author: PER CURIAM. MURDOCK, Judge,

text:
    John P. REYNOLDS, Jr.; Virginia Yvonne Reynolds; Peggy R. Watler; and Polly Gilley v. Roberta REYNOLDS.
    2000622.
    Court of Civil Appeals of Alabama.
    Feb. 1, 2002.
    Certiorari Denied June 14, 2002 Alabama Supreme Court 1010954.
    M. Mort Swaim, Foley, for appellants Peggy R. Watler and John P. Reynolds, Jr.
    Gregory L. Leatherbury, Jr., Bryan A. Thames, and Christopher M. Gill of Hand Arendall, L.L.C., Foley, for appellant the estate of John P. Reynolds, Sr., deceased.
    John Earle Chason of Chason & Chason, P.C., Bay Minette, for appellee.
   PER CURIAM.

John P. Reynolds, Sr., died on November 22, 1999, leaving four children — John P. Reynolds, Jr., Virginia Yvonne Reynolds, Peggy R. Watler, and Polly Ann Gil-ley (hereinafter collectively referred to as “the children”) — and a surviving spouse, Roberta Reynolds.

On December 15, 1999, Reynolds’s last will and testament was admitted to probate. The will provided, in pertinent part, that after specific bequests and administration expenses and claims had been paid, the remaining estate passed through the residuary portions of the will. The will provided for the creation of a qualified-terminable-interest-property trust (“QTIP trust”), with Roberta as the income beneficiary. The QTIP trust was to be funded with one-half of Reynolds’s estate. The other one-half of Reynolds’s estate was to be divided among the children. Upon Roberta’s death, the remainder of the assets funding the QTIP trust are to be divided among the children.

A QTIP trust is an estate-planning device that defers, rather than forgives, tax. Section 2056(a) of the Internal Revenue Code provides that the estate is allowed an estate-tax deduction for the value of any interest in property that passes or has passed from the decedent to the surviving spouse, commonly known as the marital deduction. For a QTIP trust to qualify for the marital deduction, the surviving spouse must be entitled to the entire income of the trust for life, the income must be paid at least annually, no person can have the power to appoint any part of the property to any person other than to the surviving spouse, and the executor must elect to qualify the property for the estate-tax marital deduction. § 2056(b), I.R.C. The QTIP trust established in Reynolds’s will met these requirements, and his executor made an election to qualify Roberta’s QTIP trust for the marital deduction.

A QTIP trust is useful in second marriages, as in the instant case, where the testator wants to provide the surviving spouse with an income for life, while paying as little tax as possible so as to maximize the assets available to support the surviving spouse, with the remainder to go to the testator’s children from the first marriage upon the surviving spouse’s death. The remainder beneficiaries will be assured of receiving the trust property at the death of the surviving spouse rather than having to rely on the surviving spouse to give the property to the remaindermen.

On February 14, 2000, Roberta petitioned for an elective share, pursuant to § 43-8-70(a), Ala.Code 1975. The elective share statute allows a surviving spouse to choose between taking that which is provided in his or her spouse’s will or, instead, to elect to take the statutory amount, not to exceed one-third of the deceased’s estate. Roberta moved that the case be removed from the probate court to the Circuit Court of Baldwin County, and her motion was granted.

After conducting a hearing, the trial court determined that the value of Reynolds’s gross estate, before deducting any specific bequests, administrative expenses, or claims, was $6,564,589. Specific bequests amounted to $240,674. Administrative expenses and claims amounted to $354,920. The trial court refused to deduct estate tax in determining the net value of Reynolds’s estate for purposes of computing Roberta’s elective share. The court determined that Roberta’s elective share was $2,065,703.67, i.e., one-third of Reynolds’s net estate. The court determined that the QTIP trust was to be funded with $2,978,755.50, which was one-half of Reynolds’s residuary estate (i.e., that portion of the estate remaining after the deduction of certain administrative expenses, claims, and the specific bequests set out in the will). For purposes of valuing the property to be used to satisfy Roberta’s elective share, the court also accepted the one-half valuation factor set out in § 43-8-75 in valuing Roberta’s present interest in the QTIP trust and valued her interest at $1,489,377.75. The court held that because the present value of the QTIP trust ($1,489,377.75) was less than the elective share ($2,065,703.67), then Roberta should receive the benefits of the QTIP trust plus the amount by which the amount of the elective share exceeded the amount of the QTIP trust. The children appealed. The supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The children argue that the trial court erred in calculating Roberta’s elective share by failing to deduct estate taxes from Reynolds’s gross estate before calculating the elective share. They also argue that the trial court improperly refused to vary from the rebuttable presumption of “one-half’ in § 43-8-75 in valuing Roberta’s interest in the QTIP trust.

The parties agree that the exact amount of Roberta’s elective share and her interest in the QTIP trust cannot be precisely calculated, because of uncontrollable factors, such as the expenses of the estate and controversies unrelated to this appeal. However, it is the method of determining those amounts that is at issue.

Section 43-8-70 provides:

“(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of:
“(1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or “(2) One-third of the estate of the deceased.
“(b) The ‘separate estate’ of the surviving spouse shall include:
“(1) All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute;
“(2) All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent; and
“(3) All income and other beneficial interests:
“a. Under a trust;
“b. In proceeds of insurance on the life of the decedent; and
“c. Under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
“(c) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.”

The supreme court held in Brakefield v. Hocutt, 779 So.2d 1165, 1166 (Ala.2000):

“Brakefield argues that in addition to the homestead allowance, exempt property, and family allowance, the circuit court should have deducted the allowable claims against the estate before determining [the widowjs elective share.... As this Court explained in Barksdale v. Barksdale, 551 So.2d 1006 (Ala.1989), the proper method of calculating the surviving spouse’s elective share is to deduct the homestead allowance, exempt property, family allowance, ‘and allowed claims against the estate’ from the decedent’s total estate, then divide the remaining amount by three. 551 So.2d at 1008. To hold otherwise would exempt the surviving spouse’s elective share from, and give it priority over, the claims of creditors and other allowable claims against the estate, notwithstanding that the statute providing for the elective share, unlike the statutes providing for the homestead allowance [§ 43-8-110], exempt property [§ 43-8-111], and family allowance [§ 43-8-112], does not manifest an intention to do so. See Ala.Code 1975, § 43-8-70(a).”

In Brakefield, the court held that the circuit court had erred in calculating the surviving spouse’s elective share, by failing to deduct allowed claims against the estate. The court noted that the Legislature has specifically exempted the homestead allowance, exempt property, and the family allowance from the elective-share calculation. The supreme court held that “allowed claims against the estate” must be subtracted before the elective share is calculated. However, this does not mean that the supreme court intended for a spouse’s elective share to be computed after deducting federal estate tax.

The United States Court of Appeals for the Fifth Circuit held that under Alabama law, estate taxes are not a preferred debt of the decedent’s estate because they arise only upon the decedent’s death and that such taxes do not qualify as debt that should be deducted before the spouse’s share on dissent from the will (the precursor to the elective share) is calculated. Cox v. United States, 421 F.2d 576 (5th Cir.1970). The court in Cox stated:

“[Ala.Code 1940 (Reeomp.1958), tit. 51, § 449,] has obviously placed Alabama among those states following the general rule that the burden of the estate taxes shall be on the general estate rather than being apportioned among the beneficiaries.
“The government, however, contends that in this case because the wife dissented from the will and took her intestate share she was a residuary legatee and therefore chargeable with her proportionate share of the estate tax. We think this argument is without merit.
“The obvious reason for the general rule of nonapportionment of estate tax burdens is to protect specific legacies from reduction due to estate taxes. Alabama has chosen to follow this rule. Title 51, § 449. Further, under Alabama law the widow’s marital share upon dissent from her husband’s will is treated with greater protection than specific bequests which lapse if necessary when she elects to take against the will. Merchants’ National Bank of Mobile v. Hubbard, 1931, 222 Ala. 518, 133 So. 723, 74 A.L.R. 646. Over a century ago the Alabama Supreme Court expressed its reverence for the widow’s rights in Perrine Ex’rs v. Perrine, 1860, 35 Ala. 644:
“ ‘Lord Coke said, that “three things are favored in law — life, liberty and dower,” ... It is not dower itself, however, but the purpose of dower— namely, the support of the widow— which the law favors. And statutes which have for their design the support of the husband, must be regarded with the same favor, and administered with the same liberality extended to dower; and for the same reason, that the widow is a favorite of the law.’ 35 Ala. at 647.
“It is unthinkable that Alabama which protects specific bequests from reduction due to the estate tax luould not also protect the more favored marital share of the tuidow.
“Furthermore, Alabama has provided under Title 16, § 10[, Ala.Code 1940 (Recomp.1958),] that the wife’s marital share of personalty descends subject only to the debts and charges against the estate. Title 61, § 218[, Ala.Code 1940 (Recomp.1958),] lists the order and preference of estate debts and specifically includes taxes only to the extent that they were assessed prior to the decedent’s death. The federal estate tax liability, as the government admits, arises only upon the decedent’s death. It therefore does not qualify under Title 61, § 218 as a debt which is to be paid before the wife’s one-third marital share is computed under Title 16, § 10.[ ] This demonstrates a clear legislative policy on the part of Alabama that the wife’s distributive share of her husband’s estate should not be burdened with any liability for the federal estate tax.”

421 F.2d at 584-85 (emphasis added; footnotes omitted).

Relying on Cox, the Alabama Supreme Court has held that the widow’s share of an estate, which qualifies for the marital deduction allowed under federal estate tax law, was not subject to estate taxes. Moss v. Horton, 544 So.2d 898 (Ala.1989). In Moss, the decedent died intestate. The issue was whether the widow’s share and the children’s share should be charged equally with the federal and state estate taxes or whether the sums were to be charged solely to the shares of the children. The supreme court held that “consistent with Alabama statutes and with a long line of state and federal cases,” the widow’s share of the estate shall not be burdened with estate taxes. Moss, 544 So.2d at 899. The court held that this is the case whether the decedent died testate or intestate. The court noted that the estate was able to benefit from the full marital deduction allowed under the federal estate tax law and that that share was not subject to estate taxes. We find Moss persuasive.

Roberta’s elective share qualifies for the unlimited marital deduction under 26 U.S.C. § 2056(a). The estate will receive a benefit from the reduction of the size of the taxable estate by the amount of the marital deduction. The elective share generates no estate tax liability and, therefore, should not be burdened by computation of that tax.

The children also argue that the trial court erred in holding that they failed to rebut the presumption of § 43-8-75 — that the valuation of the surviving spouse’s interest in the QTIP trust is one-half the value of all of the QTIP trust assets. They presented evidence indicating that the most appropriate method to value the QTIP trust in this case was to use the mortality tables set forth in the United States Treasury Regulations, § 20.2031-7(d)(7), and the discount rate promulgated pursuant to 26 U.S.C. § 7520.

When Congress adopted the Economic Recovery Tax Act of 1981 (“ERTA”), it substantially changed estate planning with regard to the marital deduction. Before ERTA, to qualify for a marital deduction, the spouse had to give the surviving spouse, at a minimum, not only an income interest for life in the trust but also a general power of appointment. This meant that the surviving spouse could dispose of the trust assets during his or her lifetime without regard for the remainder-men. Also under pre-ERTA law, the amount of the marital deduction could not exceed half of the spouse’s net estate.

Beginning in 1982, a spouse could, for the first time, create a trust for the exclusive benefit of the surviving spouse, without providing any general power of appointment to the surviving spouse. This is the QTIP trust, which allows the testator/spouse to control the remainder interest in the property upon termination of the surviving spouse’s life interest, i.e., the surviving spouse does not have a general power of appointment. ERTA also eliminated the limit on the amount of the marital deduction.

In 1982, the Alabama Legislature adopted § 43-8-75, which provides:

“(a) In the proceeding for an elective share, values included in the estate which pass or have passed to the surviving spouse, or which would have passed to the surviving spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the estate. For purposes of this subsection, the electing spouse’s beneficial interest in any life estate or in any trust shall be computed as if worth one-half of the total value of the property subject to the life estate, or of the trust estate, unless higher or lower values for those interests are established by proof; provided, however, that, to the extent that the electing spouse’s beneficial interest is a life estate or is an interest in a trust and is coupled with a general power of appointment (whether exercisable by deed or by will or by either), the beneficial interest shall be computed as being equal to two-thirds of the total value of the property subject to the life estate, or of the trust estate, with respect to which the general power of appointment exists.
“(b) Remaining property of the estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the estate in proportion to the value of their interests therein.”

(Emphasis added.)

The Commentary to § 43-8-75 states, “The second sentence of subsection (a) provides a rebuttable presumption of the value of a life estate or an interest in a trust, when this form of benefit is provided for an electing spouse by the decedent’s plan.” The issue in this case is whether the children rebutted the presumption that Roberta’s interest in the QTIP trust created by Reynolds’s will should be valued at one-half. What § 43-8-75 envisions is that there must be a comparison between the elective share and an estimate of how much income the spouse may receive under the provisions of the will. The value of Roberta’s interest in the QTIP trust is important in determining the funding of her elective share. If her interest is worth more than her elective share, then Roberta would be entitled to the QTIP trust and no more. However, if it is worth less, then Roberta would be entitled to the QTIP trust plus additional property from the estate to make up the difference.

The children argue that there is no precise method for valuing a life interest in a QTIP trust. When attempting to value a future stream of income, no valuation method can be precise, because no one can predict the future. However, they argue that using the mortality tables and the discount rate is more appropriate than arbitrarily valuing the trust at one-half the current value of its assets. They contend that under the mortality tables, Roberta, who is 66 years old, has a life expectancy of 18.4 years. They further contend that the discount rate of 7.4% applies, and that Roberta’s interest should be valued at $1,884,811.

At the hearing, Xavier Hartmann, a co-executor of the estate, who is also an accountant, testified that Roberta’s interest in the QTIP trust should be valued by using the mortality tables and the discount rate provided in 26 U.S.C. § 7520. He stated that applying those methods rather than the one-half value would be fair to Roberta and to the children. Hartmann testified that using the one-half value provided for by § 43-8-75 would not be the most accurate way to value Roberta’s interest. He stated that in order for Roberta to have a one-half interest in her life estate, she would have had to be between 74 and 75 years old when the will was probated. He further stated that it makes economic sense to consider the age of the individual in valuing a life estate, rather than using an arbitrary figure.

Hartmann testified that the discount rate from 26 U.S.C. § 7520 is commonly used by accountants in valuing annuities, life estates, and life interests. He stated that the discount rate is a figure published monthly by the Federal Government and that it fluctuates close to the prime interest rate. Hartmann testified that he used the discount rate applicable on the date of Reynolds’s death.

Steven Slaughter, a certified public accountant, testified that in valuing the life interest, for purposes of determining the value of Roberta’s interest in the QTIP trust, he would use the one-half method set out in § 43-8-75. On cross-examination, he stated that generally, .to estimate the present value of an income stream, he would use the factors of life expectancy, the amount of the principal, and the interest rate. However, he stated that a one-half value should be used, because of the statute. He further stated that the life-expectancy table and the interest rate used by the executor were arbitrary. However, he admitted that the one-half valuation set out in the statute was also arbitrary and did not reflect the economic reality of the value of the trust.

Malcolm Macphee, a pension-plan administrator, testified that if he were trying to determine Roberta’s present value in the income stream in the trust, he would set up a mortality table. He stated that he would not use the “generic” mortality table used by the executor, but instead would use a mortality table that took into consideration the person’s occupation. For example, a professional would have a lower mortality rate than someone in a high-risk occupation. Macphee testified that he would use a lower interest rate than that used by the executor. He also testified that he would factor in a number for inflation.

We cannot say the trial court abused its discretion in applying the one-half presumption of § 43-8-75. The trial court determined that the children failed to rebut the presumption. Although both Hartmann and Macphee opined that they would use mortality tables and a discount rate, their opinions conflicted on which tables and rates to use. Particularly considering the conflicting evidence regarding the accuracy of the valuation method used for federal estate tax purposes, as advocated by the children, the trial court could have concluded that the children failed to establish a higher value for Roberta’s interest as required by § 43-8-75.

We note that because of the speculative nature of predicting the future, parties are likely to present differing evidence regarding the value of a trust interest or life interest in property. Tables developed by the Internal Revenue Service and used by accountants in establishing the values for annuities, life estates, and life interests are commonly accepted and used by professionals in the financial community. The three witnesses who testified regarding valuation of the trust acknowledged the use of published interest rates and actuarial tables in their professions for valuing life interest in property. Those witnesses admitted that the value determined by using the federal government’s published interest rates and actuarial tables is somewhat speculative. They also acknowledged that the 50% value established in § 43-8-75 is also speculative. The object is to choose a method of valuation that most fairly represents the actual value of a spouse’s interest. The use of published interest rates, the Internal Revenue Service’s annuity tables, and other means of approximating valuations may not result in a flawless establishment of the value of an interest, but in most situations those means of valuation may come closer to establishing that value than the use of the general percentage set forth in § 43-8-75.

Although we believe in most cases that determining the value of an interest in property through methods other than the 50% valuation method set forth in § 43-8-75, is likely to provide a better way of establishing the value of a spouse’s interest in a life estate or trust that is not subject to a power of appointment, in light of the evidence before the trial court, we accept the trial court’s decision to apply the one-half presumption of § 43-8-75 in valuing Roberta’s interest in the QTIP trust in the present case.

AFFIRMED.

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

MURDOCK, J., concurs specially.

CRAWLEY, J., concurs in the result.

MURDOCK, Judge,

concurring specially.

I concur in the majority opinion and write separately to make several additional observations regarding the children’s various arguments for the deduction of estate taxes from the estate before calculation of the surviving spouse’s elective share.

The children essentially contend that Brakefield v. Hocutt, 779 So.2d 1165 (Ala.2000), stands for the propositions that (i) all claims and administrative expenses must be subtracted from the estate before the elective share is calculated and that (ii) federal and state estate taxes are to be included in these categories of deductions. In Brakefield, however, the Alabama Supreme Court merely adhered to precedent that requires a probate court to deduct “allowed claims” against the estate before calculating the elective share. 779 So.2d at 1166 (citing Barksdale v. Barksdale, 551 So.2d 1006 (Ala.1989)). Neither Brakefield nor Barksdale provide any meaningful guidance as to what constitutes an “allowed claim” against an estate.

The children also argue that, “[i]f our legislators had wanted to provide special protection for the elective share, they knew how to do so.” To make this argument, the children point to language such as that found in Alabama Code 1975, § 43-8-110, which states that the “homestead allowance is exempt from and has priority over all claims against the estate.” (Emphasis added.) See also Ala.Code 1975, § 43-8-111 and -112 (containing similar language as to the “exempt property allowance” and the “family allowance,” respectively). The children’s rebanee on such language is misplaced.

Though state law does determine which property is used first to pay federal estate taxes (see Cox v. United States, 421 F.2d 576 (5th Cir.1970)), the manner of calculating the federal estate tax, and whether the personal allowances described in §§ 43-8-110, -111, and -112, or the elective share, are completely exempt from the payment of the federal estate-tax claim, are questions of federal law. I therefore do not believe that the Alabama legislature intended that “claims,” as that term is used in §§ 43-8-110, -111, and -112, was to include federal estate taxes. Thus, the children’s attempted juxtaposition of the presence of this language in these personal-allowance statutes and the absence of such language in Alabama’s elective-share statute is unavailing.

The Alabama Supreme Court repeatedly has cited with approval the opinion of the United States Court of Appeals for the Fifth Circuit in Cox v. United States, 421 F.2d 576 (5th Cir.1970), discussed in the majority opinion. See Cleveland v. Compass Bank, 652 So.2d 1134 (Ala.1994); Moss, supra; Byars v. Mixon, 292 Ala. 657, 299 So.2d 259 (1974); and Davis v. Davis, 289 Ala. 313, 267 So.2d 158 (1972). In doing so, that court has not distinguished between the issue of where estate taxes fall in the elective-share calculation and the issue of who will pay the taxes. Nor, as discussed below, do reported cases suggest such a distinction in regard to the calculation of a spouse’s share of an intestate estate. This undoubtedly is because the size of the elective share is mathematically the same regardless of whether estate taxes are deducted before the one-third calculation is made or the one-third calculation is made first, followed by a “charging” of the elective share with its proportionate share of estate taxes. See Douglas A. Kahn, The Federal Estate Tax Burden Borne By A Dissenting Widow, 64 Mich. L.Rev. 1499 (1966).

The Alabama Supreme Court in Moss v. Horton articulated well-established principles of Alabama law:

“[Section 40-15-18] directs that the incidence of the burden of federal estate tax shall fall upon the residue of the estate and that the marital deduction shall not be burdened with any part of the estate tax. It is the rule that the burden of payment of estate taxes will fall upon the residue so that the estate will be able to take advantage of the maximum marital deduction.”

544 So.2d at 900 (emphasis added; some citations omitted).

It is clear that property qualifying for the marital deduction shall be the last to bear the burden of any estate-tax payment, unless the decedent’s will specifically provides otherwise. See Moss; Elliott v. Elliott, 349 So.2d 1092 (Ala.1977); Byars v. Mixon, 292 Ala. 657, 299 So.2d 259 (1974); Davis, supra; and Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). See also Cox, supra; Snodgrass v. United States, 308 F.Supp. 440 (N.D.Ala.1968), aff'd, 427 F.2d 150 (5th Cir.1970); and Robertson v. United States, 281 F.Supp. 955 (N.D.Ala.1968). If estate taxes are deducted before calculating the spouse’s elective share, then the diminution of the surviving spouse’s share will be the same at that point as if the spouse had paid a proportionate share of the estate taxes. This would accomplish indirectly what may not be done directly.

Section 43-8-70, Ala.Code 1975, defines the spouse’s elective share simply as “one-third of the estate of the deceased.” (Emphasis added.) Section 43-8-70 is part of Alabama’s Probate Code (see Ala.Code 1975, §§ 43-8-1 et seq.) and “the estate” referenced therein by Alabama’s legislature finds its meaning in state law, including the concept of the “probate estate.” See Russell v. Russell, 758 So.2d 533 (Ala.1999); Ala.Code 1975, § 43-1-1(8) (defining “estate” for purposes of the Probate Code as “the property of the decedent whose affairs are subject to this chapter”). The children argue, however, that “the estate” referenced in § 43-8-70 is one that is determined only after the deduction of estate taxes, which are a function of a federally prescribed “taxable estate” that includes both probate and nonprobate property. If this court were to adopt the children’s position, we would be merging concepts from federal and state law that were not meant to be merged.

Indeed, because the federal taxable estate is comprised of both probate and non-probate transfers, the taxable estate can be, and in many instances will be, much larger than the probate estate. Because federal estate-tax rates are so substantial, ranging up to 55% of the taxable estate, the amount of estate taxes generated from a taxable estate that includes both probate and nonprobate transfers could easily be larger than the amount of the probate estate itself, and thereby could reduce the elective share to zero. Ironically, this result could occur even though the assets that otherwise would be transferred to the surviving spouse would, themselves, create no estate taxes, and even though one of the principal reasons that such assets are transferred to a surviving spouse is to prevent the taxation of those assets at the death of the decedent. See 26 U.S.C. § 2056.

From a federal estate-tax law standpoint, the very purpose of the marital deduction is to allow a decedent to reduce estate taxes for the benefit of the decedent’s heirs. This is accomplished by providing for the deduction of amounts passing to a surviving spouse, including an elective share, before the calculation of estate taxes. See id. Deducting estate taxes before determining the share passing to the spouse would increase estate taxes to the detriment of the decedent’s heirs. It would turn the purpose served by the longstanding provision for a marital deduction, and estate planning based thereon, on its head.

      . As noted above, the Brakefield court cites Barksdale v. Barksdale, 551 So.2d 1006 (Ala.1989). In Barksdale, the court held that the proper method for calculating the widow's elective share of the deceased's total estate was one-third of the total value of the estate, less exemptions for homestead, exempt property, family allowances, and allowed claims against the estate. Then, to that amount were added the widow's exemptions, plus interest earned on money to which she was entitled, minus the widow's share of expenses of administration of the estate and other estate indebtedness for insurance and "taxes.” The opinion does not specify what the "taxes” were, but, the taxes ($237.41) were not deducted before the elective share was calculated.

      . This provision is now found at § 43-2-371.

      . Title 16, § 10, has been replaced by § 43-8-41, which defines the intestate share of the surviving spouse.

      . The discount rate is the interest rate used to determine present values.

      . The Alabama Supreme Court in Barksdale actually placed the "taxes” under consideration in that case in the category of "other indebtedness,” which was not deducted from the estate before calculation of the elective share. 551 So.2d at 1008. Still, the Barks-dale opinion does not reveal the nature of the "taxes” at issue in that case.
      In other contexts, however, involving both testate and intestate estates, the Alabama Supreme Court has indicated that estate taxes are not in the same classification as other claims, and also are not classified as debts and expenses of administration. See, e.g., Moss v. Horton, 544 So.2d 898 (Ala.1989) (affirming trial-court judgment that deducted certain charges and administrative expenses from spouse's intestate share, but excluded estate taxes); and Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972) (for purposes of payment, treating debts, claims, and expenses of administration in a different category than estate taxes in the context of a will).
      At least two Probate Code provisions use similar terminology in a way that suggests that "allowed claims” would not include estate taxes. Alabama's “nonclaims statute” provides that "[a]ll claims against the estate of a decedent ... must be presented within six months after the grant of letters ... and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited.” Ala.Code 1975, § 43-2-350(b) (emphasis added). Section 43-2-60, Ala.Code 1975, states that "[t]he personal representative must give notice ... [to] all persons having claims against the estate to present the same within the time allowed by law.” (Emphasis added.) Thus, in the context of "allowance,” Alabama's nonclaims statute utilizes the word “claims” to refer to matters that must be presented to the personal representative within the nonclaims period. Federal and state estate taxes do not fall in this category. Estate tax returns are not even due until nine months after a decedent’s death. 26 U.S.C. § 6075.
      It may also be noted that, except where applicable state statutes expressly require otherwise, the courts in most states have held that estate taxes are not to be deducted from the estate before calculation of elective shares. See In re Estate of Shapiro, 380 N.W.2d 796, 801 n. 1 (Minn.1986).

      . In addition, Moss highlights the inconsistency in the treatment of testate estates and intestate estates that would result from deducting estate taxes before calculating the spouse’s elective share. As with the elective-share statute relating to testate estates, the intestacy statute does not contain any language expressly providing that the spouse's share is exempt from claims against the estate. See Ala.Code 1975, § 43-8-41. The dispute in Moss arose because the spouse's intestate share had been calculated based upon the entire estate (minus an administrative expense) and then deducted before calculation of estate taxes. In making these calculations in this order, "[t]he trial court correctly held that the estate properly took advantage of the maximum marital deduction allowed under the Federal estate tax law.” 544 So.2d at 899. If the approach advocated by the children in the present case were to be followed, however, testate estates will be reduced by estate taxes before elective shares are calculated. There is no basis in the text of our statutes, nor any rationale in our caselaw or any policy reason, for such a different result for testate and intestate estates. The elective share is no less intended for the protection of the surviving spouse than is the spouse’s intestate share.

      . In Russell v. Russell, 758 So.2d 533 (Ala.1999), the Alabama Supreme Court confirmed that "the estate,” for purposes of calculating the elective share, is indeed based upon the decedent’s estate under Alabama’s Probate Code (i.e., the "probate estate”), and does not include nonprobate property such as lifetime transfers. In light of this rejection by Alabama of the concept of an "augmented estate” for probate purposes, it is important to note that the essential difference in the Alabama "probate estate” and the federal-estate tax "taxable estate” is that the taxable estate, like the augmented estate under the Uniform Probate Code, includes certain lifetime transfers and other nonprobate property.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Michael E. FEAGIN v. Rickey STOKES et al.
    2001007.
    Court of Civil Appeals of Alabama.
    March 15, 2002.
    Rehearing Denied June 28, 2002.

      Michael E. Feagin, pro se.
    Charles D. Decker, Dothan, for appel-lees.
   PITTMAN, Judge.

Michael E. Feagin appeals to this court from a judgment dismissing his complaint. We reverse and remand.

On June 19, 2000, Feagin, who was incarcerated in the Pike County Jail on various charges against him in Pike and Coffee Counties alleged that he reached an agreement with Rickey Stokes, a bail bondsman, about posting bail for all of the charges in both counties totaling the amount of $34,600. Feagin claims that, although he did not have the cash to pay the 10% premium, Stokes agreed to accept his 1991 Ford Explorer Sport as collateral. Feagin claims that he and Stokes agreed that the bonds would be posted in both counties, and in the event that the bonds were not posted, the vehicle would be returned to Feagin’s wife at their place of residence.

On December 12, 1999, Stokes picked up the vehicle from Feagin’s wife at his residence. It was not until January 6, 2000, that Andrew Garner, an agent of A-Advantage Bail Bonds, arrived at the Pike County Jail to post, on Feagin’s behalf, the bonds in Pike County which totaled the amount of $32,500. The agent allegedly informed the personnel at the Pike County Jail that, due to the lateness of the hour, he would return the following day and post the remaining bonds in the adjoining Coffee County. Feagin was then transferred to Coffee County because his bonds had been posted in Pike County. No bail bondsman ever came to Pike County to post bond for him, and his vehicle was never returned to his wife, as he claims that he and Stokes had agreed it would be in the event all of the bonds were not posted and he remained incarcerated.

On June 19, 2000, Feagin, pro se, sued Rickey Stokes, both individually and as the owner of A-Advantage Bail Bonds, and Andrew Garner, as Stokes’ agent, for breach of contract seeking to recover $9500, which was the amount that Feagin claims that his vehicle was worth. On August 10, 2000, Feagin served interrogatories on Stokes and on September 6, 2000, on Feagin’s motion, the trial court ordered Stokes to respond to Feagin’s discovery requests. On November 17, 2000, Feagin, pursuant to Rule 36, Ala. R. Civ. P., served on Stokes requests for admissions. A hearing was held on all pending motions on November 20, 2000. Feagin was unable to attend the hearing due to his incarceration, and the trial court dismissed his complaint for failure to prosecute.

On December 18, 2000, Feagin mailed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. When the Houston County Clerk received the motion in the mail, apparently she inadvertently docketed it on the date she received it which was January 5, 2001. The January 5, 2001, docket date on Feagin’s postjudgment motion made his motion untimely pursuant to Rule 59, which requires that postjudgment motions be filed no later than 80 days after the final judgment is entered. In order to preserve his right to appeal, Feagin appealed to this court (appeal number 2000450) on January 5, 2001.

On January 12, 2001, the trial court presumably recognized the error of the clerk’s office in failing to properly docket the postjudgment motion on December 18, 2000, the date it was mailed, pursuant to Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); and Veteto v. Yocum, 793 So.2d 814 (Ala.Civ.App.2001), and the trial court granted Feagin’s postjudgment motion. Thereafter, on Feagin’s motion, this court dismissed his appeal number 2000450.

On March 21, 2001, the trial court restored Feagin’s action to its active docket and set the matter for trial on May 21, 2001. On March 29, 2001, Feagin filed a pleading entitled a “petition for writ of habeas corpus ad testificandum” requesting that he be transferred to the Houston County courthouse on the date of his trial for the purpose of prosecuting his civil complaint. On April 17, 2001, the trial court denied this petition.

In the month prior to his trial date, Feagin propounded additional discovery to the defendant, Stokes. On April 9, 2001, he served a request for interrogatories, and on April 12, 2001, he served requests for admissions. Further, on May 10, 2001, Feagin filed, pursuant to Rule 31, Ala. R. Civ. P., a request to take a deposition of a confined person upon written questions. On May 14, 2001, Feagin filed a motion for summary judgment along with a brief containing a narrative fact summary, and an argument portion containing appropriate citations to authority and supporting sworn affidavits from witnesses who claimed to have been present when Stokes and Feagin reached an agreement on the terms of Feagin’s bail bond and attested to the terms of the agreement entered into between Stokes and Feagin. In addition Feagin’s summary-judgment motion was supported by what purported to be a deposition upon written questions which was properly notarized but for which leave of court had not been granted pursuant to Rule 31(a), Ala. R. Civ. P.

On May 14, 2001, the case action summary notes reflect a notation signed by the trial court judge that all pending motions would be ruled upon at the hearing which was set for May 31, 2001. The next notation on the case action summary sheet reads: “Plaintiff failing to appear or further prosecute case, complaint dismissed with prejudice. Notify.” This notation is dated and signed by the trial court judge. On June 11, 2001, Feagin filed with the trial court, a motion pursuant to Rule 59, Ala. R. Civ. P., contending that the trial court abused its discretion in dismissing his complaint for failure to prosecute when he had sought, unsuccessfully, to secure his presence at trial, and had also attempted, in vain, to obtain leave of court to preserve his testimony for trial pursuant to Rule 31 and Rule 32(a)(3)(c), Ala. R. Civ. P. The trial court denied his motion on June 13, 2001. Feagin appealed to this court on June 29, 2001.

On appeal, Feagin contends that the trial court abused its discretion for dismissing his complaint for failure to prosecute. We agree. “Rule 41(b), Ala. R. Civ. P., provides from the dismissal of an action for want of prosecution. A 41(b) dismissal is a matter within the discretion of the trial court, and its judgment will be reversed on appeal only if there is an abuse of that discretion.” M.J.F. v. J.W., 680 So.2d 302 (Ala.Civ.App.1996), citing Belser v. Belser, 575 So.2d 1139 (Ala.Civ.App.1991).

Our supreme court has held that “a prisoner has no right to be removed from his place of confinement in order that he might appear and testify in his own behalf in a civil suit’ unrelated to his confinement.” Clements v. Moncrief, 549 So.2d 479, 481 (Ala.1989). The Clements court held that the “ ‘proper course for [an incarcerated party] is to take his own oral or written deposition under Rule 30 or 31, A.R.C.P., to be used at trial as specifically provided in Rule 32(a)(3)(c), A.R.C.P.’ ” Id., (quoting Hubbard v. Montgomery, 372 So.2d 315 (Ala.1979)).

The record reflects that from his prison cell, Feagin did everything in his power to prosecute the civil claim he had filed. Both Rules 30(a) and 31(a), Ala. R. Civ. P., allow an incarcerated party to offer deposition testimony upon oral or written examination, in support of a claim, upon obtaining leave of court. In this case the trial court scheduled all pending motions, including Feagin’s motion which was filed on May 10, to have his deposition testimony taken upon written examination pursuant to Rule 31, Ala. R. Civ. P. The record does not reflect that Feagin’s motion to have his testimony preserved was ever considered by the trial court. Therefore, we conclude that the trial court effectively thwarted Feagin from following the “proper course” specifically laid out by our Supreme Court for prisoners who need to present evidence on their own behalf in order to prosecute their civil claims. Clements, supra.

Accordingly, the trial court’s judgment is reversed and remanded to conduct proceedings consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY and MURDOCK, JJ„ concur.

YATES, P.J., and THOMPSON, J., concur in the result.


author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    C.P. v. W.M. and J.M.
    2010068.
    Court of Civil Appeals of Alabama.
    June 14, 2002.

      John A. Tinney, Roanoke, for appellant.
    Dianne James Davis, Alexander City, for appellees.
   MURDOCK, Judge.

This is the second appeal in this case. On June 22, 2001, this court reversed the previous judgment of the trial court awarding custody of D.M.D. to his paternal grandparents, W.M. and J.M., over the objection of C.P., the child’s mother; we reversed because the trial court did not make an express finding in its judgment that the mother was unfit. C.P. v. W.M., 806 So.2d 395 (Ala.Civ.App.2001). That opinion quoted the trial court’s previous judgment at some length:

“ ‘From the evidence and testimony it has been shown that these grandparents have played a significant role in the life of this child. The child has spent a large portion of his life with the grandparents. In summation, the mother’s life has been very unstable and she has lived in several different places with different men. One relationship in particular was destructive both for the mother and the child. In that relationship both were exposed to dangerous situations, and the mother showed a reluctance to leave that relationship behind.
“ ‘The mother had left the child with the grandparents during the 1999 ... school year and had a visitation period with the child in April, 2000. During said visitation an incident occurred between the child and the mother’s current husband. The testimony presented shows that the child became involved in a dispute with his step-brother in a swimming pool which escalated into the step-father holding the child by his feet above the concrete side of the pool. Matters continued to degenerate after all parties had returned to the apartment and the mother’s hand was broken during the process of whipping the child with a belt. The mother and her husband contend that the child threatened suicide, but this is simply not borne out. In any event, the mother and her husband had the child admitted into a psychiatric hospital two days later. There is no evidence that they sought immediate medical help for the child. In the opinion of the Court, the action of the mother was a gross and inappropriate reaction to the situation.
“ ‘One of the most telling points of the evidence was when the child testified and in response to a question of why he wanted to live with his grandparents, he stated “I feel safe there.” This is a concise summation of this child’s turbulent life. He is safe with his grandparents. While he loves his mother and wants to visit her, her instability has in the past placed him at risk.
“ ‘This Court is hesitant to place a child in the custody of grandparents when there is a viable parental alternative. There is no such alternative here. The child is where he should be, and custody is vested with the grandparents.’ ”

806 So.2d at 397.

On remand, the trial court entered a judgment providing, in pertinent part, as follows:

“This Court has followed the instructions of the Court of Civil Appeals after remand on this cause. The case was remanded for determination as to whether the standards of Ex parte Terry, 494 So.2d 628 (Ala.1986), have been satisfied in regard to the parental presumption of custody as against a non-party. Specifically, the Court of Civil Appeals held there was not an express finding as to the fitness of the natural mother as a parent.
“From a review and reconsideration of all submissions at trial, the Court finds there is competent evidence showing this parent to be unfit and improper to fulfill her parental duties and obligations to this child, and that this evidence is clear and convincing in nature.
“It is obvious that this is a harsh finding from the perspective of the mother, but after a two day ore tenus trial, and subsequent consideration and reconsideration of the evidence, it is the opinion of this Court that the finding is warranted and necessary. The mother’s inherent instability has led her through numerous relationships and situations which were dangerous and destructive to both herself and the child. There is no evidence to support a finding that this behavior will change in the future. She sees her child as something she needs, and cannot perceive the needs of the child. She cannot perceive the harm she does to the child in the situations she creates through personal decisions, and her solutions are physically, mentally, and emotionally dangerous to the child. ‘Unfit’ is a broad term which may include a vast number of conditions, behaviors, and conduct.
“Accordingly, after careful review of the opinion of the Court of Civil Appeals in this case and the opinion of the Alabama Supreme Court in Ex parte Terry, this Court expressly finds that the standard[s] of Ex parte Terry have been satisfied and that this mother is unfit as a parent for this child according to those standards.”

The mother filed a postjudgment motion, but no action was taken on the motion, thus causing it to be denied by operation of law (see Rule 59.1, Ala. R. Civ. P.).

The mother has again appealed, raising the same three issues she raised on her first appeal. We reached the merits of the first of these issues, which involves an evidentiary matter, in deciding the first appeal:

“The mother first contends that the trial court erred in admitting testimony of incidents that had occurred before the trial court entered its March 19, 1998, order [awarding the grandparents visitation with the child]; she argues that that order was a judgment denying an earlier petition for custody filed by the grandparents. The record does not contain a copy of that order, nor does it contain copies of any of the pleadings filed in that proceeding. However, the transcript of the testimony adduced during the ore tenus proceeding on the grandparents’ April 2000 custody petition reveals that the terms of the March 1998 order were agreed upon by the parties, rather than having been dictated by the trial court in the first instance.
“ ‘Generally, in a custody modification proceeding, one is limited to presenting evidence that relates back only to the last custody judgment.’ Taylor v. Hogan, 673 So.2d 453, 455 (Ala.Civ.App.1996). However, we have recognized an exception to that general rule in custody-modification proceedings wherein the earlier judgment awarding custody was based upon an agreement of the parties and the facts sought to be adduced were not' disclosed in the proceeding giving rise to the earlier consent judgment. E.g., Handley v. Taylor, 638 So.2d 8, 9 (Ala.Civ.App.1994) (holding that where an earlier custody judgment did not follow a trial, the trial court erred in failing to consider, in a later modification proceeding, the conduct of the parties before that earlier judgment was entered).
“This case is similar to Handley, in that the trial court’s March 1998 order was entered pursuant to the parties’ agreement. Therefore, the issue of the parties’ conduct committed before the court entered the March 1998 order was not, in the language of Handley, ‘rehashed’ in the ore tenus proceeding on the grandparents’ April 2000 custody petition. Moreover, Seibert v. Seibert, 611 So.2d 375 (Ala.Civ.App.1992), the sole case cited in the appellant’s brief on this issue, is not to the contrary — the evidence relied upon by the appellant in Seibert, unlike the evidence the mother complains of in this case, had been adduced in various contested hearings leading up to an initial (unreviewed) custody judgment. Therefore, the trial court did not err in admitting evidence concerning the parties’ conduct committed before it entered its March 1998 order.”

C.P., 806 So.2d at 396-97. We note that neither the mother nor the grandparents sought certiorari review of our previous judgment; thus, our conclusion that the trial court did not err in considering the evidence challenged by the mother was a substantive determination that constitutes the law of the case, and is not subject to reexamination on this appeal. See Walker v. Norfolk S. Ry. Co., 765 So.2d 665, 667 (Ala.Civ.App.2000).

The mother’s remaining two issues concern whether the trial court properly awarded custody of the child to the grandparents. When a trial court “makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong.” Ex parte Byars, 794 So.2d 345, 347 (Ala.2001). “The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case.” Id. (emphasis added).

As to the substantive burden that the grandparents bore, we again quote from our earlier opinion:

“In Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), our Supreme Court noted that in order for a nonparent to overcome a natural parent’s right to the custody of his or her child, there must be either ‘a showing of voluntary forfeiture of that right’ by the natural parent or a finding of ‘misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.’ Such a finding must be made based upon ‘clear and convincing’ evidence. Id. at 630.”

806 So.2d at 397-98. The trial court’s judgment on remand indicates that that court considered the principles of Terry in awarding custody of the child to the grandparents.

The record from the previous appeal (of which this court may take judicial notice, see Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966)), indicates that the mother has lived with various men out of wedlock since the child’s third birthday. While living with one paramour, the mother began dating a second man and married him in 1993. However, the mother’s relationship with this man, i.e., her second husband after the child’s father, was quite stormy; the mother testified to having had physical altercations with her second husband that the child had witnessed and to having had to “call the police out on [the husband] ... [n]umerous times” during their six-year relationship. The mother also testified that her second husband had threatened both her life and the child’s life on several occasions, ultimately causing her to seek a divorce and a restraining order; the child described having been threatened with a gun by the mother’s second husband.

In addition, the mother admitted having lived in approximately 17 different homes during the child’s 11 years, and there was evidence indicating that the child had already been in three different school systems by September 1999, when the mother asked the grandparents to let the child live with them during the 1999 school year. At that time, the mother was not working, but was enrolled in school on a full-time basis and admitted that she had had “plenty of time” to take care of any problems the child may have had.

In September 1999, the child enrolled in an elementary school located near the grandparents’ home. The child testified that he liked being in school there, calling it “kind of safe” and indicating that he had more friends there than at previous schools. While the child’s grades at the school were initially quite low, there was evidence indicating that the child’s academic performance had improved to some extent during the second half of the school year and that the child had ultimately passed all subjects except mathematics. One of the child’s teachers testified that while the child had been disruptive in class and had exhibited signs of mild attention-deficit disorder, the grandparents and the child’s father had worked with the child’s teacher to improve the child’s behavior.

The principal incident prompting the grandparents to seek custody of the child, what the grandmother termed the “last straw,” arose during the child’s visit to the mother’s apartment during April 2000. Just before that visit, the mother had married a third time, and her new husband and two of his children from a previous marriage had moved in with the mother. On the Thursday before Easter Sunday, the child was involved in a water fight in an apartment swimming pool with his new stepbrother and stepsister that escalated to blows. The mother’s new husband picked the child up and held the child by the feet over the swimming pool and caused the child’s head to hit the walkway near the pool and subsequently placed his hands around the child’s neck, hurting the child. Later that day, the child’s stepbrother taunted him, prompting him to shove the stepbrother; the mother responded by taking the child into a bedroom and whipping him with a large belt. During this administration of punishment, the mother broke her hand, after which she retreated to her bedroom and slammed the door in the child’s face. The stepfather then again placed his hands around the child’s neck while asking “What did you do?”

There is considerable dispute concerning the following events. According to the mother’s testimony, the child began banging his head in his room and later said that he wished he were dead and that he wanted to kill himself. The child testified that he simply lay his head against a wall because he was “thinking what they would do to me,” and that he said that he “didn’t want to be here,” i.e., “at that house.” However, it is undisputed that the mother and the stepfather did not seek any medical or psychological treatment for the child on that day. Rather, after the child telephoned the grandparents (with the mother’s permission) and asked them to meet him at a local store the next morning (Good Friday), the mother telephoned the grandparents and said that they would not be coming that morning.

Two days later, on Saturday, citing the child’s alleged suicide threats, the mother and the stepfather placed the child in a secure mental institution in Birmingham. Although the mother told the grandparents that the child had been placed in a mental facility, neither the mother nor the stepfather told the grandparents the name of the facility into which the child had been placed, and both refused to respond to telephone calls from the grandparents concerning the child’s placement. Although the child had been in the grandparents’ care for practically all of the preceding 10 months, the grandparents were unable to locate either the mother’s or the child’s exact whereabouts during the succeeding week, and it was only by obtaining an emergency pendente lite custody order that they were able to locate the child and return him to school near their home. While there is some indication that the child, although basically a normal child for his age, has some psychological problems, there is no evidence that the child has made any suicidal acts or threats since his return to the grandparents’ home, and the child testified that he felt “safe” living with his grandparents.

In considering the totality of the evidence, the trial court could properly have concluded that the child’s welfare had suffered because of the mother’s choices to uproot frequently and to remain in an abusive and dangerous relationship with her second husband, that the mother’s current husband had used disciplinary tactics that had endangered the child, and that the mother had grossly and inappropriately reacted to the child’s behavior. Notably, the trial court determined that the existence of the child’s alleged suicide threat was “simply not borne out,” despite the mother’s evidence concerning the child’s alleged statements regarding suicide to be credible, and its judgment noted the two-day lapse between the alleged statements and head banging and the child’s placement in a mental institution without notice to the grandparents, his then-primary caregivers. We agree with the trial court that the grandparents fulfilled their burden of demonstrating that the mother was “ ‘guilty of such misconduct or neglect to a degree which renders [her] an unfit and improper person to be entrusted with the care and upbringing of the child in question.’ ” Terry, 494 So.2d at 632 (quoting Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983)) (emphasis omitted).

Having concluded that the trial court’s finding of unfitness was not plainly and palpably wrong, the question arises whether placement with the grandparents is in the child’s best interests. In this regard, the mother contends that the grandparents should not have been awarded custody of the child because of the presence of the child’s father, i.e., the grandparents’ son, in the grandparents’ home, as well as the grandparents’ alleged past condonation of their son’s sexual conduct with the mother when she was a teenager.

However, the evidence before the trial court tends to show that the grandparents are stable and settled community citizens, that the child has thrived in the grandparents’ care, and that he prefers living with the grandparents and attending school there. The record also contains testimony that the grandparents’ son is frequently out of town, that he lives in a downstairs apartment on the grandparents’ property, and that he had not been intoxicated in the presence of the child. Although the child gave testimony that he had seen his father drink alcohol “a few times,” and that his father had occasionally come home “sleepy” or “ill,” he denied having seen his father drunk, and denied having received physical discipline from the father except on one occasion when the child’s principal had paddled him earlier in the day. There was no evidence presented indicating that the father’s presence in the home had had any demonstrable negative effect on the child during his time in the grandparents’ custody. Moreover, there was evidence before the trial court indicating that the grandparents had been attentive to the child’s needs during their period of custody, and the trial court could properly have discounted their alleged condonation of their son’s sexual relationships, including his relationship with the mother before their marriage during the 1980s, as immaterial to their fitness as parents.

Based upon the foregoing evidence and authorities, we conclude that the trial court properly awarded custody of the child to the grandparents based upon the mother’s unfitness as a parent. That court’s judgment is due to be affirmed.

AFFIRMED.

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

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I respectfully dissent. The grandparents were required to prove, by clear and convincing evidence, that the mother is unfit. See Ex parte Terry, 494 So.2d 628 (Ala.1986). Both grandparents testified that the mother had been a good mother. In fact, the root of the grandparents’ problem with the mother is her decision to admit the son to a mental-health-care facility after he, according to the mother and stepfather, stated an intention to take his own life. The mother may have, as the grandparents contend, overreacted; however, her decision was made in good faith based upon a recommendation by a mental-health professional. Accordingly, I do not believe that the grandparents presented clear and convincing evidence indicating that the mother is unfit. Accordingly, I would reverse the trial court’s award of custody to the grandparents.

      . The mother moved again during the pen-dency of the case, and testified that she and her current husband were planning yet another move.

      . The child testified to having received grades ranging from excellent to failing while in school in Tuscaloosa immediately before coming to live with his grandparents.

      . Based on the child's testimony, it would appear that the stepfather's use of a neck hold — what the child called "the neck thing" — is common, and that doing so always hurts the child.

      .The grandparents denied ever having heard the child make similar statements to them during their care of the child.


author: SHAW, Judge.

text:
    Vernon M. CHESTANG v. STATE of Alabama.
    CR-00-0130.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 21, 2001.
    Certiorari Denied May 31, 2002 Alabama Supreme Court 1010517.

      Dennis K. Knizley, Mobile; and Louis Daniel Mims, Mobile, for appellant.
    Bill Pryor, atty. gen., and E. Vincent Carroll, deputy atty. gen., for appellee.
   On Return to Remand

SHAW, Judge.

The appellant, Vernon M. Chestang, was indicted for intentional murder, a violation of § 13A-6-2(a)(l), AIa.Code 1975. A jury found him guilty of the lesser-included offense of reckless manslaughter, see § 13A — 6—3(a)(1), Ala.Code 1975. The appellant was sentenced to 20 years’ imprisonment. We reverse and remand.

I.

The appellant contends that the trial court erred in denying his motion for a judgment of acquittal made at the close of the State’s case because, he says, “the State had failed to prove each and every material allegation of the indictment and further, that a reasonable jury could not reasonably conclude the State had proved beyond a reasonable doubt that he had not acted in self-defense.” (Appellant’s brief at p. 16.) The appellant specifically argues that the State’s evidence failed to prove a prima facie case of murder and, therefore, that his conviction should be reversed and a judgment rendered in his favor. We hasten to point out, however, that the appellant was not convicted of murder. Although the indictment charged him with murder, the jury found the appellant guilty of the lesser-included offense of reckless manslaughter. Therefore, manslaughter is the only charge subject to appellate review. See, e.g., McCain v. State, 611 So.2d 1123, 1124 (Ala.Crim.App.1992) (“The charge upon which the conviction rests is the only charge that is subject to appellate review.”). See also Williams v. State, 695 So.2d 644 (Ala.Crim.App.1996); and Gagliardi v. State, 695 So.2d 206 (Ala.Crim.App.1996). The appellant does not argue on appeal the sufficiency of the evidence to sustain his conviction for manslaughter; therefore, there is nothing for this Court to review. However, even assuming, arguendo, that the sufficiency issue were before this Court for review, we would decide it adversely to the appellant.

“ ‘In 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 1033, 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). (Emphasis in Bankston.)

The evidence adduced at trial showed that Donald Eckoff, Sr., died on August 7, 1999, as a result of a gunshot wound to the heart, which he sustained during an argument with the appellant. The State presented evidence indicating that earlier that same evening, Eckoff and the appellant had exchanged insulting gestures and had engaged in a verbal altercation as the appellant left his driveway and passed Eck-off s home. The appellant and Eckoff had been neighbors for approximately two years. From the date Eckoff had purchased the property he lived on from the appellant’s ex-wife, the two men had a history of trading insults and obscene gestures. Testimony revealed that Eckoff also had a similar history with other neighbors.

On August 7, 1999, after the appellant returned home, he and Eckoff, who was outside securing his vehicle and putting away a garden hose, again engaged in verbal sparring. Although there were no eyewitnesses to this second argument, there is no dispute that during this argument, the appellant shot and killed Eckoff.

After he shot Eckoff, the appellant telephoned emergency 911, summoning police and medical assistance. A .22 caliber revolver was found on a couch in the living room of the appellant’s home. The appellant asserted that Eckoff had charged him while Eckoff was reaching into his pocket. He claimed that he shot Eckoff in self-defense. It was later determined that Eckoff was unarmed during the confrontation that led to his death.

Officer Armond Campbell of the Mobile Police Department responded to the incident. He testified that he was dispatched in response to a complaint by a person who stated that he had shot his neighbor. According to Officer Campbell, when he arrived at the scene, he saw Eckoff lying in the yard, and was told by a neighbor that the appellant was inside his home. He stated that the appellant gave a statement in which he admitted “that he had shot his neighbor and that his neighbor was always messing with him.” (R. 336.) Officer Campbell testified that the appellant informed him that Eckoff had “charged” and had reached into his pocket, and that he believed that Eckoff was going to pull a gun. (R. 339, 342.) Officer Campbell also testified that the appellant stated that he had called the police as a result of Eckoff s behavior on at least four occasions, and that Eckoff had previously threatened him with a weapon. According to Officer Campbell, the appellant indicated that he had not intended to kill Eckoff, and “that he hoped the guy was all right.” (R. 339-40.)

Section 13A-6-3(a)(l), Ala.Code 1975, provides, in pertinent part, that “[a] person commits the crime of manslaughter if ... [h]e recklessly causes the death of another person.“A person acts recklessly with respect to a result or to a circumstance ... when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.” § 13A-2-2, Ala.Code 1975.

There is no dispute that the appellant caused Eckoffs death. Based on the evidence presented at trial, the jury could have reasonably concluded that the appellant recklessly caused Eckoffs death by firing at him with a pistol. Although the appellant claimed that he acted because he believed Eckoff was reaching for a weapon, the evidence at trial revealed that Eck-off was, in fact, unarmed. In most cases, the issue of self-defense is one of ultimate fact for determination by the jury. King v. State, 478 So.2d 318 (Ala.Crim.App.1985). “ ‘Where, as here, the killing was admitted, the question of whether or not it was justified under the theory of self-defense was a question for the jury.’ ” Quinlivan v. State, 627 So.2d 1082, 1087 (Ala.Crim.App.1992), quoting Townsend v. State, 402 So.2d 1097, 1098 (Ala.Crim.App.1981).

Moreover, we note that any “inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [goes] to the weight of the evidence and [creates a question] of fact to be resolved by the jury.” Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). “ ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the [trier of fact] to judge and determine.” ’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), rev’d on other grounds, 576 So.2d 1281 (Ala.1991), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting, in turn, Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931). “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.” Johnson, 555 So.2d at 820. Furthermore, “ ‘[t]his Court must view the evidence in the light most favorable to the State, and “draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact.” ’ ” D.L. v. State, 625 So.2d 1201, 1204, (Ala.Crim.App.1993), quoting Woodberry v. State, 497 So.2d 587, 590 (Ala.Crim.App.1986).

We conclude that the evidence was sufficient to submit the reckless manslaughter charge to the jury. The evidence, if believed by the jury, could reasonably support a finding that the appellant recklessly caused Eckoffs death, see Johnson v. State, 571 So.2d 375, 377 (Ala.Crim.App.1990), cert. denied, 596 So.2d 656 (Ala.1991), and it was sufficient to refute the appellant’s claim of self-defense and to warrant sending the issue to the jury. Therefore, the trial court did not err in denying the appellant’s motion for a judgment of acquittal.

II.

The appellant also argues that the trial court failed to adequately charge the jury on self-defense and, therefore, that he is entitled to a new trial. Specifically, he argues that the trial court erred in denying his written requested jury instruction number 19, which read as follows:

“While threats alone will not serve as a justification for homicide, if the jury believes from the evidence that the deceased, at the time [of] the homicide was manifesting an intention to carry such threats into execution, by a positive act then done or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.”

(C. 35.)

Despite his concession that the trial court accurately charged the jury on the general law of self-defense, the appellant contends that under the authority of Quinlivan v. State, 555 So.2d 802 (Ala.Crim.App.1989), cert. quashed as improvidently granted, 596 So.2d 658 (Ala.1991), the trial court’s instructions nevertheless “fail[ed] to emphasize properly the state of mind of the defendant at the time of the fatal altercation, and the possibility that the prior or contemporaneous threats of the deceased would have impacted the defendant’s state of mind.” (Appellant’s brief at p. 15.) We agree.

The appellant argues that the facts in the present case fall under the rule stated in Quinlivan, a case in which this Court determined that a defendant was entitled to an instruction virtually identical to the one requested by the appellant. In Quin-livan, the appellant argued that immediately before he fatally shot the victim, the victim had threatened him with a knife under circumstances indicating the victim’s intent to harm him with the knife. The State argues that Quinlivan is not controlling because, it says, there is no evidence in this case indicating that Eckoff threatened the appellant on the day of the fatal altercation. As previously noted, however, the record here indicates that the appellant and Eckoff were neighbors and that their relationship was very hostile. There is no dispute that the appellant and Eckoff had a long history of trading insults, including an altercation earlier on the day of Eckoffs death when Eckoff had threatened the appellant with bodily harm.

In support of his argument that he believed a threat existed, the appellant points to testimony by two witnesses for the prosecution. Darren Eckoff, Eckoffs son, testified that earlier in the evening on the day of his father’s death, Eckoff and the appellant had had an altercation during which both parties called each other names and exchanged insulting gestures. Darren Eckoff stated that during that altercation Eckoff had told the appellant several times to “get out of the truck,” so that “he could have a physical confrontation with him.” (R. 217.) This exchange took place while Eckoff and his family were standing in the driveway of Eckoffs home and the appellant and his girlfriend were stopped in the appellant’s vehicle at the end of Eckoffs driveway. (R. 200.) It appears from the record that the appellant instigated this confrontation by making an obscene gesture toward Eckoff and his family, and that the appellant’s language was as insulting as that used by Eckoff. Furthermore, the appellant’s reply that “if [he] got out of the truck, [Eckoff would] lose,” was as threatening as Eckoffs demand for the appellant to exit his vehicle. Even so, the evidence indicating that Eckoff challenged the appellant to get out of his vehicle at least created an inference for the jury that Eckoff had threatened the appellant with bodily harm. More importantly, however, there was additional evidence that Eckoff had made remarks at a real estate closing approximately two years before Eckoffs death indicating that he had made a death threat against the appellant.

Fannie Beck Wilson, the real estate agent present at the closing at which Eck-off purchased the property adjacent to the appellant, testified:

“Q. All right, Ms. Wilson, at the closing on October 28, 1997, tell the jury everything you heard Mr. Eckoff say about Vernon Chestang.
“THE WITNESS: ... I recommended to the other agent to get— please, get a survey. I was not sure where the corners were. They did.
“Q. And what happened?
“A. They had pulled a line from the back to the front corner.
“Q. Who had pulled a line?
“A. I’m assuming Mr. Eckoff.
“Q. Okay. And did y’all discuss that at the closing?
“A. Yes.
“Q. And what was discussed about the line?
“A. He said he told Mr. Chestang that if he ever crossed that line, he would give him three choices, he would shoot, he would cut him half [in two] with a chain saw or he would do something and throw him in the river and I don’t remember what the something else was.”

(R. 421-22.) (Emphasis added.) There was also testimony from Eckoff s wife, who was present at the closing, that Eckoff never stated that he had made such threats against the appellant.

Finally, the record indicates that Officer Campbell testified as follows with respect to his questioning of the appellant immediately after the shooting:

“Q. Okay. Did he tell you that Mr. Eckoff reached in his pocket?
“A. Yes, sir.
“Q. And did he tell you that he thought Mr. Eckoff was going for a gun?
“A. Yes, sir.
“Q. And did he tell you that because he thought he was going for a gun, Mr. Chestang shot him to defend himself?
“A. He said — what did he say?
“Q. Yeah.
“A. He said he shot him because he reached into his pocket and he didn’t know what to do.
“Q. Okay.
“A. And he didn’t know what, you know, he was going for. He figured he might have been going for a gun, so he didn’t know what to do.
“Q. Did he tell you that he had called the police against Mr. Eckoff on at least four occasions?
“A. Yes, sir.
“Q. Did he specifically tell you — he, Mr. Eckoff, charged towards Mr. Ches-tang and reached into his pocket?
“A. Yes, sir, he told me that.
“Q. Did he tell you that Mr. Eckoff had pointed a weapon at him in the past?
“A. I think he said that he had showed him — threatened him with a gun or showed him a gun in the past.
“Q. Officer, do you remember — let me make sure I got the record straight on this. Do you remember, specifically, whether he told you that the victim had — Mr. Eckoff had pointed a gun at him in the past?
“A. I remember him telling me that he had shown a gun to him while he was threatening him, but I can’t remember him telling me that he pointed it.
“Q. Let me show you a—
“THE COURT: Just a moment.
“(BRIEF PAUSE.)
“Q. Let me show you a document and ask you if you can identify that document for us?
“A. Yeah, this is my narrative.
“Q. All right. Is that in your handwriting?
“A. Yes, sir.
“Q. And is that a document that you routinely prepare in connection with cases that you’re assigned to?
“A. Yes, sir.
“Q. All right. Let me show you a place on here and ask you to read this to yourself and then I’ll ask you, again, starting right there.
“A. (Witness complies.) Right.
“Q. Read that sentence to us, starting with the word, subject.
“A. Okay. Subject said that the victim has pointed a weapon at him before. Subject did not call the police.
“Q. All right. So it said, subject said the victim has pointed a weapon at him before, but the subject did not call the police, correct?
“A. Yes, sir.
“Q. All right. So now that you’ve read that, do you now remember that he did say that Mr. Eckoff had pointed a gun at him rather than just showing a gun to him?
“A. Yes, sir.”

(R. 338-41.) (Emphasis added.)

This Court and the Alabama Supreme Court have consistently held that a requested jury instruction, like number 19 here, must be given when there is evidence, no matter how weak, insufficient, or doubtful in credibility, indicating that threats were made by the victim “at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death.” Quinlivan, 555 So.2d at 804. An accused is entitled to such an instruction whenever some evidence of self-defense was offered and some testimony of a threat and its attempted execution was presented. Moreover, the requested jury instruction is required even though the trial court fully and fairly instructed the jury on the general law of self-defense, because the general law of self-defense does not cover the specific situation covered in the requested instruction. See Quinlivan v. State, supra. See also Ex parte Traweek, 380 So.2d 958 (Ala.1979); Hunter v. State, 295 Ala. 180, 325 So.2d 921 (Ala.1975); Karr v. State, 100 Ala. 4, 14 So. 851 (1894); Nelson v. State, 397 So.2d 198 (Ala.Crim.App.1981); Wiggins v. State, 398 So.2d 780 (Ala.Crim.App.1981); Williams v. State, 406 So.2d 1053 (Ala.Crim.App.1981). It does not appear that the requested instruction would be necessary based solely on the evidence of the earlier altercation that took place on the day of Eckoffs death. Although a jury could infer that Eckoff had threatened the appellant with some form of bodily harm, the evidence did not indicate that Eckoff had threatened the appellant with a weapon or had otherwise threatened the appellant with deadly physical force. However, the evidence indicating that Eck-off had previously threatened the appellant with a gun, or had otherwise made death threats against the appellant, bring the case within the rule stated in Quinlivan and the cases on which that decision was based.

On the authority of the cases cited above, the appellant’s conviction is due to be reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, PH., and COBB and BASCHAB, JJ., concur. WISE, J„ dissents, with opinion.

WISE, Judge (dissenting).

I respectfully dissent from the majority opinion reversing Chestang’s conviction on the basis that the trial court refused to give an instruction on self-defense requested by Chestang and the instruction the trial court gave on self-defense “does not cover the specific situation covered in the requested instruction.” 837 So.2d at 874. In my opinion, the evidence did not support Chestang’s requested additional charge on self-defense. Based on the facts of this case, I do not believe that Eckoffs remarks to Chestang on the day of the fatal altercation constituted a threat; thus I believe this case is distinguishable from Quinlivan v. State, 555 So.2d 802 (Ala.Crim.App.1989), relied upon by the majority. Therefore, I dissent.

      . By order issued on July 13, 2001, this Court remanded this cause to the trial court for that court to clarify whether it had applied the firearm-enhancement statute in sentencing the appellant. See § 13A-5-6(a)(5), Ala.Code 1975. One of the issues presented by the appellant was that the trial court had "inappropriately applied the firearm enhancement statute in determining [his] sentence.” (Issue III in the appellant’s brief at p. 20). See, e.g., Ex parte McCree, 554 So.2d 336 (Ala.1988) (holding that the firearm-enhancement statute does not apply to convictions for reckless manslaughter); and Railey v. State, 710 So.2d 477 (Ala.Crim.App.1996), cert. quashed as improvidently granted, 710 So.2d 479 (Ala.1998) (same). The appellant conceded in his brief that "the record [wa]s unclear as to whether [he] was sentenced pursuant to the firearm enhancement statute.” (Appellant's brief at p. 22.) On return to remand, the trial court has submitted an order indicating that it did not apply the firearm-enhancement statute to the appellant's sentence. The appellant's sentence of 20 years was within the statutory range for reckless manslaughter. See § 13A-6 — 3(b), Ala.Code 1975 (defining reckless manslaughter as a Class B felony); and § 13A-5-6(a)(2), Ala.Code 1975 (setting the punishment for Class B felonies at "not more than 20 years or less than 2 years”). Therefore, the appellant's claim that the trial court improperly applied the firearm-enhancement statute is meritless.

      . We note that the appellant did challenge the sufficiency of the evidence to sustain his conviction for manslaughter in the trial court; he filed a posttrial motion for a judgment of acquittal, specifically alleging that the State failed to present sufficient evidence to establish reckless manslaughter.


author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Troy H. SMITH v. STATE.
    CR-99-1843.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 2, 2001.
    Certiorari Denied May 31, 2002 Alabama Supreme Court 1010314.
    Mose Lee Sudduth, Jr., Columbus, Mississippi, for appellant.
    Bill Pryor, atty. gen., and G. Ward Bee-son III, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, SHAW, and WISE, JJ„ concur.

COBB, J., concurs in part and dissents in part, with opinion.

COBB, Judge,

concurring in part and dissenting in part.

I agree with the majority’s unpublished memorandum as to Issue I. I dissent as to Issue II, regarding the application of the firearm enhancement. See Judge Shaw’s special writing in Poole v. State, [Ms. CR-99-1200, Aug. 31, 2001] 837 So.2d 885 (Ala.Crim.App.2001). As to those points of law on which I disagree with Judge Shaw, see my special writing in Poole, supra.


author: McMILLAN, Presiding Judge. BASCHAB, Judge,

text:
    James Farentino MADDEN v. STATE.
    CR-00-2498.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Steven K. Aldridge, Florence, for appellant.
    Bill Pryor, atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

I must respectfully dissent from the majority’s unpublished memorandum. The record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Therefore, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995).