author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Kathleen Mabe SALVANT v. Joann HOWELL and Prudential Cooper & Company, Inc.
    2010739.
    Court of Civil Appeals of Alabama.
    Jan. 24, 2003.

      Robert G. Jackson, Jr., and Robin B. Taylor of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellant.
   CRAWLEY, Judge.

Kathleen Mabe Salvant (“the tenant”) leased a house in Mobile from Joann Howell (“the landlord”). Prudential Cooper & Company, Inc., managed the property for the landlord. The lease required the tenant to pay a $1,000 damage deposit. At the end of the lease, Prudential inspected the house and determined that the tenant had caused less than $1,000 damage to the house and that she was entitled to a partial refund of her damage deposit. The landlord disagreed; she claimed that the tenant had caused damage to the house in excess of the damage deposit.

On October 31, 2000, Prudential filed a complaint for interpleader in the district court, naming as defendants the landlord and the tenant and seeking to pay into court the $1,000 damage deposit and to be discharged of any further liability for the funds. On December 14, 2000, the landlord counterclaimed against Prudential, alleging that it had mismanaged the property. The landlord also cross-claimed against the tenant, alleging that she had caused excessive damage to the property and demanding judgment in the amount of $1,000. The tenant answered, denying that she had caused any damage to the leased premises beyond normal wear and tear.

The case was tried on May 30, 2001. The tenant did not appear for trial. After hearing the evidence, the district court ordered the interpleaded funds to be disbursed to the landlord, dismissed the landlord’s counterclaim against Prudential, and entered a judgment for $2,551 in favor of the landlord on her cross-claim against the tenant.

The date on which the tenant received written notice by mail pursuant to Rule 77(d), Ala. R. Civ. P., that a judgment had been entered against her is unclear. It is undisputed, however, that the tenant had actual (oral) notice of the judgment on June 11. The last day to appeal the judgment was June 13. The tenant sent the district court a certified check and a notice of appeal by facsimile transmission. The case action summary sheet reflects that the district court received the tenant’s pro se “appeal application” on June 13 and returned the “application” to her on June 14.

The tenant retained an attorney, who, on June 19, 2001, wrote a letter to the district court judge and filed a motion for relief from the May 30 judgment pursuant to Rule 60, Ala. R. Civ. P. The motion alleged that the tenant, who was living in Delaware, had decided not to come to Alabama for the trial of the case because she had been told by Prudential’s attorney that only her $1,000 damage deposit was at stake and, therefore, she concluded, her travel costs would outweigh the amount at issue; that she contacted Prudential’s attorney after the trial and the attorney informed her that a judgment of $2,551 over and above her damage deposit had been entered against her; that, acting pro se, she attempted to perfect an appeal to the circuit court by faxing a notice of appeal and sending a certified check to the district court clerk; that the clerk informed her that it could not accept a notice of appeal by facsimile transmission and that her check was for the wrong amount; and that, based on her good-faith effort to appeal, she was entitled to relief from the judgment.

On June 21, the district court granted the tenant’s Rule 60 motion, vacated its May 30 judgment, and reentered another judgment; the June 21 judgment was virtually identical to the May 30 judgment. On June 22, the tenant filed a notice of appeal to the circuit court from the district court’s June 21 judgment. On November 6, the landlord moved to dismiss the tenant’s appeal as untimely. On November 8 and December 7, the tenant filed written responses to the landlord’s motion to dismiss the appeal. She argued that the landlord was precluded from raising the propriety of the Rule 60 relief because the landlord had failed to appeal from the district court’s order granting the tenant’s Rule 60 motion. She also argued that the district court did not abuse its discretion in vacating the May 30 judgment.

On March 13, 2002, the circuit court granted the landlord’s motion and dismissed the tenant’s appeal. The tenant filed a “motion to reconsider” the dismissal, attaching, for the first time, an affidavit averring the facts pertinent to her position. The circuit court denied the tenant’s postjudgment motion on April 25, 2002. The tenant appeals. We affirm.

The circuit court’s order dismissing the tenant’s appeal states, in pertinent part:

“Rule 60 was not intended to be used to allow litigants who are confused about their rights or are unfamiliar with the statutes and Rules of Civil Procedure to be excused from them because they come up with a plethora of unsworn reasons as to why they could not adhere to the 14-day appeal time that is required under Code of Alabama 1975, § 12-12-70(a). To allow litigants to step forward when they fail to meet a deadline after admitting they knew they were being sued, and chose not to be in Court .at trial, would create a chaotic system. This would force a trial judge into a position to listen to every excuse, much like a school principal hears excuses from children who are late to school, and determine which are ‘good enough’ to pass Rule 60 muster, and then to set aside a judgment and enter a ‘new judgment’ allowing the litigant to appeal.
“The better rule, in cases such as this, is to strictly enforce the 14-day appeal time. Thus, the Motion to Dismiss Appeal is GRANTED.”

Discussion

Initially, we note that the district court clerk correctly refused to accept the tenant’s facsimile notice of appeal. “The Alabama rules of court do not presently specifically authorize any ‘filings,’ either of notices of appeal or any other documents, by facsimile transmissions.” Ex parte Tuck, 622 So.2d 929, 930 (Ala.1993).

The district court had no authority to grant the tenant’s Rule 60 motion because the tenant alleged no ground for relief under that rule. Rule 60(b) provides, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

The fact that the tenant was unaware that a judgment had been entered against her until June 11 does not constitute “mistake, inadvertence, surprise, or excusable neglect” for purposes of Rule 60(b)(1). Despite — or perhaps because of — the fact that she was not represented by counsel, the tenant bore the responsibility for tracking the progress of the action to which' she was a party.

“[L]ack of counsel is not a valid grounds for setting aside a judgment under Rule 60(b). Porter v. Mobile Pulley & Machine Works, 507 So.2d 529, 530 (Ala.Civ.App.1987).... ‘A party remains under a duty to take the legal steps necessary to protect [her] own interests.’ McDaniel [v. McDaniel, 694 So.2d 34, 36 (Ala.Civ.App.1997)].”

State ex rel. Croson v. Croson, 724 So.2d 36, 38 (Ala.Civ.App.1998). See also Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 285 n. 5 (Ala.1998); Briscoe v. Briscoe, 600 So.2d 290, 292 (Ala.Civ.App.1992). “ ‘It is well settled that a party, even one acting pro se, is responsible for keeping track of his own case and knowing the status.’ ” Ex parte State ex rel. J.Z., 668 So.2d 566, 571 (Ala.1995) (quoting Ex parte State ex rel. J.Z., 668 So.2d 561, 564 (Ala.Civ.App.1994) (Thigpen, J., dissenting)).

In essence, the tenant’s Rule 60 motion sought an extension of time within which to file her appeal to the circuit court. However, “ ‘Rule 60(b), Ala. R. Civ. P., cannot be substituted for the exclusive remedy provided by Rule 77(d) and thereby used as a method to extend the time within which to appeal.’ ” Hopper v. Sims, 111 So.2d 122, 125 (Ala.Civ.App.2000) (quoting Corretti v. Pete Wilson Roofing Co., 507 So.2d 408, 409 (Ala.1987)). See also Lindstrom v. Jones, 603 So.2d 960, 961 (Ala.1992); Gallo v. Gallo, 741 So.2d 1093, 1095 (Ala.Civ.App.1999).

“Rule 77(d), Ala. R. Civ. P., exclusively governs situations in which a party claims lack of notice of the entry of a judgment or order. That rule provides, in pertinent part, as follows:
“ ‘Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.’ ”

Hopper v. Sims, 777 So.2d at 125. See also Bacon v. Winn-Dixie Montgomery, Inc., 730 So.2d 600 (Ala.1998). Rule 77(d) could provide no basis for relief to the tenant because it is undisputed that the tenant had actual knowledge of the entry of the judgment on June 11, two days before her appeal time ran. Rule 77(d) is not applicable when a party learns of the entry of a judgment before the time for appeal lapses. See Ex parte Thrailkill, 543 So.2d 1201, 1202 (Ala.Civ.App.1989). See also Cline v. Roemer, 97 Idaho 666, 551 P.2d 621 (1976)(indicating that an extension of the time for an appeal under Rule 77(d), Idaho R. Civ. P., is not appropriate when a party has actual notice of the judgment or order before the time for appeal has run).

The tenant’s allegation that she was entitled to relief from the district court’s May 30 judgment because, in deciding not to attend the trial, she relied on information from Prudential’s attorney as to what amount was “at stake” in the trial does not qualify, under Rule 60(b)(3), as “fraud ..., misrepresentation, or other misconduct of an adverse party.”

“One who contends that an adverse party has obtained a verdict through fraud, misrepresentation, or other misconduct (Rule 60(b)(3)) must prove by ‘clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.’ ”

Pacifico v. Jackson, 562 So.2d 174, 179 (Ala.l990)(quoting Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.1979)). Clearly, Prudential’s attorney did not “prevent” the tenant from presenting her case. To grant relief to the tenant on this basis would be to give a preference under our procedural rules to a pro se litigant who deliberately chooses not to obtain counsel and not to attend his or her own trial. See Ex parte Spriggs Enters., [Ms. 2011279, January 10, 2003] — So.2d -, - (Ala.Civ.App.2002).

“ ‘[R]elief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments.... Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.’ ”

Osborn v. Roche, 813 So.2d 811, 818 (Ala.2001) (quoting Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993)).

The judgment of the circuit court is affirmed.

AFFIRMED.

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

MURDOCK, J., concurs specially.

MURDOCK, Judge,

concurring specially.

In concurring with both the analysis of and the result reached by the majority, I note that this is not a case in which a defendant sought Rule 60(b), Ala. R. Civ. P., relief in the district court based on the principles discussed in Continental Casualty Co. v. Barlar, 55 Ala.App. 441, 316 So.2d 690 (Ala.Civ.App.1975).

      . Despite the fact that she demanded only $1,000, the landlord attached as an exhibit to her cross-claim a list of repairs she alleged needed to be made to the house amounting to $5,100.

      . The tenant's affidavit on “motion to reconsider" avers that she received notice by mail from the district court on June 15, 2001, the day after her time for appeal had run.


source: Caselaw Access Project

author: THOMPSON, Judge. MURDOCK, Judge,

license: Public Domain

text:
    K.L.R. v. L.C.R.
    2010823.
    Court of Civil Appeals of Alabama.
    Jan. 24, 2003.

      Kenneth J. Lay of Legal Services of Metro Birmingham, Birmingham, for appellant.
    Corey B. Moore and Candace Stewart-Magee of Weathington & Moore, Moody, for appellee.
   THOMPSON, Judge.

L.C.R. (“the father”) and K.L.R. (“the mother”) were divorced by a December 8, 1993, judgment of the Jefferson Circuit Court, Bessemer Division; that judgment incorporated an agreement reached by the parties. Pursuant to the divorce judgment, custody of the parties’ son and daughter was awarded to the mother. The circuit court later entered a 1998 modification judgment that also incorporated an agreement of the parties; the 1998 modification judgment increased the father’s visitation with the children.

On September 10, 2001, the Department of Human Resources (“DHR”) took the children into protective custody because it found that the mother was inadequately supervising the children. On September 12, 2001, the Family Court of Jefferson County (hereinafter “the juvenile court”) awarded the father temporary custody of the children. The next day, the father filed a petition in the Jefferson Circuit Court (hereinafter “the trial court”) seeking to modify custody of the children. Upon learning of the father’s action in the trial court, the juvenile court transferred to the trial court the action relating to the children that was then pending in the juvenile court.

On October 3, 2001, the mother filed in the trial court a motion to dismiss the father’s modification petition. In that motion, the mother argued only that there had been no material change in circumstances that would justify a modification of custody of the parties’ two children. On October 10, 2001, the mother filed a motion seeking to transfer the action, on the basis of improper venue, to the Bessemer Division of the Jefferson Circuit Court. The trial court denied that motion.

The trial court received ore tenus evidence over the course of a two-day hearing in January 2002. On February 8, 2002, the trial court entered a judgment that awarded custody of the parties’ children to the father, ordered the mother to pay child support, and awarded the mother “the right of reasonable access [to] visitation” with the children. Both parties filed post-judgment motions; the trial court denied those motions. The mother appealed.

At the time of the January 2002 hearing, the parties’ son was 14 years old and then-daughter was 13 years old. The testimony at trial indicated the following. On September 9, 2001, after the father left the son and daughter at the mother’s house following his weekend visitation, the children discovered that the mother was not at home. When the mother did not return after several hours, the son became concerned and telephoned one of his teachers. The teacher and the children were unable to locate the mother that evening. The son spent that night with another of his teachers; the daughter stayed with a friend.

The next day, September 10, 2001, the children went to school and, when the mother did not respond to the school authorities’ attempts to reach her, the school authorities telephoned the police and DHR. Police officers and a DHR social worker went to the school. One of the son’s teachers testified that the mother answered the telephone at her home at approximately 10:30 that morning and that she informed the teacher that she had been “out” the night before. The mother did not go to the school after the son’s teacher reached her by telephone. The school authorities telephoned the father; the father arrived at the school within 30 minutes of being contacted. The children went home with the father on the afternoon of September 10, 2001, and they have remained in the father’s home since that time.

The mother testified that she had attended a meeting of Alcoholics Anonymous on the night of September 9, 2001. She contended that someone at the children’s school had told her it was not necessary for her to come to the school on September 10, 2001.

Both parties admitted using illegal drugs and drinking alcohol during their marriage. At the hearing, the father testified that he had not used illegal drugs in 10 years. The father testified that he drank beer and, on occasion, whiskey. The father has been employed at the same job for 11 years. The father testified that he had moved seven or eight times since the parties’ divorce in 1993. Shortly before the children came into his custody in September 2001, the father purchased a house. The father, his new wife, her two children, and the parties’ two children all live in that house; each child has his or her own bedroom.

The mother is a recovering alcoholic who admits that she suffered a relapse during a weekend in late August 2001. The testimony about that relapse, which was provided by acquaintances of the mother, indicates that the mother was drinking gin, that she danced naked in a public street, and that she attempted to purchase illegal drugs. The mother testified that she had no recollection of.that relapse.

The mother denied that she had used illegal drugs or alcohol on any occasion other than that weekend in late August 2001, when she suffered a relapse. However, at the time they were taken into protective custody, the children made statements indicating that they had seen the mother using illegal drugs. The daughter also alleged that the mother and the mother’s boyfriend had offered her marijuana.

In addition, a friend of the mother’s testified that before and shortly after the August 2001 incident, he had seen the mother’s automobile at a house known as a place where illegal drugs could be purchased. The mother’s brother testified that the mother had telephoned him from a bar in October 2001 and had asked him to pay for her drinks at the bar; he testified that he had refused to do so. Also, the father submitted into evidence the transcripts of several conversations in November 2001 between the mother and R.H., the father’s brother-in-law, who the father testified is a drug addict. Those conversations had been tape-recorded. In those conversations, R.H. made arrangements to purchase illegal drugs from the mother.

The father testified that he has forbidden R.H. from coming to his home. However, the children testified that between the time they arrive home from school in the afternoons and the time the father or their stepmother arrives home from work, R.H. often visits the father’s home. The children testified that they had not told the father that R.H. was still coming to the father’s house when the father was not at home.

The daughter has made two allegations of sexual abuse since September 2001. The first allegation was made against the mother’s boyfriend, whom the daughter accused of touching her inappropriately. She made similar allegations against a teenaged friend of her stepbrother. A DHR social worker testified that DHR had investigated those allegations and had determined that they were either untrue or “not indicated.”

The father acknowledged that his relationship with the children has been strained since they came to live with-him in September 2001. Shortly after he went to live with the father, the son threatened to commit suicide. The father testified that, as a result of that threat, the son has been in counseling since mid-October 2001.

The father testified that the children were generally distant or withdrawn' when they returned from visitation with the mother. The mother testified that there was “a great possibility” that she had made comments to the daughter indicating she would like to harm the father’s new wife. The mother also admitted that she had told the children that if they misbehaved and were disruptive while they were living with the father,' the father would send them back to live with her.

During the testimony in which the mother admitted that she had encouraged the children to be disruptive at the father’s house, the trial court interrupted the hearing to warn the mother that if she continued to make such comments to the children he would order that she be incarcerated for contempt. The trial court also warned the mother that her behavior increased the possibility of the children’s getting into trouble and being placed in detention.

On the second day of the hearing, both the daughter and the son were called as witnesses. The daughter testified that, during breaks in the hearing the day before, the mother had spoken to her about the progress of the case. The trial court interrupted the daughter’s testimony in the following exchange:

“[TRIAL COURT]: Well, let me ask you a question, ma’am. Now, look up here at me. Do not look at anyone else. You say your mom talked to you about what was going on in here?
“[DAUGHTER]: Yes, sir.
“[TRIAL COURT]: About who was testifying and what they were saying?
“[DAUGHTER]: No, sir. She would say stuff like, it is looking good for us, or it is looking bad. She would not say who was talking.
“[TRIAL COURT]: And when did she do this? Did she do this this morning?
“[DAUGHTER]: Yesterday.
“[TRIAL COURT]: Yesterday?
“[DAUGHTER]: Yes, sir.
“[TRIAL COURT]: And did she tell you who was testifying?
“[DAUGHTER]: No, sir.
“[TRIAL COURT]: What they were saying?
“[DAUGHTER]: No, sir. I mean, we could see them walking in, but—
“[TRIAL COURT]: I understand that. I am going to disqualify this witness. [The mother] is the one that requested the [witness-exclusion] Rule. You are excused, ma’am.
“[MOTHER’S ATTORNEY]: On what grounds, Your Honor?
“[TRIAL COURT]: She violated the Rule.
“[MOTHER’S ATTORNEY]: In what way?
“[TRIAL COURT]: [The mother] discussed what went on in here with this witness. I am going to disqualify this witness. You have your exception.”

When the parties’ son testified, the father’s attorney questioned the son about whether, during the previous day’s hearing, he had been reading one of the depositions taken in the case. The son answered that he did not think he had been reading a deposition but that he believed he had read some notes the mother had made; it is not clear when the mother made those notes. The son testified that he could not recall the content of the notes. The trial court allowed the son to testify.

The parties’ son testified that he wanted to live with the mother. He also testified regarding an incident in which the father had hit the daughter and had struck the stepmother when she had attempted to intervene. The daughter had also testified regarding that incident before the trial court disqualified her as a witness.

The mother first argues that the trial court erred in denying her motion to transfer the action based on improper venue. The mother contends that the proper venue for the action was the Bessemer Division of the Jefferson Circuit Court because that court entered the parties’ original divorce judgment and the 1998 modification judgment. The mother cites § 80-3-5, Ala.Code 1975, in support of her argument that venue in the trial court was improper.

However, a party can waive the issue of improper venue by failing to assert that defense in a responsive pleading or in a motion to dismiss. In this case, on October 3, 2001, in response to the father’s petition to modify custody, the mother filed a motion to dismiss the petition. In her motion to dismiss, the mother addressed only the merits of the father’s petition; she did not raise the issue of improper venue. On October 10, 2001, the mother filed a motion seeking to transfer, on the basis of allegedly improper venue, the action from the trial court to the Bessemer Division of the Jefferson Circuit Court.

“Rule 12(b)[, Ala. R. Civ. P.,] ... requires that a claim of ‘improper venue’ be made in the responsive pleading or in a motion filed before the responsive pleading.” Ex parte Till, 595 So.2d 871, 872 (Ala.1992). Where a party fails to raise the defense of improper venue in a motion to dismiss, that defense is waived. Clayton Homes of Decatur v. Smith, 534 So.2d 272 (Ala.1988). We conclude that the mother, by failing to object to the alleged improper venue in her initial October 3, 2001, motion to dismiss, waived her objection to that issue. It is not clear whether the trial court, in denying the mother’s motion to transfer the case on the basis of venue, considered the mother’s failure to raise that issue in her motion to dismiss. However, this court may affirm a correct judgment of the trial court for any reason, even if the trial court did not consider that reason in making its ruling. Mutual Assurance, Inc. v. Wilson, 716 So.2d 1160 (Ala.1998); Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So.2d 238 (Ala.1992).

The mother next argues that the trial court erred in refusing to appoint a guardian ad litem to represent the children in this matter. The mother cites § 26-14-11, Ala.Code 1975, which provides:

“In every case involving an abused or neglected child which results in a judicial proceeding, an attorney shall be appointed to represent the child in such proceedings. Such attorney will represent the rights, interests, welfare and well-being of the child, and serve as guardian ad litem for said child.”

In making her argument on this issue, the mother argues that the trial court was required to grant her motion in which she sought the appointment of a guardian ad litem to represent the children because this matter started as a dependency action in the juvenile court and because of the daughter’s allegations of sexual abuse.

The record indicates that the juvenile court awarded the father temporary custody of the children in September 2001. Shortly thereafter, the father sought to modify the custody provision of the parties’ divorce judgment. The juvenile court then transferred the action pending in that court to the trial court. Thereafter, in the proceeding in the trial court, neither party alleged that the children were dependent pursuant to § 12-15-1(10), Ala.Code 1975. In its judgment, the trial court did not find the children to be dependent, and it did not purport to enter a dispositional custody order pursuant to § 12-15-71, Ala.Code 1975. In fact, the trial court dismissed that part of the action that had been transferred to it from the juvenile court. The only issue before the trial court was whether the custody provision of the parties’ divorce judgment should be modified to award the father custody of the parties’ two children. Therefore, we conclude that, although the juvenile court was involved in this matter in its early stages, the dispute before the trial court was in the nature of a custody dispute rather than a juvenile-dependency action. See S.G. v. P.C., 853 So.2d 246 (Ala.Civ.App.2002) (holding that the dispute in that case was a custody dispute and not a dependency action); B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002) (finding the action to be in the nature of a custody dispute rather than a dependency action).

In D.E.S. v. J.S., 603 So.2d 1064 (Ala.Civ.App.1992), a mother argued that the trial court had erred in failing to appoint a guardian ad litem to represent the interests of the child in a custody-modification proceeding. This court concluded that the requirement in § 26-14-11, Ala.Code 1975, that a guardian ad litem be appointed did not apply in the context of a custody-modification proceeding. In so holding, this court cited with approval a case holding that § 26-14-11 applied primarily to cases involving a civil proceeding against a child or to criminal proceedings involving the abuse of a child. D.E.S. v. J.S., 603 So.2d at 1066 (citing Burkett v. State, 439 So.2d 737 (Ala.Crim.App.1983)).

The mother has cited no authority other than § 26-14-11 for her argument that the trial court was required to appoint a guardian ad litem to represent the interests of the children and that it erred in not doing so. Based on the authority of D.E.S. v. J.S., supra, we cannot agree with the mother that the trial court erred in not appointing a guardian ad litem to represent the children in this custody-modification action.

The mother next argues that the trial court erred in disqualifying the parties’ daughter as a witness at the hearing on this matter. The trial court decided to disqualify the daughter as a witness in this matter when she testified that, during the course of the ore tenus hearing, she and the mother had discussed how well the mother believed the case was progressing. Rule 615, Ala. R. Evid., provides that a trial court may, either on its own initiative or at the request of a party, order witnesses excluded from the courtroom in order to prevent their hearing the testimony of other witnesses. Excluding witnesses from the proceeding pursuant to Rule 615 (“the rule”) is commonly known as “invoking the rule.” In this case, the trial court stated that the mother had “invoked the rule.”

The determination whether to allow the testimony of a witness based on a violation of “the rule” is within the trial court’s discretion. Faulkner v. Walters, 661 So.2d 227 (Ala.1995); Christiansen v. Hall, 567 So.2d 1338 (Ala.1990); Nationwide Mut. Ins. Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1966); Raymond v. Pointer, 222 Ala. 518, 133 So. 260 (1931); Sloss-Sheffield Steel & Iron Co. v. Smith, 40 So. 91 (Ala.1905). “The purpose to be served in putting witnesses ‘under the rule’ is that they may not be able to strengthen or color their own testimony, to testify to greater advantage in line with their bias or to have their memories refreshed, sometimes unduly, by hearing the testimony of other witnesses.” II Charles W. Gamble, McElroy’s Alabama Evidence § 286.01(1) (5th ed.1996) (footnote omitted). The mother contends that the exclusion of the daughter’s testimony was too harsh a sanction under the facts of this case. “However, such a sanction may be imposed when a party or the party’s attorney either contributes to or has failed to act reasonably to prevent the violation.” Rule 615, Ala. R. Evid., Advisory Committee’s Notes (citing Ex parte Faircloth, 471 So.2d 493, 497 (Ala.1985) (the trial court did not abuse its discretion in excluding the testimony of the petitioner’s witness under the rule where the petitioner had invoked the rule and had failed to ensure that the witness stayed out of the courtroom)).

In this case, the daughter testified that, during the course of the hearing and before the daughter was called to testify, the mother informed the daughter regarding her impression of whether the case was going in her favor, i.e., in favor of the mother’s maintaining custody of the children. It is undisputed that the daughter wanted to live with the mother. Further, the evidence indicates that the mother had actively encouraged the children to be disruptive so as to discourage the father from seeking custody of them, and the record would support a conclusion that the children had indeed been disruptive. Therefore, the evidence would support a conclusion that, upon being informed of the mother’s impression of the progress of the modification proceeding, the daughter would be likely to “strengthen or color [her] own testimony, [or] testify to greater advantage in line with [her] bias” in order to attempt to persuade the trial court not to modify custody so as to award custody to the father. See McElroy’s Alabama Evidence § 286.01(1). Given the facts of this case, we cannot say that the trial court abused its discretion in excluding the daughter’s testimony.

The mother also argues that the trial court erred in failing to apply the Custody and Domestic or Family Abuse Act, §§ 30-3-131 through -135, Ala.Code 1975, in reaching its custody-modification judgment. However, the mother did not make this argument before the trial court during the ore tenus hearing, and she did not assert an argument on this issue in her postjudgment motion. Therefore, the mother attempts to raise this issue for the first time in her brief on appeal. It is well settled that this court can review only those issues an appellant properly presented to the trial court and that it cannot consider an issue raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988).

The mother argues that the evidence does not support a modification of custody under the applicable standard of review. A parent seeking to modify custody must demonstrate that the change in custody would materially promote the child’s welfare and that the disruption caused by the change in custody would be offset by the advantages of that custody change.’ Ex parte McLendon, 455 So.2d 863 (Ala.1984). The evidence in support of a modification of custody must be substantial, and it must demonstrate an overwhelming necessity for a change. Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992). “ ‘The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.’ ” Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Therefore, where a trial court modifies custody after receiving ore tenus evidence, its judgment is entitled to a presumption of correctness on appeal and that judgment will not be reversed unless it is so unsupported-by the evidence as to be plainly and palpably wrong. Ex parte Patronas, supra; Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995).

The mother argues that the children are unhappy living with the father and that the father has physically abused the parties’ daughter; therefore, she maintains that the trial court erred in awarding custody of the children to the father. The only evidence the trial court admitted pertaining to the incident in which the father allegedly hit the daughter was the son’s testimony. The son did not describe the incident in any detail. We cannot say that the evidence in the record pertaining to that incident is sufficient to demonstrate that the trial court’s award of custody is unsupported by the evidence.

The record does indicate that the father’s relationship with the children is strained and that the children would prefer to live with the mother. However, the record contains evidence indicating that the mother has encouraged the children to be disruptive and to create problems within the father’s home; that evidence would also support a conclusion that the mother has contributed to the children’s unhappiness while they have been in the father’s home.

Since the date of the divorce judgment, the mother has, on separate occasions, been arrested on charges of public intoxication, soliciting prostitution, and criminal trespass; she has pleaded guilty to one count of soliciting prostitution. The mother testified that her relapse at the end of August 2001 was the only time she has recently used illegal drugs or alcohol. However, the testimony of other witnesses contradicts the mother’s testimony on this issue. At the time they were first placed in their father’s custody, the children made statements indicating that they had seen the mother using illegal drugs. The transcript of the conversations between the mother and R.H. supports an inference that the mother has continued an involvement with illegal drugs. Also, the mother’s brother testified that in October 2001, the mother had asked him to assist her in purchasing alcohol; the mother denied that allegation. However, we note that during the course of the mother’s testimony the trial court stated that it was having difficulty accepting the mother’s testimony as credible.

Although the father’s relationship with the children was, at the time of the hearing, less than ideal, the evidence in the record supports a conclusion that the mother had contributed to the difficulties between the father and the children by encouraging the children to misbehave while in their father’s custody. The evidence also supports a conclusion that the mother’s testimony that the relapse of her sobriety lasted only one weekend in August 2001 was not credible. Given the evidence in the record, we cannot say that the trial court erred in determining that the father had met his burden under Ex parte McLendon and in modifying custody of the children to the father.

The mother last argues that the trial court erred in its award to her of visitation with the children.

“ ‘The determination of proper visitation ... is within the sound discretion of the trial court, and that court’s determination should not be reversed absent a showing of an abuse of discretion.’ Ex parte Bland, 796 So.2d 340 (Ala.2000). ‘[C]ases in Alabama have consistently held that the primary consideration in setting visitation rights is the best interests and welfare of the child. Furthermore, each child visitation case must be decided on its own facts and circumstances.’ Fanning v. Fanning, 504 So.2d 737, 739 (Ala.Civ.App.1987) (citations omitted). ‘When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987).’ Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).”

K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001).

In K.L.U. v. M.C., supra, the trial court awarded the father visitation with the parties’ minor child. However, rather than setting forth the specific times for that visitation, the trial court allowed the parties to arrange visitation. The father appealed. This court reversed, holding that it was error for the trial court to allow the mother to determine the father’s visitation schedule. K.L.U. v. M.C., supra. See also Bryant v. Bryant, 739 So.2d 53 (Ala.Civ.App.1999) (reversing the trial court’s visitation award, which vested in the mother the total discretion to determine the father’s visitation rights).

As it pertains to the mother’s right of visitation, the trial court’s judgment in this case states only “[t]hat the [mother] shall have the right of reasonable access of visitation with the parties’ minor children.” .Given the authority of K.L.U. v. M.C., supra, and Bryant v. Bryant, supra, we conclude that the trial court erred in failing to set forth a specific schedule for the mother’s visitation with the children. Therefore, we reverse that portion of the trial court’s judgment that relates to visitation. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I respectfully dissent; I would reverse the trial court’s judgment in its entirety and remand the cause for a new trial. I write separately to comment only on the issue of the disqualification of the daughter’s testimony.

This is a child-custody case. The trial court disqualified the testimony of one of the two children whose custody is at issue; the child was 13 years old at the time of the custody hearing. The trial court disqualified the daughter as a witness based on its conclusion that there had been a violation of “the rule,” see Rule 615, Ala. R. Evid., and that this violation justified a disqualification of the witness. I can find no such violation of the rule in the record before us.


author: YATES, Presiding Judge.

text:
    Jennifer Jean WEBBER v. Kenneth Paul WEBBER.
    2010626.
    Court of Civil Appeals of Alabama.
    Feb. 7, 2003.

      Michael A. Anderson of Najjar Dena-burg, P.C., Birmingham, for appellant.
    Mavanee R. Bear, Birmingham, for ap-pellee.
   YATES, Presiding Judge.

This is a custody-modification case. Jennifer Jean Webber (“the mother”) and Kenneth Paul Webber (“the father”) divorced in 1999. The final judgment incorporated an agreement of the parties, which awarded custody of the parties’ two minor children — a boy and a girl, ages two and three, respectively, at the time of divorce — to the mother, with liberal visitation to the father.

On July 27, 2000, the father petitioned for a modification of custody, alleging that a material change in circumstances had occurred because, he said, the children were suffering emotional and physical injury in the custody of the mother. The father also moved for an emergency order granting him temporary custody of the children. The court set the petition and the motion for a hearing in September. However, on August 10, 2000, the father petitioned for a protection-from-abuse order, sought an ex parte order granting him temporary custody of the children, and moved to consolidate all of his pleadings. On October 10, 2000, the father moved for a default judgment against the mother, alleging that almost 60 days had passed without a response from her. On October 13, 2000,-the mother .answered the father’s petition. Following an October 25, 2000, hearing, the court ordered the Department of Human Resources (“DHR”) to perform a home study on the parties; however, the order was not filed until May 15, 2001. On July 12, 2001, the father moved for an emergency transfer of custody, alleging that the mother was neglecting the children. The court entered an order dated July 12, 2001, that awarded temporary custody of the children to the father. The mother moved to set aside the July 12, 2001, custody order. The court appointed a guardian ad litem to represent the children, and it set the matter for trial.

Following an ore tenus hearing in October 2001, the court entered an order, that stated, in part,

“that the [father] shall have care, custody and control of the minor children ... who shall reside with [the father], provided, that the [mother] shall have the right to visit with said minor children on alternate weekends.... This visitation order is contingent upon the [mother] maintaining her residence within a 25-mile radius of Moody, Alabama. In the event that she should move her residence beyond the 25-mile radius her visitation with the minor children shall be suspended pending further order of this court.”

The mother moved to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. The court set the mother’s postjudgment motion for a hearing and later denied the motion. The mother appealed.

The mother argues that the trial court abused its discretion in changing custody so as to award custody to the father. “The ore tenus rule is applicable to child-custody-modification proceedings, and the court’s judgment based on its findings of fact will not be reversed absent a showing that the findings aré plainly and palpably wrong.” E.M.C. v. K.C.Y., 735 So.2d 1225, 1228 (Ala.Civ.App.1999). This court has stated:

“When a noncustodial parent seejcs to modify the custody provision of a prior judgment, the evidentiary standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), must be applied. The petitioning parent must show that a change in custody will materially promote the child’s best interests and welfare. Id. That parent must also show that the good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Butts v. Startley, 600 So.2d 310 (Ala.Civ.App.1992).”

Etheridge v: Etheridge, 712 So.2d 1089, 1091 (Ala.Civ.App.1997)..

The father testified at the October 2001 hearing that he had been employed at Authentic Cabinets for about five years, earning approximately $35,000 per year, and that he provides health insurance for both children. He further stated that he lived in a three-bedroom, two-bathroom apartment. He stated that the children had been living with him most of the time since December 2000,. when the mother told him that she was not able to keep the children because she had to work. He testified that the children had been living with him full-time since July 2001.

The father testified that the daughter suffers from a serious medical condition known as kidney reflux, which requires her to take medication every day to help prevent kidney failure and a subsequent transplant or surgery. He further stated that the daughter frequently suffers from severe urinary tract infections, and that she sees a kidney specialist at Children’s Hospital in Birmingham. He testified that when the mother had custody of the children, she seldom sent the daughter’s medication when the daughter visited with him. He went on to state that the daughter suffered kidney damage in 1999 as a result of the mother’s failure to give the daughter her medication as prescribed.

The father testified that the mother had provided a very unstable living environment for the children. He stated that one of the reasons he wanted to obtain custody was because when he picked the children up for his summer 2000 visitation they were hungry, dirty, unkempt, and mentally underdeveloped. He further testified that the mother changed residences frequently and that she had allowed several of her friends to stay in her home while she had custody of the children.

The father testified that since the children have been in his custody they were doing very well; that they were enrolled in school; and that they were on a daily routine. The father presented several witnesses, including the paternal grandmother, two of his neighbors, and the children’s teachers, who testified that he was a good and loving father and that the children had greatly improved since they had been in his custody.

The mother testified that she had been living in Birmingham with the maternal grandmother for a few months, working as a server at Logan’s restaurant. According to the record, the mother had previously been employed as a server at a restaurant and bar in Chattanooga, Tennessee, often working until 3:00 a.m. Although she reported to DHR that she earned about $2,400 per month, and that after paying her monthly expenses she had $1,000 left each month, the mother testified that she had suffered financially and had “[run] into hard times.” She further testified that “I didn’t get to spend as much time with [the children] as I wanted to, but it was always because I was working and trying to make ends meet.... ” She testified that she wanted to move back to Chattanooga and get her old job back. However, she further testified that if she was given custody of the children she would quit working nights and move into a three-bedroom mobile home in Trussville, Alabama. The mother denied that she had neglected the children in any way.

It appears that the mother has exhibited questionable judgment on more than one occasion regarding the health and welfare of the children. We cannot say that the court abused its discretion in changing custody from the mother to the father. Therefore, we affirm that portion of the judgment.

The mother further argues that the trial court abused its discretion in ordering that her visitation rights be suspended in the event that she fails to maintain her residence “within a 25-mile radius of Moody, Alabama.” It is well-settled law in Alabama that the determination of visitation rights for the noncustodial parent is a matter resting within the sound discretion of the trial court and that its judgment on that matter will not be reversed on appeal except for an abuse of that discretion. Ladewig v. Moxley, 589 So.2d 738 (Ala.Civ.App.1991). That broad discretion is based upon the trial court s having the benefit of hearing evidence presented ore tenus and the opportunity to personally observe the litigants and witnesses. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987). In exercising its discretion in awarding visitation rights, the trial court’s primary consideration must be the best interests and welfare of the child, and each case must be decided on its own facts and the personalities involved. Durham v. Heck, 479 So.2d 1292 (Ala.Civ.App.1985). This court has upheld a residential restriction when the best interests of the child would be served. See Everett v. Everett, 660 So.2d 599, 602 (Ala.Civ.App.1995) (trial court did not abuse its discretion in restricting the custodial parent from changing her residency without the prior consent of the father or the prior approval of the court because of evidence of serious problems the older son had had and his need for care and treatment). However, concerning an automatic modification of a visitation award, we have held:

“Although we have not previously addressed this precise issue, we have held similar automatic modifications within the contexts of child support and custody to be in error. In Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990), this court struck down a custody rever-sionary clause that modified custody from one parent to the other in the event of a parent’s move from a geographical area. We found the clause to be of no effect because ‘it is premised on a mere speculation of what the best interest of the children may be at a future date.’ Id., at 463. In Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990), the trial court had entered an order providing for the automatic escalation of child support payments. We reversed that provision, finding that ‘there is no evidentiary basis for the determination of future events and ... there exists an adequate procedure for modification when changes in circumstances do occur.’ Id., at 864.”

Hall v. Hall, 717 So.2d 416, 417 (Ala.Civ.App.1998).

We conclude that the trial court was justified in placing a residential restriction upon the mother’s visitation rights, based upon the overwhelming evidence of her haphazard lifestyle, her apparent inability at this point to adequately care for the children, and the daughter’s medical condition. However, we further conclude that the trial court’s automatic suspension of the mother’s visitation rights should she move beyond the area designated in the trial court’s order is based upon conjecture as to what the best interests of the children might be in the future. Hall at 417. We note that the trial court could have included a provision in its order requiring the mother to give prior written notification to the father of her intent to move from the restricted area or that the court could have ordered that the mother’s visitation be supervised. Therefore, that portion of the court’s judgment regarding an automatic suspension of the mother’s right to visitation is reversed, and the case is remanded for the trial court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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


author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    Nava Annette WADSWORTH v. Brian Keith WADSWORTH.
    2011050.
    Court of Civil Appeals of Alabama.
    Feb. 7, 2003.
    Connie Cooper, Phenix City, for appellant.
    L. Joel Collins, Phenix City, for appel-lee.
   YATES, Presiding Judge.

After 13 years of marriage, Brian Keith Wadsworth sued Nava Annette Wads-worth for a divorce on November 1, 2001, alleging incompatibility of temperament between the parties. According to the husband’s complaint, the parties had been separated for approximately eight months, and no children were born of the marriage. The husband requested that the marital home be sold and that the trial court equitably divide the assets and liabilities of the parties. The wife answered and counterclaimed, also alleging incompatibility of temperament between the parties. She further requested that the husband pay her attorney fees and court costs; that the marital home be sold and the proceeds divided equally; that she be awarded her automobile and that the husband make the loan payments on it; and that she be awarded one-half of the husband’s military retirement, among other things. The husband moved for a final hearing.

Following an ore tenus hearing, the court entered an order, dated April 80, 2002, that stated, in part:

“3. [The husband] is hereby awarded [the marital home] ... Upon the sale of [the marital home], [the husband] shall pay over to [the wife] all net proceeds from said sale.
“The Clerk of the Russell County Circuit Court is hereby ordered to execute a Statutory Warranty Deed for said real estate to convey all interest [the wife] shall have in and to [the marital home].
“4. The Trial Court reserves the issue of periodic alimony and equity in [the marital home] for a determination within one (1) year of the date of this decree.
“5. [The wife] is awarded the 2000 Oldsmobile Alero ... [The husband] shall pay the payments on said automobile until December 1, 2002. [The wife] shall assume the indebtedness on said vehicle as of [said date] and shall hold [the husband] harmless thereon.
“6. [The husband] is awarded the 1988 Oldsmobile Cutlass ... the 1979 Ford F-150 truck ... and the 2001 Honda 750 Shadow Classic motorcycle....
“7. [The husband] shall be responsible for the payment of all credit cards in full and hold [the wife] harmless thereon.”

The wife moved for a new trial, or, in the alternative, to alter, amend, or vacate the final judgment; the court denied the motion. The wife appealed.

The wife argues that the trial court abused its discretion in its division of marital assets. In reviewing a judgment of the trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under that rule, the trial court’s judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 628 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court’s unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Additionally, matters of alimony and property division rest soundly within the trial court’s discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Factors the trial court should consider in its award of alimony and its division of property include the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; the parties’ station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the marriage. Id., at 1067. Further, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Id. Additionally, an attorney fee may be allowed in a divorce case, in the discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986).

The wife testified that the parties married in 1988 and that they had no children together. She testified that the marriage began to sour about eight years before the husband sued for a divorce, and that they had attended marital counseling on a few occasions, without success. She went on to state that the husband’s demeanor was very aggressive and that he “rages,” “yells,” and “threatens.”

The wife testified that she suffers from a severe bone disease, chronic depression, post-traumatic stress disorder, familial rickets, and osteoporosis; that she is 100 percent disabled; and that she receives a benefit check in the amount of $717 per month. She went on to state that during the parties’ separation she had been living in Idaho with her daughter from a previous relationship.

■ The wife submitted exhibits that listed her anticipated living expenses, totaling approximately $2,400 per month, as follows: rent — $500; utilities — $200; car payment — $354; automobile insurance, gasoline, and automobile maintenance— $140; food — $250; clothing — $50; doctor and dentist — $150; and prescription medication — $793. She testified that during the marriage her prescriptions had been covered by the husband’s health insurance, and that without that insurance she could not afford her necessary medication.

The wife testified that the parties owned a house situated on approximately 22 acres, and valued between $120,000 and $150,000. She testified that the house needed some repairs. She went on to state that the mortgage payment was $794 per month; that they owed about $82,000 on the home; and that the husband had mentioned taking out a $16,000 second mortgage to have the repairs made. The wife went on to state that she would like the court to award her a portion of the property to live on, and that she wanted one-half of the equity in the residence. She said that she would need financial assistance from the husband in finding and paying for a home of her own if the court does not allow her to stay on the property.

The wife testified that she and the husband had previously divided all of their personal property, except for their vehicles. She stated that she wanted to keep her automobile, a 2000 Alero, and she wanted her husband to pay for it. She went on to state that the husband had given her their $597 income tax refund for the year 2001 and their $250 savings account.

During a colloquy with the court, the husband indicated that he would retire from the United States Army after serving 20 years. He indicated that he had been making payments on the marital home, the wife’s vehicle, and on $16,000 worth of credit card debt. He further stated that he believed that the marital home would sell for approximately $160,000, after the needed repairs have been made. After thoroughly reviewing the record, we find the trial court’s award of alimony and property division to be inequitable. The record is clear that the wife is 100% disabled and that she requires numerous costly prescription medications to function on a daily basis. We note that although the court awarded the wife the proceeds from the sale of the house when it is sold, there is no immediate order for its sale. Furthermore, while the court reserved the right to award alimony to the wife at a later date, it failed to address her immediate needs. Accordingly, we reverse the judgment and remand the case for the trial court to enter an order consistent with this opinion.

The wife’s request for an attorney fee on appeal is granted in the amount of $1,500. The husband’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

THOMPSON, J., concurs in the result.

CRAWLEY AND MURDOCK, JJ„ dissent.

MURDOCK, Judge,

dissenting.

As discussed in the main opinion, the trial court based its decision on evidence received ore tenus and that decision is therefore presumed correct and is not to be disturbed on appeal unless it is plainly and palpably wrong.

The trial court awarded the wife all of the equity in the parties’ marital home, most of the furniture and furnishings from that home, and a 2000 Oldsmobile Alero automobile. The trial court also required the husband to pay the following debts: the monthly mortgage payment of $794 on the parties’ marital home until such time as the home is sold (which the trial court stated on the record was to be accomplished within 12 months); the monthly payment of $354 on the loan used to finance the automobile awarded to the wife (the husband’s obligation for this monthly payment extended from the time of the trial court’s judgment in April 2002 until November 2002); and all of the remainder of the marital debts (including $16,000 in credit-card debt). Addressing the wife, the trial court stated on the record:

“I’m going to give Mr. Wadsworth the house, and he’s going to assume the debt. He’s ordered to have it sold within 12 months, and you get all the equity. All right. I’m going to order him to pay your car payment until November of this year [2002], I’m going to order him to assume all other marital debt, and I’m reserving the ruling on the periodic alimony request to see whether or not all this is done. Like I told you, [the husband] is basically assuming, either giving up — either giving you or paying in the neighborhood of $74,000. And if he does that, then more than likely I’m not going to award any further alimony. This will be a property type settlement. You’re getting it all.”

While the trial court had before it evidence as to the wife’s financial needs and her income, it also was presented with testimony from which it could infer that the wife was currently living free of charge with her daughter in Idaho. The record contains insufficient evidence from which to determine the husband’s financial needs. Moreover, the record contains no evidence as to the husband’s income. In other words, while the wife may have satisfied her burden of proof as to her need for alimony, she failed to introduce sufficient evidence relating to the husband’s ability to pay alimony. See Austin v. Austin, 678 So.2d 1129 (Ala.Civ.App.1996).

The wife’s brief contains the following statement: “In reality, it is difficult to determine if the award fashioned by the trial judge can ever be considered equitable because the record is silent as to what the Husband’s retirement [income] is.” I agree. The husband may very well be able to afford to pay a substantial amount of periodic alimony; he may be unable to afford to pay any. I cannot determine from the record before us, however, whether either proposition is true. I therefore cannot conclude, as the main opinion does, that the trial court’s judgment dividing the property and reserving the question of alimony is not equitable. The appellant has the “affirmative duty of showing error upon the record.” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). I therefore see no alternative but to dissent, and I respectfully do so.

CRAWLEY, J., concurs.

      . The record does not indicate the husband's rank in the military or his specific income.


author: McMILLAN, Presiding Judge.

text:
    Dewey Kyle EASTERLING v. STATE.
    CR-01-1526.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Kimberly G. Kervin, Prattville, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Dewey Kyle Easterling, filed a Rule 32, Ala. R.Crim. P., petition, attacking his guilty plea convictions for two counts of first-degree sodomy and one count of first-degree sexual abuse. He was sentenced to two consecutive sentences of life imprisonment for the sodomy convictions and to 10 years’ imprisonment for the sexual abuse conviction, to run concurrently with the two sentences for the sodomy convictions. Easterling did not appeal his convictions. In this, his second Rule 32 petition, Easterling argued (1) that his guilty plea was not knowingly and voluntarily entered; (2) that he was denied effective assistance of trial counsel because, he said, counsel “misled” him as to the length of his prison sentences; and (3) that he was denied the opportunity to appeal his convictions through no fault of his own. The State moved to dismiss, arguing that the petition was barred by Rules 32.2(a)(3) and (5), Ala. R.Crim. P., and that Easterling had knowingly and voluntarily pleaded guilty to the charges. The trial court thereafter summarily denied the petition on the grounds the State alleged in its answer.

On appeal, Easterling argues only that the circuit court erred in denying his request to file an out-of-time appeal. He contends that he was not advised of the circuit court’s dismissal of his first Rule 32 petition, which also alleged that his guilty plea was not knowingly and voluntarily entered. Easterling maintains that, although the first petition was denied on October 30, 2001, he was not informed of the denial until December 21, 2001. He states that during this time, he wrote numerous letters to the circuit clerk’s office requesting to be advised of the status of his petition.

Because Easterling does not argue on appeal the remaining claims presented in his petition, he is deemed to have abandoned these issues, and this Court cannot address them. Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

However, it appears from the record that Easterling may be entitled to an out-of-time appeal from the dismissal of his previous Rule 32 petition. See Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d-(Ala.Crim.App.2002) (when an appellant was not notified of the denial of a Rule 32 petition within 42-day appeal period, a subsequent Rule 32 petition is the proper vehicle for obtaining an out-of-time appeal). Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), Thompson v. State, [Ms. CR-01-0285, June 28, 2002] — So.2d - (Ala.Crim.App.2002). Therefore, this cause is remanded to the Chilton Circuit Court with directions for that court to determine when Easterling received a copy of the order denying the first Rule 32 petition. If the circuit court finds that, as Easterling alleges, the 42-day period for filing a notice of appeal had run before he received a copy of the order, the court shall grant Easterling an out-of-time appeal. Due return shall be made within 28 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: WISE, Judge.

text:
    Tommie W. SANDERS v. STATE of Alabama.
    CR-01-1953.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Tommie W. Sanders, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   WISE, Judge.

The appellant, Tommie W. Sanders, appeals from the circuit court’s summary denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim.P., in which he attacked his 1983 guilty-plea conviction for possession of a pistol after having been convicted of a crime of violence, a violation of § 13A-11-72(a), Ala.Code 1975. Sanders was sentenced to 15 years’ imprisonment. No direct appeal was taken from this conviction.

On May 2, 2002, Sanders filed a Rule 32 petition alleging that the circuit court was without jurisdiction to accept his guilty plea because, he said, the indictment returned against him was illegal. Specifically, Sanders claimed that he could not be convicted of possessing a pistol after having been convicted of a crime of violence because, before his arrest for that offense, the Alabama Board of Pardons and Paroles (“the Board”) had restored his civil and political rights, thereby restoring his right to possess a pistol.

In support of his petition, Sanders alleged that he was convicted in September 1969 of robbery and was sentenced to 10 years’ imprisonment. In September 1976, Sanders was released on parole. Sanders claimed that in September or October 1979, he received a certificate from the Board (by United States mail) restoring his civil and political rights. In 1981, during the execution of a search warrant for marijuana, law-enforcement officials found a .38 caliber pistol in Sanders’s residence. Sanders was later charged in multiple indictments for drug offenses and for possessing a pistol in violation of § 13A-11-72(a), Ala.Code 1975.

After accepting Sanders’s guilty plea to all charges in the indictments, the circuit court sentenced Sanders, as a habitual felony offender, to concurrent sentences of 15 years’ imprisonment on the drug charges, and 5 years’ imprisonment for the possession-of-a-pistol conviction.

On June 10, 2002, the circuit court summarily denied Sanders’s Rule 32 petition as time-barred under Rule 32.2(c), Ala. R.Crim.P., without a response from the State. This appeal followed.

After reviewing Sanders’s argument and the caselaw he cites in support of his petition, this Court cannot affirm the denial of the petition on the basis that Sanders’s petition is time-barred.. Because Sanders’s claim is jurisdictional, see, e.g., Ex •parte Casey, 852 So.2d 175 (Ala.2002), it is not subject to the two-year limitations period set forth in Rule 32.2(c), Ala. R.Crim.P. Sanders cites United States v. Fowler, 198 F.3d 808 (11th Cir.1999), in support of his contention that he could not be indicted for violating the Alabama statute prohibiting possession of a pistol by a person convicted of a crime of violence. In Fowler, the defendant was convicted in 1972 for second-degree burglary and in 1975 received a “ ‘certificate granting restoration of civil and political rights’ ” from the' Board. Fowler, 198 F.3d at 809. The certificate of restoration contained no limitations on the defendant’s rights to carry, possess, or purchase firearms. In 1997, the defendant was charged in a multiple-count indictment that included'possession of a handgun after having been convicted of a felony offense. The United States Court of Appeals for the Eleventh Circuit held that the defendant’s 1972 conviction could not serve as a predicate offense for the crime of possessing firearms by a convicted felon, where his civil and political rights had been fully restored by the Board. Id.

Based on our review of Fowler and Sanders’s allegation set out in his Rule 32 petition, this Court must remand this cause for an evidentiary hearing. Moreover, because the circuit court summarily denied Sanders’s petition without a response from the State, the State has not refuted Sanders’s allegation; therefore, we must accept the averments in Sanders’s petition as true. Glover v. State, 531 So.2d 705 (Ala.Crim.App.1988).' Because Sanders’s allegation, if true, entitles him to relief, the circuit court erred in summarily denying Sanders’s claim as time-barred. Ex parte Boatwright, 471 So.2d 1257 (Ala. 1985).

Based on the foregoing, we remand this cause to the circuit court for further findings regarding Sanders’s allegation that the court was without jurisdiction to accept his guilty plea for possessing a pistol as a violent offender where, before the indictment for the offense of possession of a pistol, the Board had formally reinstated Sanders’s civil and political rights following his 1969 conviction. The return to remand shall contain a transcript of the proceedings and the circuit court should make specific findings of fact as required by Rule 32.9(d), Ala.R.Crim.P. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Section 13A-ll-72(a), Ala.Code 1975, provides: "No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control.”

      . The record indicates, and Sanders alleges, that eight indictments were returned by the grand jury for drug-related charges.

      .The Habitual Felony Offender Act was inapplicable in the possession-of-a-pistol conviction where Sanders's prior 1969 robbery conviction could not be used as a predicate offense. See United States v. Fowler, 198 F.3d 808 (11th Cir.l999)(prior conviction for violent crime could not serve as predicate offense where defendant received certificate from the Board restoring his political and civil rights).


author: SHAW, Judge.

text:
    Christopher G. HARRIS v. STATE of Alabama.
    CR-00-0818.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Robert B. Tuten, Huntsville, for appellant.
    William H. Pryor, Jr., atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
   SHAW, Judge.

In March 1996, the Limestone County grand jury returned a four-count indicL ment against the appellant, Christopher G. Harris. Count I of the indictment charged Harris with murder made capital because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; Count II of the indictment charged Harris with robbery in the first degree, see § 13A-8^41(a)(2), Ala. Code 1975; Count III of the indictment charged Harris with burglary in the first degree, see § 13A-7-5(a)(2), Ala.Code 1975; and Count IV of the indictment charged Harris with theft of property in the first degree, see § 13A-8-3(b), Ala. Code 1975. A jury found Harris guilty of the lesser-included offense of felony murder as to Count I of the indictment, guilty of robbery in the first degree as charged in Count II of the indictment, guilty of burglary in the first degree as charged in Count III of the indictment, and not guilty of theft of property in the first degree as to Count IV of the indictment. The trial court sentenced Harris to life imprisonment for each of his convictions, the sentences to run consecutively.

I.

On appeal, Harris contends that the trial court erred in denying his motions for a judgment of acquittal, made at the close of the State’s case and at the close of all the evidence, because, he says, the evidence was insufficient to sustain his convictions. Specifically, Harris argues that the State proved that he was present at the time of the crimes, but that his presence alone was not sufficient to establish his liability as an accomplice.

The evidence adduced at trial indicated the following. On February 21, 1996, at approximately 9:00 a.m., Angela Anderson dropped off her two-year-old daughter at the home of her mother, Barbara Ann Wilson, so that she could visit a friend in the hospital. Later that day, Anderson telephoned her mother, but there was no answer. When she drove by her mother’s home, she said, her mother’s car was not in the driveway, and she assumed that her mother had taken her daughter with her to visit a relative in Nashville, Tennessee. The following morning, Anderson again went to her mother’s home, hoping to find a note from her mother. When she arrived, her daughter came outside and greeted her. Anderson saw that the side door to the home was open and she went inside where she noticed that her mother’s purse was open and its contents were strewn across the floor. Anderson’s daughter then told her that Wilson was asleep and led Anderson to a guest bedroom where she found her mother’s body. Anderson then telephoned emergency 911.

■ Wilson’s body was lying on the bed in the guest bedroom of the home; Wilson was naked and had been gagged with a sock. Marks on her arms indicated that she had been bound, and the cord from the kitchen telephone was found underneath her body. Wilson also had three cuts on her left hand. A knife was found on a shelf on the headboard of the bed where Wilson’s body was discovered; a bloodstain was found on the kitchen floor; the home appeared to have been ransacked; and a television set, jewelry, and Wilson’s 1998 Cadillac automobile were missing from the premises. The autopsy report, which was introduced into evidence by agreement of the parties in lieu of testimony from the coroner, indicated that Wilson had died from smothering and that the manner of death was homicide.

Wilson’s Cadillac was later discovered in Kentucky and the State presented evidence indicating that Harris’s codefendant, Daryl Turner, had pawned Wilson’s television set at Bradford’s Jewelry and Pawn on the afternoon of February 21, 1996. Testimony indicated that Turner had worked at the same construction company where Wilson’s live-in boyfriend, L.T. Southard, worked. Before Harris’s trial, Turner was convicted of capital murder, rape, robbery, burglary, and theft in connection with the death of Wilson.

Tavares McCurley, Harris’s cousin and roommate, testified that on the morning of February 21, 1996, Turner came over to the house he and Harris shared. He testified that he was asleep on the couch when Turner arrived and that Turner woke him up and told him that “he had a lick.” (R. 208.) McCurley stated that he understood a “lick” to mean “when you’re about to go steal.” (R. 209.) Turner asked McCurley to go with him, but McCurley refused. McCurley stated that Turner then went into the bedroom where Harris was asleep and that he heard Turner ask Harris to go with him to do the “lick.” McCurley then heard Harris say, “Man, you’ve lost your damn mind.” (R. 210.) McCurley testified that Harris then came out of the bedroom and told him that he was going to get some cigarettes; McCurley said that Harris and Turner left the house at the same time. According to McCurley, Turner returned to the house later that morning, asked where Harris was, and then said, “Man, your cousin’s a bitch. He ran.” (R. 213.) When Turner returned, McCurley said, he was driving Wilson’s Cadillac and he told McCurley that he had killed Wilson. He also asked McCurley for his identification so that he could pawn a television set. McCurley refused to give Turner his identification and Turner then left. About 30 minutes later, McCurley said, Harris returned to the house. Harris initially said nothing about the crime; however, sometime later, he told McCurley what had happened. McCurley testified:

“Well, [Harris] told me what happened, that he had ran. He told me what [Turner] had done to the lady, and he said when he saw what was going on, he left. He said he was in the yard at first and [Turner] called him in the house. Once he seen what was going on, he said the little girl was in the room and he grabbed the little baby and took her to the other room and he ran.”

(R. 217.)

Dennis Wooten, a major with the Huntsville Police Department, testified that he interviewed Harris on February 26, 1996, regarding Wilson’s murder. Maj. Wooten stated that he read Harris his juvenile Miranda rights (Harris was 16 years old at the time of the crime); that Harris indicated that he understood those rights; and that Harris then gave a statement regarding Wilson’s murder. Maj. Wooten testified that Harris initially said that he did not know anything about Wilson’s murder and that he had nothing to do with Wilson’s murder. However, Harris later changed his story and admitted that he was at Wilson’s house, but he maintained that he was in the front yard when the murder occurred. As the interview continued, Maj. Wooten said, Harris eventually admitted that he was in the house at the time of Wilson’s murder. Maj. Wooten testified as follows about Harris’s statement:

“He said that earlier he was at home, or at his house where he stayed, and that D, they had called him, Daryl Turner, came back to his house and said he was going to do a lick. And as we talked about what a lick was and basically he was going to commit a crime; rob someone.
“He said that [Turner] had left the house and he remained there, and a few minutes later, something in the range of probably 20 or 30 minutes later, he decided to walk up to the store. And when he walked up to the store [to] buy some cigarettes for him and another person, he saw [Turner] on the phone, and [Turner] was talking to allegedly or apparently the victim on the phone, and that he overheard some of his conversation about coming up there, that he wanted to talk to her and get, pick something up or I think he might have dropped something off.
“He went into the store, he bought the cigarettes and came back out and when he came back out, he saw Daryl Turner near the yard or in the yard of the victim’s house.
“When he did that, he then proceeded up there and when he got in the yard, [Turner] was already inside. He goes inside of the house and he sees Ms. Wilson laid out on the floor without a shirt on, and [Turner] had her with a knife to her throat.
“And he said — he mentioned that there was another person in the house that was assisting on this thing in another part of the house saying that he was getting something or that he was taking something. He then said that he observed [Turner] take the lady, made her get up, kept with the knife to her throat and took her back to the bedroom.
“There was also a small child in the house from my understanding from what [Harris] said. And that he was concerned about the child being there.
“He said he walked to the doorway and he saw the other person in the house going through some drawers, and he then saw [Turner] get on top of the lady and start having sex with her at knife point.
“He then said that after [Turner] finished having sex with her that he started, he took a pillow and started smothering her. And as [Turner] was smothering her, the other person, I think his name was [T.R.], allegedly came over and held her hands down while [Turner] had sex with her, actually murdered, killed her, smothered her to death.
“He said that during the time, the little girl was apparently crying. He took the little girl from the room, put her into another bedroom somewhere in this time frame and came back to the doorway and watched a little more of this. And then he said he went into the kitchen to look for a phone because he was going to call the police and he said he found a phone but the cord was missing from the phone and so then he returned. Then, by the time he got back, they had apparently smothered the lady and she was dead.
“He said after this that apparently Daryl Turner took the lady’s Cadillac and he left, and I’m not sure. It’s been over four years ago, but I believe he said basically he left on foot from the house from there and [Turner] had taken the Cadillac.”

(R. 244-47.)

“Tn determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1038, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-2-23(2), Ala. Code 1975, provides that “[a] person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense ... [h]e aids or abets such other person in committing the offense.” “[I]n Alabama, an individual who is present with the intent to aid and abet in the commission of an offense is as guilty as the princip[al] wrongdoer.” Price v. State, 725 So.2d 1003, 1055 (Ala.Crim.App.1997), aff'd, 725 So.2d 1063 (Ala.1998). “The words ‘aid and abet’ encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary.” Henry v. State, 555 So.2d 768, 769 (Ala.Crim.App.1989). “The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence.” Miller v. State, 405 So.2d 41, 46 (Ala.Crim.App.1981) (citation omitted). “The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.” Walls v. State, 378 So.2d 1186, 1191 (Ala.Crim.App.1979). “Such facts as the defendant’s presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred.” Sanders v. State, 423 So.2d 348, 351 (Ala.Crim.App.1982). However,

“‘[t]he mere fact that a person witnesses a crime does not make him an accomplice.’ Nelson v. State, 405 So.2d 392, 397 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981). ‘The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime.’ Dolvin v. State, 391 So.2d 129, 133 (Ala.Cr.App.1979), reversed, 391 So.2d 133 (Ala.1980). However, ‘if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the jury may find the accused guilty.’ Dolvin, 391 So.2d at 137. ‘[Presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ 22 C.J.S. Criminal Law § 88(2)(d) (1961). Gibson v. State, 49 Ala.App. 18, 20, 268 So.2d 49 (1972).
“... ‘Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal. No particular acts are necessary to make one an aider or abettor.’ Scott v. State, 374 So.2d 316, 318-19 (Ala.1979) (citations omitted). However, ‘mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation.’ State v. Tally, 102 Ala. 25, 68, 15 So. 722, 738 (1894).
“Although mere presence at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, presence is a factor to be considered by the jury in determining the guilt of the accused because ‘mere presence does establish a “material fact, which is the opportunity of defendant to commit the offense.” ’ German [v. State], 429 So.2d [1138,] 1141 [ (Ala.Crim.App.1982) ].
“To make one accused of a crime an accomplice, ‘the State must adduce some legal evidence implying that he either recruited, helped or counseled in preparing the [crime] or took or undertook some part in its commission. Criminal agency in another’s offense is not shown merely by an exhibition of passivity.’ Pugh v. State, 42 Ala.App. 499, 502, 169 So.2d 27 (1964).”

Payne v. State, 487 So.2d 256, 261-62 (Ala.Crim.App.1986). See also Webb v. State, 696 So.2d 295 (Ala.Crim.App.1996).

Here, the evidence was sufficient to establish Harris’s role as an accomplice in the robbery, burglary, and murder. The evidence showed that Harris followed Turner into Wilson’s home, knowing that Turner was planning to rob someone that day; that Harris was present when Turner held a knife to Wilson’s throat, raped her, and then smothered her; that Harris took Wilson’s granddaughter out of the room where Turner was murdering Wilson, but came back to continue watching the murder; and that Harris and Turner left Wilson’s house at the same time, Turner driving away in Wilson’s automobile and Harris walking back home. In addition, although Harris claimed that, at one point, he had attempted to telephone the police only to discover the telephone cord was missing, it was undisputed that Harris did nothing to prevent Turner from murdering and robbing Wilson. The jury could have reasonably concluded from Harris’s actions before, during, and after the crimes that Harris was present to render aid to Turner if it became necessary. Therefore, the trial court did not err in denying Harris’s motions for a judgment of acquittal.

II.

As noted above, Harris was convicted of felony murder during a robbery, robbery in the first degree, and burglary in the first degree. However, Harris could not constitutionally be convicted of both felony murder during a robbery and robbery in the first degree based upon the same conduct. Because the same robbery formed the basis for the felony-murder conviction and for the robbery conviction, Harris’s convictions for both violated the principles of double jeopardy. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Peterson v. State, 842 So.2d 734 (Ala.Crim.App.2001)(opinion on return to remand); Dorsey v. State, [Ms. CR-97-1522, May 25, 2001]-So.2d -(Ala.Crim.App.2001); and Weaver v. State, 763 So.2d 972 (Ala.Crim.App.1998), rev’d on other grounds, 763 So.2d 982 (Ala.1999). Moreover, although Harris did not raise this issue in the trial court, nor does he raise it on appeal, “[t]he double jeopardy transgression in this case implicates the trial court’s jurisdiction to render a judgment.” Borden v. State, 711 So.2d 498, 503 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998), citing Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995). See also Grayson v. State, 824 So.2d 804 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala.2001), and hoggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000). The trial court lacked jurisdiction to adjudge Harris guilty of robbery in the first degree after he had already been adjudged guilty of felony murder based on that same robbery. Therefore, this case must be remanded for the trial court to vacate Harris’s conviction and sentence for robbery.

Based on the foregoing, Harris’s conviction and sentence for felony murder under Count I of the indictment and his conviction and sentence for burglary in the first degree under Count III of the indictment are affirmed. However, this case is remanded to the trial court with directions to vacate its judgment as to Harris’s conviction and sentence for robbery in the first degree under Count II of the indictment.

AFFIRMED AS TO CONVICTIONS AND SENTENCES UNDER COUNTS I AND III; AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . The trial court instructed the jury on both felony murder and intentional murder as lesser-included offenses of the capital-murder charge. The verdict form, however, did not distinguish between felony murder and intentional murder; it included only three options: guilty of capital murder, "guilty of the lesser included offense of murder,” and not guilty. (C. 30.) The jury returned a verdict finding Harris "guilty of the lesser included offense of murder” without specifically indicating whether it found Harris guilty of felony murder or intentional murder. In addition, the trial court adjudged Harris "guilty of the lesser included offense of murder” without indicating whether it was adjudging Harris guilty of felony murder or intentional murder. Both Harris and the State proceed on appeal on the assumption that Harris was found guilty of felony murder during a robbery. The only difference between murder made capital because it occurred during a robbery and felony murder during a robbery is the accused’s intent — capital murder involves an intentional killing while felony murder involves an unintentional killing. Given that the jury also found Harris guilty of robbery in the first degree under Count II of the indictment, the jury must have acquitted Harris of the capital-murder charge because it found that Harris did not intend to kill Barbara Ann Wilson, not because it found that Harris did not commit the robbery. Therefore, we conclude that Harris was convicted of felony murder during a robbery.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Rule 11, Ala.R.Juv.P.