest of the child.”

(Emphasis added.)

Although some of the procedural aspects of this CHINS proceeding may have had the trappings of a “criminal” case, it is clear that the juvenile court was following the procedure mandated by our statutes and that this court, pursuant to Rule 28(A)(2), Ala. R. Juv. P., has subject-matter jurisdiction of the appeal. That rule provides:

“If the appeal provided in this subsection is taken from a final order, judgment, or decree in a case or proceeding arising out of the jurisdiction of the juvenile court over a child, as that term is defined in § 12-15-1(3), Ala.Code 1975, the appropriate appellate court for purposes of the appeal shall be (a) the Court of Criminal Appeals in proceedings in which a child is adjudicated delinquent and proceedings in which a motion seeking an order to transfer a child to the adult court for criminal prosecution is either granted or denied, and (b) the Court of Civil Appeals in any other case or proceeding.”

(Emphasis added.)

At trial, the evidence established that S.H. had been late to school on 10 occasions totaling 40 minutes. William R. Smith, the principal of Phil Campbell High School, explained that the morning tardy bell rings at 7:53 a.m. and that any student who arrives after that time is tardy. He testified that his records indicated the following late arrival times for S.H.:

September 9.7:56 September 26.7:56
September 13.7:55 November 1.7:57
September 17.8:00 November 8.7:55
September 19.8:04 November 14.7:57
September 25.7:55 November 15.7:55

The record contains portions of the Student Code of Conduct/Handbook (“the Handbook”) approved by the Franklin County Board of Education. Article 4 of the Handbook states that student misconduct is “grouped into three classes (Class I, Class II, and Class III), which range from the least to the most serious.” Article 4, § 1.05, categorizes “excessive tardiness and repeatedly reporting late to school or class” as a Class I violation. Article 4, § 2b. sets out the following “disciplinary actions” for “minor” or Class I violations:

“b. Secondary students in grades 7-12
“1) First Offense for grades 7-12
“In-school conference and parental contact when warranted. Special circumstances may warrant disciplinary action as outlined under subsequent offenses.
“2) Subsequent Offenses for grades 7-12
“In-school disciplinary action, such as probation, detention, completion of extra academic assignments, work assignments before or after school, in-school suspension, corporal punishment, or suspension at the discretion of the principal or his/her designated person(s). Special circumstances may warrant a recommendation to the School Board’s hearing officer for an alternative educational program apart from the normal setting.”

“Truancy” is defined at page 21 of the Handbook as “the habitual and unlawful absence from school.” Another section of the Handbook, entitled “Early Warning Program,” states:

“EARLY WARNING PROGRAM
(Grades K-12)
“The Alabama Compulsory School Attendance Law, Code of Alabama, Section 16-28-03 (1975) requires children between the ages of seven and sixteen to enroll and attend school. Additionally, the Code of Alabama, Section 16-28-12 (1975), as amended May 17, 1993, requires that any parent/guardian who enrolls a student in school be responsible for the child’s regular attendance in school and proper conduct there.
“... It is the parents and/or guardian’s responsibility to assure that any absence of the student is considered an ‘excused absence’ pursuant to the policy of the school system. If the parent or guardian fails to provide the necessary information to assure the absence is excused and it is recorded as unexcused, court intervention may result.
“To implement the requirements of the Code of Alabama, Section 16-28-03 et seq (1975) your school system, district attorney and juvenile court have implemented an Early Warning Program. Please be advised that all students in grades kindergarten through twelve are subject to the provisions of this program.
“The following procedures for handling truancy and/or conduct problems shall be administered throughout the Franklin County School System.
“1. First truancy per semester (unexcused absence): Teacher shall caution student about truancy and subsequent action to be taken by the school and courts should there be other unexcused absences.
“2. Second truancy per semester (unexcused absence): The school authorities shall notify the parent of the date that the student was truant. Students who have consecutive unexcused absences, which make their total unexcused absences three or more, will receive a letter from the principal and a ‘Notice to Appear’ in the Early-Warning Program at the same time.
“3. Third truancy per semester (unexcused absence):
“a. The parenVguardian or person within control of the said child shall participate in the Early Warning Program provided by the juvenile court.
“b. Attendance at this conference shall be mandatory.
“c. Failure to appear at the Early Warning Program shall result in the filing of a complaint/petition against the child and/or parent/guardian.
“d. ANY UNEXCUSED ABSENCE BY THE STUDENT FOLLOWING THE ATTENDANCE OF THE STUDENT AND PARENT/GUARDIAN AT THE EARLY WARNING PROGRAM WILL RESULT IN A PETITION BEING FILED AGAINST THE CHILD ALLEGING TRUANCY AND/OR A COMPLAINT AGAINST THE PARENT/GUARDIAN REQUESTING CRIMINAL SANCTIONS.
“4. Students and parents who accumulate 5 unexcused tardies per semester may also be required to attend the Early Warning Program.
“5. Students and parents who accumulate ‘excessive questionable’ excused absences may also be required to attend the Early Warning Program.”

(Capitalization original; emphasis added.)

At trial, Truant Officer Gary Williams explained the Franklin County School Board’s policy with respect to the Early Warning Program. Williams stated that he receives a letter from the school when a student has been tardy five times in a semester; that he notifies the student and parent of the school board’s requirement to attend the juvenile court Early Warning Program; that he monitors attendance at the Early Warning Program; and that, if the student is tardy one more time after participating in the Early Warning Program, Williams files a CHINS petition in the juvenile court.

The school principal, William Smith, testified that he followed the Franklin County School Board’s policy by sending S.H. a letter and by notifying the county truant officer after S.H. had accumulated five unexcused tardies to school. He further testified that, although the school board’s policy would allow for the filing of a CHINS petition as soon as a student was tardy again after having completed the Early Warning Program, he waited until S.H. had accumulated five more tardies before notifying the truant officer. Smith testified that, before he notified the truant officer that S.H. had been tardy the first five times, he had sent S.H. to Phil Campbell High School’s “Saturday School” as a disciplinary measure after the first three times she was tardy.

On cross-examination, Smith conceded that he had neither sought an explanation from S.H. as to the reason for her tardiness nor attempted to contact S.H.’s father to discuss the matter. When he was asked whether he had had an “in-school conference” with S.H. or had made “parental contact” with S.H.’s father concerning her tardiness, as mentioned in Article 4, § 2b. of the Handbook, Smith replied that he had not undertaken either action. He said that § 2b. did not require those actions unless they were “warranted” and, he said, he did not think the actions were warranted in this case.

S.H. admitted that she was late to school on the occasions listed by the principal. She explained that she lives with her father, who drives her to school every day. She said that her father awakened her in the morning, but she was not always ready for school on time because, on some days, she experienced pains that made it difficult for her to move quickly. She stated that her physician had diagnosed her with enlarged ovaries and an infected uterus and had prescribed medication for her. She said the medication had helped; she had not been tardy since she had begun taking the medication. She testified that, before the CHINS petition was filed, no one at school had asked her why she was tardy or cautioned her about the consequences of repeated tardiness.

On appeal, S.H. does not argue that the evidence was insufficient to support a finding that she was an “habitual truant” or a CHINS. She presents four issues: (1) that she was denied certain statutory rights and due-process rights when the school principal submitted her name to the truant officer for attendance at the Early Warning Program after she had accumulated five tardies; (2) that the principal failed to exercise his independent judgment on the issue of whether she was an habitual truant before he initiated proceedings resulting in the filing of the CHINS petition; (3) that the juvenile court erroneously excluded evidence tending to show that similarly situated students at another Franklin County high school were not treated as CHINS for being tardy five or more times per semester — evidence that, she claims, establishes that she was denied the equal protection of the law; and (4) that she, being over the age of 16 and not required to attend school, is not subject to the truancy laws contained in § 16-28-1 et seq., AIa.Code 1975.

II.

S.H. argues that the school principal failed to investigate the cause of her tardiness before he set in motion the events that led to the filing of the CHINS petition. She claims that this failure to investigate violated three provisions of the Alabama Compulsory School Attendance Law (§§ 16 — 28—12(b); 16-28-13; and 16-28-16(a)). She also maintains that the school principal denied her the due process of the law that, she says, is guaranteed by the progressive-discipline policies of the Handbook.

We hold that none of the three statutes that S.H. relies on requires a school principal to investigate the cause of a student’s tardiness. Section 16-28-12(b) requires that local boards of education adopt written policies for student conduct, including policies concerning compliance with the compulsory attendance laws. It further requires that local school superintendents provide parents and custodians of enrolled students with a copy of the written policies. It states no requirement with regard to a school principal’s “duty to investigate.”

Section 16-28-13 states that a parent will not be convicted under the Alabama Compulsory School Attendance Law, § 16-28-1 et seq., if the parent “can establish to the reasonable satisfaction of the court” any of five listed defenses; the fourth of those defense is:

“(4) That there exists a good cause or valid excuse for such absence....
“A good cause of valid excuse, as used in this section, exists when on account of sickness or other condition attendance was impossible or entirely inadvisable or impracticable or when, by virtue of the extraordinary circumstances, the absence is generally recognized as excusable.”

Section 16-28-13 also states no requirement that a school principal investigate the cause of a student’s tardiness.

Section 16-28-16(a) places a duty on the [county or city] attendance officer — not the school principal — “to investigate all cases of nonenrollment and of nonattendance.”

We also hold that the school principal did not violate S.H.’s right to due process by failing to follow some of the progressive-discipline policies outlined in the Handbook before submitting her name to the truant officer for inclusion in the Early Warning Program. S.H. argues that the principal had a duty, pursuant to Article 4, § 2b.(l) (recommending an “[Tin-school conference and parental contact when warranted”) to inquire why she was tardy before sending her name to the truant officer. The principal, when asked why he did not have a conference with S.H. or contact her parent to discuss S.H.’s repeated lateness to school, answered that he did not think those actions were warranted.

Initially, we note that Article 4, § 2b.(l) applies only to a “first offense.” In light of another section of the Handbook that places on the student the obligation of providing a timely excuse for all absences, rather than placing on the principal the responsibility of inquiring as to the existence of an excuse, we cannot hold that the principal denied S.H. due process by failing to inquire of her or her parent the reason for her tardiness on the first occasion.

Under the category of “Absences and Excuses” in the Handbook, subsection D, entitled “Excuses,” states:

“It will be the student’s responsibility to provide the designated school official with the proper data to verify that an absence should be excused. THIS MUST BE DONE NO LATER THAN TWO (2) DAYS AFTER RETURNING TO SCHOOL.
“NOTE: No written excuse will be accepted after two (2) school days following the last date of absence unless there are extenuating circumstances beyond the student’s control that are approved by the principal.”

(Capitalization and emphasis original.) The juvenile court was authorized to accept the principal’s conclusion that the measures listed in Article 4, § 2b.(l) of the Handbook were not warranted the first or second time that S.H. was tardy. For the third time that S.H. was tardy, the principal testified that he followed the policy set out at Article 4, § 2b.(2) (recommending “[i]n-school disciplinary action, such as ... detention”) by sending her to “Saturday School.”

III.

In Dothan City Board of Education v. V.M.H., 660 So.2d 1328 (Ala.Civ.App.1995), this court held that a school board denied a student due process of the law when it failed to exercise its independent judgment concerning whether an air rifle in the student’s vehicle, which was locked and parked on school grounds, was an “ ‘item which may conceivably [be] used as a weapon.’ ” 660 So.2d at 1328. Citing V.M.H., S.H. argues that the school principal, by neglecting to inquire about or investigate the reason for her tardiness, failed to exercise his independent judgment regarding whether she was an “habitual truant” within the meaning of the Alabama Compulsory School Attendance Law, § 16-28-1 et seq., Ala.Code 1975. S.H. did not present this independent-judgment argument to the juvenile court; she raises it for the first time on appeal, and, therefore, we do not consider it. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

IV.

S.H. argues that the juvenile court erred by disallowing evidence that, she claims, would have established that she was denied the equal protection of the laws. S.H. contends that the truancy laws were selectively enforced against her because, she says, similarly situated students at another Franklin County high school were not treated as CHINS when they had accumulated five unexcused tardies per semester.

At trial, S.H. attempted to present evidence that students at Red Bay High School had their tardy slates “wiped clean” at the beginning of each nine-week grading period, presumably implying that Red Bay students could accumulate five or more tardies per semester without being reported to the truant officer. When S.H.’s lawyer questioned the Phil Campbell High School principal and the Franklin County truant officer about the tardy policy at Red Bay High School, the prosecutor objected and the juvenile court sustained the objection. The principal testified that he was following the school board’s policy; he said that if other principals were not treating tardiness in the same way he was, they were violating the school board’s policy. The truant officer stated that he followed the same procedure for all students in the county regardless of which school they attended.

The Court of Criminal Appeals has set out the elements of a claim alleging selective prosecution:

“ ‘ “[AJlthough no clear standards exist for quantum or type of proof sufficient to illustrate discriminatory enforcement of a statute ..., three elements must generally be proved: selectivity in enforcement; selectivity that is intentional; and selectivity based upon some invidious or unjustifiable standard such as race, religion, or other arbitrary classification. It is insufficient merely to show that other violators have not been prosecuted, that there has been laxity in enforcement, or that there has been conscious exercise of some selectivity in enforcement.”
‘DeShazo v. City of Huntsville, 416 So.2d 1100, 1103 (Ala.Cr.App.1982). See also Carroll v. State, 599 So.2d 1243, 1244-45 (Ala.Cr.App.1992).’ ”

City of Montgomery v. Norman, 816 So.2d 72, 79 (Ala.Crim.App.1999) (quoting Facion v. State, 627 So.2d 1144, 1145 (Ala.Crim.App.1993)). We conclude that, even if S.H. had been allowed to present the evidence she sought, she would have fallen short of establishing selective prosecution because she did not allege that the selectivity was intentional and that it was based on an impermissible standard.

V.

S.H. contends that she is not subject to the mandatory school-attendance requirement because, being over the age of 16 years, she is not required to enroll in school. That argument was rejected in State v. L.N.A., 811 So.2d 637 (Ala.Crim. App.2001). There the Court of Criminal Appeals held:

“Section 16-28-3, Ala.Code 1975, specifies which children are required by law to attend school. In contrast, § 16-28-16(b), Ala.Code 1975, provides that, with certain listed exceptions, each child who is enrolled in a public school, whether or not that child is required by law to enroll, is subject to the attendance and truancy provisions set forth in §§ 16-28-1 through -24, Ala.Code 1975. Therefore, contrary to the juvenile court’s finding, the amendment to § 16-28-16, Ala.Code 1975, did not amend or extend the provisions of § 16-28-3, Ala. Code 1975.”

811 So.2d at 643.

S.H. argues that § 16-28-2.1, Ala. Code 1975, undercuts the holding in L.N.A., supra. We disagree. That section provides, in pertinent part:

“Parents shall be held accountable in accordance with Sections 16-28-12 and 16-28-7, for the failure of the child who is of compulsory attendance age to attend either public, private or church-school.”

Section 16-28-2.1 deals only with which party is accountable, “for the failure of [a] child who is of compulsory attendance age to attend” school. The statute makes it clear that a parent is accountable for his or her child’s truancy only if the child is “of compulsory attendance age,” that is, if the child has not reached the age of 16. Conversely, if a child has reached the age of 16 when the alleged truancy occurs, then only the child is accountable. In the present case, S.H. was over the age of 16; thus, the petition in juvenile court correctly named only her, and not her father, as the subject of the proceeding.

The judgment of the juvenile court is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

MURDOCK, J., concurs in the result.

YATES, P.J., and THOMPSON, J., dissent.

YATES, Presiding Judge,

dissenting.

The juvenile court treated this truancy/child-in-need-of-supervision (“CHINS”) proceeding as a criminal matter; therefore, this appeal should have been filed in the Court of Criminal Appeals so that S.H. could be afforded the constitutional and statutory rights to which she is entitled. Compare State v. K.C.L., 823 So.2d 1287 (Ala.Crim.App.2001)(appeal in a proceeding on a truancy/CHINS petition). Accordingly, I would transfer the appeal to the Court of Criminal Appeals.


author: THOMPSON, Judge.

text:
    Joey K. WILKERSON v. Betsy Diane Waldrop WILKERSON.
    2020467.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      James D. Hamlett, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

Joey K. Wilkerson (“the father”) and Betsy Diane Waldrop Wilkerson (“the mother”) were divorced by a 1995 judgment of the trial court; one child was born of the parties’ marriage. On July 10, 2001, the trial court modified the divorce judgment and ordered the father to pay $450 per month in child support.

On November 15, 2001, the father, alleging a material change in circumstances, filed a petition seeking a modification of the trial court’s July 10, 2001, child-support award. The mother answered. The State of Alabama intervened and filed, on behalf of the mother, a second answer and a petition for contempt alleging that the husband was $496.65 in arrears on his child-support obligation as of September 11, 2001.

Following an ore tenus hearing on May 14, 2002, the trial court denied the father’s petition to modify, finding that there “had not been a sufficient change in circumstances to warrant a modification” of child support. On June 12, 2002, the father filed a postjudgment motion that was subsequently denied by the trial court. The father appealed, and on November 26, 2002, this court dismissed the appeal as being from a nonfinal judgment because the trial court had failed to adjudicate the petition for contempt.

On March 6, 2003, the trial court entered four separate orders; one of the orders denied the father’s petition to modify, and a second order denied his post-judgment motion. The trial court entered a third order finding that the father was in contempt at the time of the May 14, 2002, hearing for failing to pay child support and setting a hearing on the matter for May 7, 2003, to determine a payment schedule to satisfy the child-support arrearage. The remaining order of the trial court continued the case for a hearing on the petitions for contempt and modification. On February 27, 2003, the father filed a second notice of appeal. We note that “[a] notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.” Rule 4(a)(4), Ala. R.App. P.

The State of Alabama filed in this court a motion to dismiss the appeal; in that motion, the State argued that the March 6, 2003, judgment was not final. Therefore, we must initially determine whether the orders entered by the trial court on March 6, 2003, constituted a final judgment so as to support an appeal.

A final judgment is one “that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). See also McCollough v. Bell, 611 So.2d 383, 385 (Ala.Civ.App.1992)(“Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.”). “A final judgment is one that completely adjudicates all matters in controversy between the parties.” Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001)(empha-sis added). It is well settled that “ ‘[appellate review in a piecemeal fashion is not favored.’ ” Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999)(quoting Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996), overruled on other grounds, Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000)). The only exception to the rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See generally Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000).

In the instant case, the trial court did not certify its March 6, 2003, judgment as final pursuant to Rule 54(b). The trial court’s March 6, 2003, judgment found that the husband was in contempt but set the matter for a hearing to determine a payment schedule for the child-support ar-rearage; the judgment did not state the amount of arrearage that the father owes the mother. Thus, not all of the rights and liabilities of the parties were determined and not all of the issues were fully adjudicated. See Bean v. Craig, supra. We conclude that the trial court’s March 6, 2003, judgment was nonfinal and will not support the father’s appeal. This court must dismiss an appeal from a nonfinal judgment. Stanford v. Feige, 816 So.2d 501 (Ala.Civ.App.2001).

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . The second notice of appeal indicates that that appeal is taken from a January 16, 2003, judgment; however, that judgment is not in the record.


author: CRAWLEY, Judge.

text:
    Jesse WHISENANT v. Raymond Dooley WHISENANT.
    2020506.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Judge.

Jesse Whisenant and Raymond Dooley Whisenant inherited real property from their father. Raymond filed a petition to sell the real property for division, pursuant to § 35-6-20 et seq., Ala.Code 1975.

Jesse filed an answer and, more than 10 days before the hearing on Raymond’s petition, filed a motion to purchase Raymond’s interest in the property based on an appraised value of $95,000.

After conducting a hearing, at which both Jesse and Raymond testified they wanted a private sale, the trial court, without following the procedural framework set out in §§ 35-6-100 through -104, Ala. Code 1975 (the “Act”), denied Jesse’s motion to purchase Raymond’s interest in the property and ordered a public sale. Jesse appeals.

Raymond filed a motion, pursuant to Rule 4(a)(1), Ala. R.App. P., to dismiss the appeal on the ground that the trial court’s order directing a sale was not a final order. That motion is- denied. See Holman v. Bane, 698 So.2d 117, 120 (Ala.1997) (“either the order directing the sale for division or the order confirming the sale may be considered a final judgment for purposes of appeal”).

The Act, entitled “Purchase of Interest of Joint Owner Filing for Partition,” provides, in pertinent part:

“Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

Section 35-6-100, Ala.Code 1975 (emphasis added).

The Act makes it mandatory that the court provide for the purchase by a joint owner or a tenant in common. Prince v. Hunter, 388 So.2d 546 (Ala.1980), and Jolly v. Knopf, 463 So.2d 150 (Ala.1985).

The judgment is reversed, and the case is remanded to the trial court to proceed according to the Act.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ, concur.

      . This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.


author: YATES, Presiding Judge.

text:
    Donald Ray PERINE v. Yvonne KENNEDY, individually, and in her capacity as president of Bishop State Community College.
    2011224.
    Court of Civil Appeals of Alabama.
    June 27, 2003.

      Henry H. Caddell of Thiry & Caddell, Mobile, for appellant.
    Willie J. Huntley, Jr., of The Huntley Firm, P.C., Mobile, for appellee.
   YATES, Presiding Judge.

These parties have previously been before this court. See Perine v. Kennedy, 830 So.2d 760 (Ala.Civ.App.2002) (“Perine I”). We note the following facts from Perine P.

“[Donald Ray Perine] was employed as a nine-month tenured chemistry instructor at [Bishop State Community College (‘the College’)]. Perine had in the past contracted with the College to teach classes during the summer semester; he contracted with the College to teach chemistry during the 2000 summer semester.
“Perine had been pursuing his Ph.D. in chemistry from Middle Tennessee State University since the summer of 1999. Perine was required to complete a minimum of six hours of course work during the summer semester in order to remain in the doctoral program. Perine stated that he had made arrangements both to teach his chemistry class at the College and to attend Middle Tennessee State University during the summer of 2000. Perine contends that he had informed his supervisor at the College, Ruth Stutts Moseley, of these arrangements and that the arrangements were approved. The College denies that Pe-riné had approval to be absent from his teaching duties to attend Middle Tennessee State University.
“On August 1, 2000, Perine received a letter from Dr. [Yvonne] Kennedy informing him that the College’s records indicated that he had been absent from his employment without approval since July 10, 2000. Dr. Kennedy informed Perine that the following State Board of Education policy regarding ‘Abandonment of Position’ was applicable to his employment status: ‘Any employee who is absent from work for three (3) consecutive workdays without approval shall be considered to have abandoned the position and to have resigned from the employing institution.’ Dr. Kennedy informed Perine that the College considered him to have abandoned his position as chemistry instructor and to have resigned from his employment with the College, effective July 13, 2000. Perine corresponded with Dr. Kennedy, demanding that his dismissal, to be effective, must be accomplished in accordance with the standards and procedures set forth in the Fair Dismissal Act [, 36-26-100 et seq., Ala.Code 1975], Perine was not afforded the procedures set forth in the Fair Dismissal Act.”

Perine I, 830 So.2d at 761-62.

Perine sued Dr. Kennedy, individually and in her capacity as president of Bishop State Community College (“the College”), seeking a declaratory judgment that he had been terminated from his employment in violation of the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975. Pe-rine also sought injunctive relief directing Dr. Kennedy to reinstate him to his employment with the College with back pay and interest and to further enjoin Dr. Kennedy from terminating his employment absent compliance with the procedures and standards set forth in the Fair Dismissal Act. Perine I, supra.

The trial court denied Perine’s requests for injunctive relief. Thereafter, he moved for a summary judgment, arguing that the Fair Dismissal Act provided the only procedure under which his employment could be terminated and seeking reinstatement to his employment with back pay and interest. The College responded to Perine’s motion and also moved for a summary judgment, arguing that § 2.13 of the State Board of Education’s Revised Hearing Procedure is applicable to Perine and that Perine is not entitled to proceed under the Fair Dismissal Act because, it asserted, he resigned his employment with the College. After the trial court conducted a hearing on the parties’ summary-judgment motions, Perine submitted to the court the additional authority of Young v. McLeod, 841 So.2d 245 (Ala.Civ.App.2001), and argued that pursuant to the decision in Young he was entitled to the same relief under the Revised Hearing Procedure that he was entitled to under the Fair Dismissal Act. The trial court denied Perine’s summary-judgment motion and entered a summary judgment in favor of the College. Perine I.

This court held on appeal that the Fair Dismissal Act was not applicable to Perine, but, rather, that the Revised Hearing Procedure applied to Perine and that he was entitled to notice and a hearing pursuant to the Revised Hearing Procedure. Pe-rine I.

Following remand, Perine, on April 23, 2002, moved the trial court to enter an order consistent with this court’s judgment providing that he be afforded his due-process rights pursuant to Section 2.13 of the Revised Hearing Procedure and that he be compensated up to the date of his due-process hearing with his full salary and benefits, plus interest and costs.

Subsequent to this court’s decision in Perine I, and after Perine had filed his motion for an order consistent with that judgment on remand, an amended version of § 36-26-100, Ala.Code 1975, a part of the Fair Dismissal Act, became effective on April 26, 2002; the amended version of § 36-26-100 expressly provides that “full-time instructors as defined by the State Board of Education” are subject to the Fair Dismissal Act. Because of the amendment to the Fair Dismissal Act, the parties agreed that any attempt to terminate Pe-rine’s employment should now proceed under the Fair Dismissal Act. Pursuant to the provisions of the Fair Dismissal Act, Dr. Kennedy, on May 30, 2002, notified Perine by letter of the following:

“This is to notify you that it is my intention to confirm your earlier resignation/termination of employment with Bishop State Community College, which was effective July 13, 2000. In the event that I decide to confirm your earlier resignation/termination of employment, you will receive another letter from me, specifying that I will be taking such action.
“Your termination is based upon your unapproved absence from work for more than three (3) consecutive workdays, as I stated in my letter to you, dated August 1, 2000, a copy of which is enclosed. The official records of the College indicate that you were absent from work, without approval, from July 10, 2000, until August 1, 2000. Due to your unapproved absences, the following State Board of Education policy, regarding Abandonment of Position, is applicable to your employment:
“Policy # 618.01, Section 1.2 — Any employee who is absent from work for three (3) consecutive workdays without approval shall be considered to have abandoned the position and to have resigned from the employing institution.
“Under the rules of the Alabama State Board of Education, you are entitled, subject to the terms and conditions of the Fair Dismissal Act, to appeal my decision should I determine that your termination ... will be imposed or confirmed. If you intend to appeal the termination, if imposed or confirmed, you must notify me in writing within fifteen (15) days of your receipt of this letter, of your intent to contest the termination, if imposed or confirmed. If you do not intend to appeal the termination, [if] imposed or confirmed, you need not respond to this letter.”

A pretermination hearing regarding the termination of Perine’s employment was scheduled for June 10, 2002.

On June 3, 2002, Perine notified Dr. Kennedy that he was contesting the notice of termination he received by letter dated May 30, 2002. On June 7, 2002, Perine amended his motion for an order consistent with the judgment in Perine I. He notified the trial court of the recent amendment to § 36-26-100, Ala.Code 1975, and he stated that the trial court’s order should reflect that Perine, as a full-time nonprobationary instructor, is subject to the Fair Dismissal Act; that Dr. Kennedy had provided notice of his proposed termination under the Fair Dismissal Act; that he had contested the proposed termination and that a pretermination hearing had been scheduled; and that he was entitled to back pay and benefits, plus interest, through such date as the charges against him were heard and determined pursuant to the Fair Dismissal Act.

Following the pretermination hearing, Dr. Kennedy notified Perine by letter on June 27, 2002, that his proposed termination had been confirmed. Perine notified Dr. Kennedy by letter on July 1, 2002, that he intended to appeal his termination pursuant to the Fair Dismissal Act. On July 2, 2002, Perine notified the court that his employment had been terminated and that he intended to appeal the termination pursuant to the Fair Dismissal Act. Perine stated that Dr. Kennedy and the College were following the procedures set forth in the Fair Dismissal Act with regard to his termination and that the trial court did not have jurisdiction to hear the evidence regarding his termination because that process is governed by the Fair Dismissal Act. Perine further contended that he is entitled to receive back pay from July 13, 2000 (the date he was originally deemed to have abandoned his position), through June 27, 2002 (the date he was notified that his termination had been confirmed following a hearing).- On August 5, 2002, Perine, pursuant to § 36-26-105 of the Fair Dismissal Act, corresponded with counsel for Dr. Kennedy and the College, seeking to move forward with the selection of a three-member panel to hear the appeal of his termination.

The trial court scheduled a hearing on Perine’s motion to enter an order consistent with this court’s judgment in Perine I for July 24, 2002. Perine argued at this hearing that the process regarding his termination is governed by the Fair Dismissal Act and that the court did not have jurisdiction to conduct an evidentiary hearing regarding his termination. He further argued that he was entitled to back pay from July 13, 2000, until June 27, 2002. Dr. Kennedy’s counsel confirmed that the decision was made by Dr. Kennedy and the College to proceed with Perine’s termination under the procedures set forth in the Fair Dismissal Act. The trial court denied Perine’s motion on July 29, 2002; the court based its decision to deny the motion on its interpretation of this court’s decision in Perine I. The trial court concluded that pursuant to Perine I, it was required to conduct an evidentiary hearing to determine whether Perine’s employment should be terminated rather than remanding the matter to the administrative process. The trial court set the matter for a final hearing on August 12, 2002.

Following a hearing on August 12, 2002, the trial court, on September 10, 2002, entered an order reiterating that it interpreted Perine I to require a bench trial on the issue of Perine’s termination; determining that Perine had failed to gain approval for his absences; determining that his unapproved absences resulted in his resignation pursuant to § 2.13 of the Revised Hearing Procedure; and denying Perine’s request for back pay. Perine appeals.

Perine argues that the Fair Dismissal Act applies to his termination and that the trial court erred in conducting an evidentiary hearing regarding his termination, rather than remanding the matter to the administrative process. As stated above, the Legislature amended § 36-26-100, Ala.Code 1975, to include that “full-time instructors as defined by the State Board of Education” are subject to the Fair Dismissal Act. The act amending § 36-26-100 of the Fair Dismissal Act states that the “act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming, law.” Act No. 2002-508, Section 2, Ala. Acts 2002. The amended act became effective on April 26, 2002 — after Perine had filed his motion on remand, but before the trial court had conducted a hearing or entered its order on that motion. Because the amendatory act states that it shall become effective immediately, we conclude that the Fair Dismissal Act applied to Perine and that he is entitled to have his termination process proceed in accordance with the procedures set forth in the Fair Dismissal Act. Accordingly, we conclude that the trial court erred in conducting an evidentiary hearing on Perine’s termination rather than remanding the matter to the administrative process provided for by the Fair Dismissal Act.

Perine next argues that, because the Fair Dismissal Act was applicable to him, he was entitled to receive back pay until such time as his proposed termination was “heard and determined” by the employing entity. We agree. There are six necessary steps for termination under the Fair Dismissal Act:

“ ‘Step 1 — The Board’s letter notifying the employee of the proposed termination;
“ ‘Step 2 — The employee’s letter of intention to contest the proposed termination;
“ ‘Step 3' — The Board’s decision to dismiss the employee;
“ ‘Step 4 — The employee’s request for an appeal and hearing;
“ ‘Step 5 — The selection of an employee review panel; and
“ ‘Step 6 — The hearing and final disposition by the review panel.’ ”

Ward v. Wortham, 706 So.2d, 1238, 1239 (Ala.Civ.App.1997) (quoting Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987)). An employee is entitled to be compensated by the employing entity until the employing entity has conducted a pretermination hearing and made a decision to terminate the employee. Ex parte Birmingham Bd. of Educ., 601 So.2d 93 (Ala.1992); Ward, supra; and Allen v. Bessemer State Technical College, 703 So.2d 383 (Ala.Civ.App.1997). However, an employee would be entitled to back pay from the time that the decision to terminate is made by the employing entity until the completion of the review process, if the review panel determines that the initial decision to terminate the employee by the employing entity is erroneous. Ex parte Birmingham Bd. of Educ., supra; Ward, supra.

Dr. Kennedy, pursuant to the Fair Dismissal Act, notified Perine by letter dated May 30, 2002, that she intended to confirm his earlier termination/resignation which, she claimed, was effective July 13, 2000. Perine notified Dr. Kennedy of his intention to contest the proposed termination of his employment. A pretermination hearing was held and Perine’s termination was confirmed on June 27, 2002. Accordingly, Perine is entitled to be reimbursed for all compensation he was entitled to receive, plus interest, from July 13, 2000, until his termination was “heard and determined” on June 27, 2002.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

PITTMAN, J., concurs in the result.

      . This court did not address the issue whether Perine was entitled to back pay and interest pursuant to the Revised Hearing Procedure.

      . Dr. Kennedy and the College changed their position during this hearing regarding the applicability of the Fair Dismissal Act to Pe-rine’s termination. They took the position at the hearing that the Fair Dismissal Act did not apply to Perine's proposed termination.

      . Citing Bolton v. Mobile County Board of School Commissioners, 514 So.2d 820 (Ala.1987), Perine also argues on appeal that, because Dr. Kennedy and the College had abandoned the administrative process set forth by the Fair Dismissal Act, after proceeding with his termination under the Act, the matter should be concluded in his favor and he is entitled to reinstatement to his position. This argument was not presented to the trial court; therefore, we will not address it on appeal. See Brock & Blevins, Inc. v. Cagle, 775 So.2d 824 (Ala.Civ.App.1999). Likewise, this court does not reach the issue of what effect the failure of a hearing review panel to hear Perine’s appeal within 60 days of the College’s decision, as required by § 36-26-106, Ala.Code 1975, has on this matter, because that issue was not presented to the trial court for consideration.